It is axiomatic that the freedom of speech provisions of the 1st Amendment of the US Constitution are specifically intended to protect unpopular and/or offensive speech. After all, speech that is neither unpopular nor offensive is, obviously, not in need of any particular protections. It is equally indisputable that of all the various forms of speech possible, it is political and religious speech that lies at the heart of 1st Amendment protections.
In the context of the Conservative polito-sphere one of the greatest founts of offensive conservative political and religious speech is South Carolina lawyer (and former head of the SC Republican Party) Todd Kincannon, particularly through the vehicle of his Twitter account, @Todd__Kincannon (note that there are two underscores).
Despite Todd’s in-your-face, abrasive political and religious speech—or, as seems more likely, precisely because of it—the @Todd__Kincannon Twitter account has acquired in excess of 50,000 followers.
To put this figure in some context, this very highly successful and well-respected legal blog on which I am writing this post has just over 14,000 followers of its @LegInsurrection Twitter account. My own @LawSelfDefense Twitter account has only about 4,000 followers.
Todd is now reporting that the South Carolina governmental authorities responsible for governing the professional conduct and ethics of attorneys have decided that Todd’s conservative political and religious advocacy on Twitter, and elsewhere, is too offensive to be permitted, and needs to be gagged.
Specifically, Todd has written that the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have informed him that his political and religious commentary is “unethical” to a degree sufficient to warrant legal sanction to the point of disbarment. (The South Carolina Judicial Department definitions of lawyer misconduct can be found here: Rule 8.4: Misconduct.)
More specifically, Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs.
This past June they also informed Todd that following a two-year investigation based on a small number of complaints—none alleging anything other than offensive political and religious speech—they were electing to continue rather than cease the investigation because of comments Todd had made on his @Todd__Kincannon Twitter account regarding a left-wing political activist. As a result, Todd felt compelled to cease his Twitter communications effective June 22, and he has been silent in that forum since then.
In short, these South Carolina government officials are purportedly seeking to strip Todd of his professional license to practice law based solely upon his Constitutionally protected exercise of his right to freedom of political and religious speech.
Todd revealed this current state of affairs in an email released to persons who had pre-ordered copies of his book, in explanation for why they would not be receiving their ordered books in as timely a manner as they had expected.
Ladies and Gentlemen:If you are receiving this email, it means you ordered a copy of my book. Yet no one has received any copies yet, and I owe you an explanation why.I am presently legally barred from fulfilling the order. The South Carolina lawyer disciplinary authorities—government officials—have determined that my political and religious commentary is “unethical.” I am legally barred from sending you a copy of my book at this time. (Well, I could send you a copy, but I could be disbarred for it.)This is the culmination of a two year secret investigation of me by the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel, two entities that have taken the position that the First Amendment simply does not apply to lawyers. Unsurprisingly, no Democrat lawyers have been targeted so far as I know, and the people in charge of the South Carolina Office of Disciplinary Counsel have solid Democrat voting histories.I encourage you to do discuss this matter in public and on Twitter and Facebook, and you are free to contact the people involved to complain. Here are some excellent talking points: (1) This is just like the IRS Tea Party targeting scandal, because I am being targeted for my political commentary but absolutely no Democrat lawyers are being targeted. (2) Anyone with half a brain understands that the genuinely offensive things I say are merely to provoke the Left and are my distinctive brand of political commentary. (3) If my political activism wasn’t effective, no one would be trying to shut me up. (4) Unlike the Mozilla controversy and other examples of private boycotts, the South Carolina lawyer disciplinary authorities are government agents who are punishing private citizens for political and religious advocacy that is not to their liking. (5) This is book burning, plain and simple. (6) If I lose my right to speak freely because I am a state licensed professional, anyone in a state licensed profession is subject to having their free speech rights taken away from them. (7) This case is one of the absolute best arguments against state licensing for professions. Once government gets its dictatorial foot in the door, everyone in the room becomes a slave to whatever group of petty tyrants happens to run that wing of government at any given point in time.The reason for my silence about this matter until now is that I truly thought they would come to their senses about all of this. In fact, they indicated to me more than once that they would not punish me for political or religious commentary that was not to their liking, after initially demanding that I stop saying anything offensive on Twitter. (That was why I briefly stopped using profanity