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:
— Jessica Smith (@ProfJessieSmith) November 7, 2013
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.