“At long last, have you left no sense of decency?” With that attorney Joseph Welch effectively ended Senator Joseph McCarthy’s which hunt against alleged “Communists”. Americans were able speak more freely and we assumed “witch hunts”, were a thing of the past.
Lawyers have always been in the forefront, protecting freedom of speech. The Bill of Rights and much of our United States Constitution was written by lawyers. In Texas, our 1976 Constitution and guarantees of free speech were promulgated by attorney and former Governor Richard Coke.
Today however, I am dismayed and disgusted as The State Bar of Texas with the backing of some of our 106,000 lawyers, are trying to censure and remove State Bar President Larry McDougal for exercising his free speech. We have had several ‘emergency” meetings and another one is scheduled for September 10.
In 2015 McDougal opined “Black Lives Matter” was a terrorist organization. He later authored a legal opinion, where he concluded that BLM T-shirts at a polling station were illegal. While I disagree, they have nothing to do with the State Bar. In 2015 he was not even considering a bar office.
Lawyers, all possessing graduate degrees, are screaming “Racist” at anyone who defends McDougal. In several Facebook attorney-only discussion groups, anyone who supports him is muted, or removed. What is “racist”? State Bar Director Carra Miller representing Corpus Christi and Victoria, believes the definition is generational. Older people believe a statement must have bigoted intent to be racist. The younger generations are result-oriented and condemn statements with a racist effect.
Can someone attack an organization such as Black Lives Matter without being bigoted against Blacks? Those who actually know McDougal swear he is not racist. These are difficult issues, and in today’s heighted racial climate, there is little intelligent discourse, as accusations of racist, especially if the recipient is white, are guaranteed social media “likes” and applause. Conservative-free speech attorneys stay hidden. When asked to speak out, they decline.
The State Bar which is prohibited from politics, has been sued in McDonald v Sorrells and the basis for the suit, is that we are a political organization and basically take “liberal” or “social activist” positions. Plaintiffs hope to end the mandatory state bar forcing lawyers to join and pay dues. While the state bar is not democratic, I doubt McDougal would have been castigated if he espoused progressive social opinions. I’m a Democrat and generally liberal on social issues, however the right to free speech, even for conservative viewpoints, is paramount to a democratic society. Those who demand McDougal’s censure and removal reluctantly concede the existence of a 1st Amendment, but claim there are “consequences” and demand he must pay. “Consequences”? Short of placing McDougal before a firing squad what might they be? There is no free speech, if by exercising it, he is removed or censured from the office to which he was elected.
Luckily for McDougal, there is no provision to remove a State Bar President for his opinions, however the Bar has discussed it. In addition, recent case law allows McDougal to sue for damages, if they try to muzzle him. Houston Director Alistair Dawson made a motion to strip McDougal of his ability to speak for the bar, however I killed it with a “not so friendly amendment” that Mr. Dawson and any other directors who support it, pay the resultant legal damages. I would expect demands of censure and removal from an angry street mob, however an angry street mob of licensed attorneys, should know the rules and the caselaw.
On September 10, there will be another public State Bar meeting on the Youtube State Bar of Texas Channel, The public is invited to comment and watch the attacks on free speech. It won’t phase me, because I agree with George Orwell, the author of “1984” “If liberty means anything at all, it means the right to tell people what they do not want to hear.”
Attorney Steve Fischer is an elected State Bar Director from El Paso and previously was elected from the Corpus-Victoria district. He is a former Aransas County resident, and serves on the State Commission on Judicial Conduct. He also created the first Facebook Texas Attorney discussion groups.