We are pleased to present this commentary by the distinguished retired jurist, John H. Wilson.
“I disapprove of what you say, but I will defend to the death your right to say it.”– Attributed to Voltaire
Recently, a video has “gone viral” and caused a sensation in New York City. A lawyer, identified as Aaron Schlossberg, made some very unfortunate statements about his fellow patrons at a glorified deli called Fresh Kitchen in midtown Manhattan.
On the video, Mr. Schlossberg can be heard complaining about a restaurant worker speaking with some female customers in Spanish. Mr. Schlossberg than complained to the manager that in America, he expected people to speak English, and went on to say that he paid for the welfare of the women, and for their ability to live in America. He concluded as he stormed out of the bodega by threatening to call ICE and have the people involved deported.
While Mr. Schlossberg’s comments were deplorable (every pun intended), the backlash has been instant, and decidedly over the top. While in the restaurant, one of the objects of his rant called him an “ignorant a–hole,” and expressed a desire that he be hit by a car. After being identified by the media, Mr. Schlossberg has been chased by that same media from his apartment, and even confronted by reporters while at a court appearance in Queens.
As a result of the uproar over his comments, Mr. Schlossberg has been removed from his business office by his landlord. Protestors have appeared outside his residence. His law firm was subjected to negative reviews on Yelp, reviews that were taken down by the website, which stated that ” it removes both positive and negative posts that appear motivated more by news coverage than personal consumer experiences.”
In fact, Mr. Schlossberg has been vilified, threatened, and shamed in every way possible, to the point that Michael Meyers of the New York Daily News wonders if it’s all a bit much at this point.
Most invidious and chilling, New York Congressman Adriano Espalliat and Bronx Borough President Ruben Diaz made a grandstanding complaint to the Attorney Discipline Committee, citing to no Ethical Cannon or Discipline Rule allegedly violated by Mr. Schlossberg.
The letter does state in grandiose fashion, that “there is no place for the scourge of racism and the vulgarity of bigotry in our great nation,” and ironically, given the treatment Mr. Schlossberg has received from those outraged by his statements, that “the egregiousness of bald-faced racism, in all its ugliness, must be rejected and replaced with the kindness, solidarity and sense of togetherness that has made this great American experiment…” (I’m sure you get the idea.)
As a lawyer who practiced criminal defense for many years, let me offer a few words that are not a defense of this man and his comments, but a defense of his right to speak these deeply unpopular and despised words.
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During my practice, I was often asked how I could defend the guilty. My answer was simple – everyone deserves a defense, and the law must treat everyone equally. Under the First Amendment of the United States Constitution, Mr. Schlossberg has the absolute right to his opinion. His statements, while debatably racist (there is no racial designation or classification for “Immigrants,” legal or otherwise, recognized in any court, statute, ordinance, or dictionary I am acquainted with) and while obviously offensive to many, are not a violation of any law, either criminal or civil.
It is also not unethical for a lawyer to hold odious private opinions, nor for that same lawyer to express such opinions. Legal Ethics center upon services performed for clients and obligations met to a Court as an officer of that court. According to the definition given at the US Legal website, ” Legal ethics is the minimum standards of appropriate conduct within the legal profession…It involves duties that the members owe one another, their clients, and the courts. Respect of client confidences, candor toward the tribunal, truthfulness in statements to others, and professional independence are some of the defining features of legal ethics.”
Even the Far-Left website Slate admits freely that “state attorney discipline committees do not, and should not, have general authority to punish lawyers for their nasty (but non-criminal) behavior outside of the law.”
” Notably,” Slate writes, “Espaillat and Diaz’s letter does not cite the specific provision of New York’s Rules of Professional Conduct that they believe (Schlossberg) violated. That’s because there probably isn’t one. Had Schlossberg committed a crime, he could have been disciplined, but it does not appear that his conduct rises to the level of criminal harassment. If he had engaged in racism within his law practice, he could also be sanctioned, but his outburst occurred at a public restaurant.”
It is for this reason that I called the letter written by Congressman Espalliat and Bronx Borough President Diaz “invidious and chilling.” For two educated, respected leaders of the New York Latino Community to stoke the passions of the masses and attempt to have Mr. Schlossberg disciplined for his actions outside of a courtroom is irresponsible. It also turns the very principals to which they cite, that of replacing Mr. Schlossberg’s alleged racism with “kindness” utterly on its head in pure Orwellian fashion.
The mob has exacted its “pound of flesh” from Mr. Schlossberg, and left him without a law office from which to practice, and probably separated him from his clients, who were identified and contacted by the media in an obvious attempt to get him fired by those clients. In another week, he will be forgotten, and another target of mob justice will be selected.
But as friendless and harried as that person will be, they will still have the protection of the law and the First Amendment for their unpopular and minority views. Politicians like Espaillat and Diaz may forget this while they pander to the mob, but cooler heads like the Discipline Committee will not.
And this is exactly what the Founding Fathers meant by the “Rule of Law.”
Photo: Statue of Justice, NYC Court System (Pixabay)