On the Constructive Denial of Rights

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

Unique among nations, the United States of America professes to and actually does protect freedom of speech. Enshrined in the First Amendment, but not granted by it, is the freedom for all to speak their minds and to be free from having their lives destroyed for doing so. This freedom has consistently been interpreted very broadly by the Supreme Court.

Unlike many of the European nations from which we are descended, there are no topics banned from public discussion in the United States. No man may be haled into court or thrown into prison for speaking the truth, no matter how unpopular. Here, in this country, our home, there are no laws that delimit the bounds of what may or what may not be questioned. Ours is a freedom such as has never before existed in the affairs of men, but it is a freedom under assault.

Elites in Silicon Valley employ algorithms designed to silence dissenting views and to bury or ban unpopular speech and engage the services of radical, anti-American entities, often with foreign ties or foreign agents, to censor the political speech of American citizens. Elites in the Media push false narratives intended to distract and to deceive. Elites in Academia enact so-called "speech codes" and deny our younger generations not only their rights to question dogma and to speak their minds but also their chance to receive education instead of indoctrination.

Our rights are eroded, our institutions under siege, and our very civilization under threat. Today, those who dare to voice their opinions are deplatformed, their social media shuttered, their websites shut down, and their payment-processing accounts terminated, and depersoned, with those who dare even to speak with these personae non gratae often attacked and sometimes dismissed from their employment. Our Constitutional protection of freedom of speech is meaningless if all who exercise it must pay for it with their lives.

[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.
— Justice Oliver Wendell Holmes, dissenting, US v. Schwimmer

Upon passing the Bar, but before being admitted to practice law, I, and every other California attorney, took an oath. The Attorney's Oath in California contains a solemn pledge to "support the Constitution of the United States and the Constitution of the State of California". This oath is not optional; no attorney may be admitted to practice law in California without swearing the Attorney's Oath.

Protection of the public is the highest priority of the State Bar of California.

The foregoing sentence appears, in all CAPS, on the Bar card of every California attorney. I carry the card in my wallet every day. That single line of text serves as a reminder of my oath and an admonition that my Bar membership is as much duty as it is privilege, if not more so. I do not give my word, swear oaths, or make promises lightly. As an attorney, I am beholden to my oath to support the Constitutions of the United States and the State of California. This duty runs particularly to my clients, but also generally to all citizens. This duty does not have an exception for persons or for speech with which I may disagree or even for persons I may loathe or speech I may find abhorrent.

In keeping with my oath, I have undertaken the representation of a number of individuals who are self-proclaimed members of the Alt-Right. As part of that representation, my firm accepts donations from third parties to help cover legal fees. This is entirely permissible under the regulations and the rules of the State Bar of California. In response to my representation of these individuals, Square and Stripe (two of my firm's payment processors) have terminated my firm's accounts. I would not be surprised if additional account-termination notices arrive in my inbox in the near future. Neither Square nor Stripe would clarify why my account was terminated (Square went so far as to give no reason).

This has long been the experience of many political dissidents, and too few have spoken out in opposition. It is categorically unacceptable that the exercise of Constitutional rights should end in the denial of one's livelihood. Rights that cannot be exercised due to fear of reprisal are meaningless and effectively do not exist. Whereas the termination of the accounts of political dissidents is unacceptable, the termination of a law firm's account simply because such firm represents political dissidents is an extreme and dangerous escalation.

The right to have one's day in court before a jury of one's peers is a sacrosanct part of the American system and American tradition. For many, this right is ensured by the willingness of third parties to pay court, attorney, and other costs and fees. Where third parties are effectively precluded from funding suits or paying legal bills, the result is a constructive denial of the right to counsel and, almost certainly, a similar denial of the day in court. This constructive denial is precisely what many payment processors have accomplished with their account closures. In at least some cases, it seems that constructive denial was the intent of the payment processors.

For many years now, our rights have been eroded and our institutions undermined by elites who do not consider themselves members of our society or count themselves as amongst our fellows. Some have been content to allow this creeping decay to progress as they did not agree with the views of with those who were targeted. This is unacceptable. The first person silenced and the first man denied his livelihood diminishes all our rights. We must push back against this creeping corruption and decay.

I am hereby calling on all payment processors that have terminated accounts due to ideological, political, or similar reasons, whether openly or under pretext, to immediately reinstate those accounts. Further, I am calling on Congress to address this issue with appropriate regulation. Private entities should not be acting as gatekeepers, deciding who does and who does not get to speak. Our rights are too precious and their price, in blood and treasure, was too high to allow faceless corporations and rootless elites to undermine their foundations, dictate their bounds, and control their exercise.

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.
— President Ronald Reagan