on Twitter in late 2012, in case you were wondering what that was all about.)However, in early June, just as I was preparing to send out my book, I received an unexpected notice from the South Carolina Office of Disciplinary Counsel that the investigation was going to continue because of comments I made on Twitter regarding a left wing political activist named Col. Morris Davis, a frequent guest on MSNBC. (I have no indication that Col. Davis has anything to do with this—it appears a supporter of his filed a bar complaint on me, the seventh or eighth complaint filed on me in recent times.)As a result of all this, I have prepared and filed a lawsuit in federal court. Please read the attached complaint that was filed earlier this evening. I will fight this matter all the way to the United States Supreme Court if I have to. Surrender is not in my DNA. However, I have no choice but to stop tweeting and hold off sending out copies of my book or engaging in any other advocacy until the federal court gives me clearance to do so without fear of professional repercussions.Given that I am now legally banned from sending you my book, if you want a refund for what you have paid for my book (or anything else), please let me know and you will receive one immediately. A few people have offered to donate legal fees. That is not necessary. All I ask is for you to pray for me and my family and to raise absolute hell about this. I’m going to win this fight no matter what, but the louder you are, the quicker and easier it will be.I suspect the federal court will clear me to send you a copy of my book within a month or two. I suggest you not cancel your order, because I have an idea that these books are going to be collectors items by the time this litigation is concluded with finality.I will provide more details as they become available. I plan to coordinate a full-scale political and legal attack on all involved (within the bounds of law and ethics, of course) if this matter isn’t resolved to my satisfaction in the very near future. This is just my opening salvo.Don’t just expect fireworks, folks. Create them. (Again, within the bounds of law and ethics.)Todd Kincannon
Todd has also filed suit against the South Carolina Commission on Lawyer Conduct, the South Carolina Office of Disciplinary Counsel, and specifically involved governmental officials, alleging unlawful suppression of his freedom of political and religious speech under the 1st Amendment of the US Constitution and Article I, Section 2 of the South Carolina Constitution.
To date we have heard substantively only from the Kincannon side of this dispute. Certainly, it seems outrageous on its face that governmental authorities would seek to suppress the free expression of political and religious speech of any individual for any reason, and surely not merely because a handful of offended individuals managed to send them an outrageously outraged email of outrage concerning Todd’s admittedly offensive speech.
Do the SC authorities have some more substantive basis on which to threaten Todd’s ability to practice his profession? If so, I encourage them to make such information available to me here, where it will get as full and open a discussion as any materials we may receive from Todd.
A lifetime of experience dealing with politically-biased governmental officials targeting right wing opponents on the flimsiest of pretexts, however, discourages me from holding my breath until any such more substantive grounds for sanction are made available. Louis Lerner, anybody? April Sands?
We’ll be following this matter closely, for many reasons. Most superficially, many of us blogging here at Legal Insurrection are licensed attorneys ourselves, and we regularly engage in political and religious speech that a great many people find offensive (if the regularly received death threats to myself and my family are any indication). If Todd can be shut up for his political and religious speech, which of us will be next to have our license to practice law threatened by an offended government officials?
More broadly, if governmental authorities can strip a license to practice from lawyers simply because they wish to suppress their political and religious speech, what will be the next tier of licensed professionals to be so suppressed? Doctors? Electricians? Barbers? Anyone possessing a driver’s license?
And if a professional license can be stripped for political and religious speech, what other governmentally provided “good” can be taken? Access to government provided education for children—can your kids be kicked out of school for your offensive political or religious speech? Access to government controlled healthcare for your family—does your family secretly get placed on the “long” waiting list for medical care, VA-style, based on your offensive political and religious speech?
One last parting thought: I wonder what hard-drive back-up methods the South Carolina Commission on Lawyer Conduct and Office of Disciplinary Counsel have in place? Would I be the only person to be shocked—SHOCKED!—if they suddenly suffered a wave of “unexpected” and unrecoverable hard drive failures?
OK, this is the last, last parting thought, directed personally at Todd: You filed your suit in Federal court pro se. Don’t be foolish. You can afford quality legal counsel. Get thee some. Or not, you %$&%$&%! 🙂
P.S. Many thanks to Capitalist Preservation, Politichicks, and Instapundit for their prior and ongoing outstanding coverage of Todd’s travails.
–-Andrew, @LawSelfDefense
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.
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