A California lawyer with a low-profile Twitter account tapped out a string of vague but menacing tweets related to ongoing civil-rights protests. When she clicked “post,” she found herself testing the overlap between legal ethics and free-speech protections. Applying First Amendment law, a state bar court dismissed the disciplinary charges, finding that no matter how “unbecoming” those tweets were, prosecutors failed to offer evidence that her audience—however large or small—would have understood her tweets as immediate incitements to violence.
In late May 2020, in the days following George Floyd’s death at the hands of police in Minneapolis, protests sprang up across the country. Downtown Los Angeles was a hotspot: hundreds gathered for demonstrations that, at least on occasion, spilled over into lawlessness and violence. On the evening of May 30, unrest swirled into a high-end shopping mall called The Grove, where protestors set fire to a police kiosk.
At her home near The Grove, a police-union lawyer named Marla Anne Brown was logged onto Twitter. Brown had, in fact, been active online for several days, and she had been tweeting about protests, both far and near. Among Brown’s tweets was one saying “they should be shooting the looters” and another responding to MSNBC political commentator Joe Scarborough, “Omg Scarborough you’ve hit a new low in stupidity. Let’s go burn your house down with you in it.”
Brown’s first rebuke came quickly. The next day, several longtime legal colleagues contacted Brown and expressed consternation. Media outlets, including the L.A. Times, called the same day. After changing her Twitter bio and posting several apologetic tweets, Brown deleted her account altogether.
Lawyers for the State Bar of California charged Brown with professional misconduct based on her Twitter activity, including a count of “moral turpitude by directing others to commit acts of violence.” Brown’s defense centered on the First Amendment. As Brown saw it, her tweets, however ill-advised, were “rhetoric used to express her feelings about the events unfolding around her.” As a result, Brown insisted, those tweets could not “form the basis for professional discipline.”
The state bar court agreed and dismissed all counts against Brown. The bar court began with a simple statement of First Amendment protection: the First Amendment’s broad protections apply to “all citizens, including lawyers,” and cover “even blatantly ‘offensive or disagreeable’ speech.” Invoking Brandenburg v. Ohio, however, the bar court recognized that speech advocating for the use of force may lose protection, at least when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The bar court took pains to note that Brown’s tweets were “unbecoming of an attorney.” But the bar court found that because those tweets were “pure speech…otherwise protected by the First Amendment,” they would lose that protection only if bar counsel could show that Brown intended to “incite imminent lawless action,” that Brown’s tweets “were likely to be heard by an audience that would understand her intent,” and that “such imminent lawless action was likely to occur as a result of her tweets.” In the end, the bar court concluded that bar counsel had not made any of those showings, and the disciplinary case against Brown failed as a result.
The burden of proof may have made all the difference. “[Bar counsel] had a very high evidentiary bar to overcome,” offers John M. Barkett, Miami, FL, the ABA Litigation Section’s liaison to the ABA Standing Committee on Ethics and Professional Responsibility. Barkett adds that Brown’s “conciliatory and apologetic” attitude and the First Amendment’s coverage of “even odious speech make it difficult to question the outcome.”
While Brown’s tweets were characterized as being “communicated in her capacity as a private citizen,” attorneys should not rely on that distinction in their day-to-day communications. “We never take off an ‘attorney hat’ and put on a ‘private citizen hat,’” advises Jeanne M. Huey, Garland, TX, cochair of the Litigation Section’s Ethics & Professionalism Committee. “We are trained to think, we get paid to think, and we should never rely on the excuse that we weren’t thinking.”
The fact that Brown escaped discipline does not mean she emerged unscathed. “Brown regretted her tweets. But she had to go through a hearing because of them and received terrible publicity about them,” Barkett observes. “That should be a lesson to all lawyers to think before pushing the ‘send’ button when you are in an emotionally angry state.”
Huey agrees that lawyers should weigh the risks carefully before making public statements they may later regret. “You’re a lawyer all the time,” Huey cautions. “Are you entitled to your opinion? You absolutely are. But you’re rolling the dice that you may face a disciplinary grievance. Why take that chance?”
