Like you perhaps, I have been thinking about King & Spalding's effort to withdraw from its retainer with the House, but now I'm looking at the episode from 10,000 up. (It's still only an "effort" until the court lets the firm out.)
The other day I watched "Dirty Pictures, the Showtime movie based on the obscenity prosecution two decades ago of Dennis Barrie, head of the Cincinnati Contemporary Arts Center. Barrie's alleged crime was to sponsor an exhibition of Robert Mapplethorpe's photographs.
The exhibition had been curated at the Whitney in New York. The Corcoran in D.C. was slated to show it next, but backed out in the face of congressional hostility. Barrie went ahead with his planned exhibition. He and his family were subject to community hostility, but worse, he was charged with obscenity. He faced a year in jail.
The film is very good, a mocumentary, with commentary from prominent individuals interspersed for verisimilitude, among them William Buckley, Susan Sarandon, Nadine Strossen, and Salman Rushdie.
Here was a museum director standing up for a principle at great personal cost to himself and loved ones. Recall that Cincinnati is a particularly inhospitable place for provocative art. Think Sheriff Simon Leis, who is presented in the film as a primary instigator of the prosecution.
Then I thought of reporters, like Judith Miller formerly of the Times, and Matthew Cooper, formerly of Time, who went (Miller) or almost went (Cooper) to jail rather than reveal their sources. Again, at great personal cost, these and other journalists were and are willing to suffer for a principle.
A principle was also at stake in King & Spalding's decision. The principle has nothing to do with ensuring that the client in this instance, the House, received good counsel. Inevitably, it would and will. It is wrong to say that because the client is not harmed, there is no problem here.
The principle is the refusal of American lawyers to abandon their clients in the face of public criticism -- or perceived criticism -- or out of concern for their own business interests. This principle is indivisible. That's what needs to be understood. It is not measured on some cost/benefit scale in each individual case. The principle of indivisibility is critical to the rule of law.
It is foolish to see the firm's departure as a victory for gay rights groups, whose members are more in need of the indivisibility of the principle than are the powerful. Those groups achieved nothing and lost something of value.
DOMA is an abomination. But it will be litigated, perhaps to the Supreme Court, where Justice Kennedy will be the likely swing vote to uphold it or strike it down. I hope it is buried with an opinion as resonant with the language of freedom and respect as is the Kennedy opinion in Lawrence v. Texas. But I hope this happens only after a very good lawyer gives it as forceful a defense as possible.
Acceptance of the rule of law depends on the perception that rulings are not skewed by great inequality in representation. Of course, too often there is significant inequality, an intolerable situation. Here, however, where we are talking about a momentous social and legal issue, acceptance of, or at least acquiescence in, the ruling will depend on the perception of a fair fight.
Still at 10,000 feet, I've been reading lately how technology has increased and will continue to increase the power of government over our lives and the potential for abuse and privacy invasion. In the decades ahead, the most important impediment to government abuse and freedom will be the rule of law. We see daily what happens in nations lacking a strong rule of law tradition.
We cannot have the rule of law without lawyers who refuse to be bullied by popular opinion or chased away by concern for business. That is so obvious but I suppose must be endlessly repeated. This is not a situational principle. The most beautiful libertarian theory is worth nothing without a bar prepared to stand and fight for it.
Perhaps we lawyers need some lessons in fortitude from the principled workers in the arts and the media.
Recent Comments