Zealous advocacy is not bound by your discomfort

Annex - Monroe, Marilyn (Seven Year Itch, The)_07

In what has become a hallmark of the site, Above the Law yesterday “posted” about a fascinating Massachusetts case and managed to distill it down for their LCD readership: man argues that upskirt photography is protected by the First Amendment.

That led a LawProf Jessica Smith to redistribute the same article with a comment appended:

Mark Bennett, fresh off his 1st Amendment win, does a brilliant job of explaining why not only is this argument the correct argument and that, if the Massachusetts Supreme Judicial Court wishes to follow the First Amendment, it will be constrained to find the statute unconstitutional, but also that any lawyer who failed to make this argument for a client charged with that statute might well have been ineffective.

Since he’s done the legal mumbo-jumbo, I won’t repeat it. What struck me, though, was the attitude taken that this argument: that a statute is facially or as-applied unconstitutional is outside the bounds of “zealous advocacy”.

Both the post at ATL and Prof. Smith’s appended comment were of a similar vein: have you no shame?

The motivator for that approach, perhaps, is their individual distastes for upskirt photography and their discomfort at the very nature of its existence.

It is one thing for lawyers to hold personal beliefs about laws and acts and what should and shouldn’t be legal1 and another to chastise and impugn another lawyer for making an argument that any halfway competent lawyer should have made.

For if the measure of what is zealous advocacy is one’s personal discomfort for that position, then what would ATL and Prof. Smith have to say about, for instance, Bernard S. Cohen and Philip J. Hirschkop, who argued Loving v. Virginia in a time where interracial marriage wasn’t exactly de rigueur. Or Matthew J. Perry, Constance Baker Motley and Jack Greenberg, who argued for Bouie, et. al., two black college students who were refused service at a restaurant and then ordered to leave for “trespassing”, charged and convicted. Or Doug Nash, of New Haven, CT, who successfully convinced the Connecticut Supreme Court that Judith Scruggs was not guilty of the indecipherably vague “Risk of Injury” statute when her son hanged himself.

It is one thing, for instance, to argue that all non-consensual sexual encounters should be legalized2 and quite another to argue that a person cannot be convicted of sexual assault if a reasonable person would have believed that the complainant actually consented.

It is precisely this attitude3 – that something that affronts us personally must be a violation of the law – that has led to the current state of the system we are in, where the predisposition is toward guilt, where there is no intellectual honesty and where the public are but sharpening their pitchforks at every turn.

The law is motivated and controlled more by emotion today than at any time in the past. For a law professor who purportedly teaches judges and other public employees about the law to question the ethics and zealous advocacy of a lawyer who is seeking to protect our individual rights guaranteed under the Constitution is more discomforting to me than Marilyn Monroe standing above the vents of the subway tracks.

  1. For example: murder. Shouldn’t be legal.
  2. They should not.
  3. The right to “me speech”, not “free speech”.

5 thoughts on “Zealous advocacy is not bound by your discomfort

  1. Jo

    Good work as usual, Gideon. I just don’t understand how people miss the essential point that if certain conduct is going to be against the law, the statutes ought to be competently, effectively, and narrowly written. If the behavior is reprehensible, the dialectic between the courts and the legislature will probably eventually produce the right statute forbidding it. We all lose when statutes are vague or overbroad, even if they’re meant to prohibit horrible things. Does no one remember how, in the bad old pre-digital photography days, parents were routinely arrested, tormented, stripped of parental rights, etc. for taking pictures of their kids naked in the bath?

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  2. nidefatt

    Yeah, Bennett’s win is pretty helpful all around. I’ve been annoyed for years that sex offenders in my state have a requirement of probation that they not view any porn or sexually explicit material. Um. Any? But the response I get from everyone is “what about the headlines? Attorney to Seek Sex Offender’s Right to View Porn” is going to cause a lot of trouble.” Ugh.

    “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it…”

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