Document Type

Article

Publication Date

5-2001

Keywords

Bar admission, Freedom of speech, Racial equality, Hate speech, Matthew Hale, Baird v. State Bar of Arizona, Legal ethics

Disciplines

Civil Rights and Discrimination | Constitutional Law | First Amendment | Fourteenth Amendment | Legal Ethics and Professional Responsibility

Abstract

The application of the constitutional free expression guarantee to the activities of the organized bar is one of the most important unexplored areas of legal ethics. In this essay I will consider in particular the question of whether an applicant may be denied admission to the bar for involvement with hateful or discriminatory activities. This question reveals the tension between the first amendment principle, established after the agonizing struggles of the McCarthy era, that no one may be denied membership in the bar because of his or her beliefs alone, and the plenary authority of bar associations to make predictive judgments about the character and fitness of applicants and their ability to function as lawyers. It is also the most recent iteration of the running clash between two constitutional values—freedom of speech, as enshrined in the First Amendment, and racial equality, embodied in the Fourteenth.

In this essay I will discuss the constitutional issues presented in bar admissions cases by focusing on the controversy surrounding the application of Matthew Hale, an avowed white supremacist, to the Illinois bar. The Illinois bar committee denied Hale’s application on the ground that he was unlikely to comply with a state disciplinary rule prohibiting racial discrimination. As this case shows, the application of hate speech regulations to the organized bar is complicated by the disciplinary structure under which lawyers operate, and by the ethical traditions of the practice of law.

In the bar admissions and hate-speech cases, courts must grapple with a question of priority, namely, whether to elevate the constitutional value of racial equality over the expressive and associational liberties of lawyers and bar applicants.

Comments

This article pre-dates the author’s tenure at Cornell Law School.

2000 Joe E. Covington Prizewinner

This essay was adapted from a longer work, entitled Free Speech for Lawyers, 28 Hastings Const. L.Q., no. 2 (2001).

Publication Citation

Published in: The Bar Examiner, vol. 70, no. 2 (May 2001).