Bar associations can be powerful voices for the rule of law and constitutional order in a political landscape too often dominated by grandstanding tyrants. Or they can spinelessly acquiesce to the mob. The North Carolina Bar Association has opted for the latter path.
The NC Bar [Update: to clarify, the North Carolina Bar is distinct from the North Carolina State Bar… the latter is the government organization] pulled the plug on a long-planned drag trivia night hosted by the Sexual Orientation and Gender Identity committee amid increased anti-gay demagoguery from the state legislature. In fairness, given the climate in North Carolina there could be valid reasons to call off the event. Trust that NCBA president Clayton Morgan offered none of those when he addressed the decision at a recent meeting:
Another group member then sounded off. “The message that I’m hearing from you, Clayton, is way worse than I had ever imagined. It’s patronizing, it’s embarrassing, it’s disappointing. Your words ring hollow.”
The member said he expected Morgan to tell the group he had canceled the event out of concern for their safety. But “it doesn’t seem that anybody cares about our safety,” the person continued. “It only seems to be that people care about the backlash.”
For the record, canceling an event over hypothetical safety concerns is a real “heckler’s veto” — the concept that so-called legal experts continually misconstrue as if it means “being heckled.” Not that the NC Bar is a government agency, but with the widespread use and abuse of the term “heckler’s veto,” it’s worth flagging the underlying conditions if one actually crops up in the real world outside the fever dreams of the WSJ editorial board.
Still, just because the government can’t use that as an excuse to stop speech doesn’t mean safety isn’t a valid consideration. If Morgan leaned into concern over the safety of attendees citing credible threats, the response might’ve been more understandable. And maybe he did care about safety — a bit — but apparently not enough to headline the presentation:
He repeatedly emphasized that the NCBA tries to avoid entering heated legislative or political debates that don’t advance the “overall best interest of the organization.” By permitting the trivia night, the group’s other legislative priorities might be negatively impacted, he said.
That’s what he led with! Look, we could stand up for Equal Protection and basic human decency, but that might put us crosswise in our efforts to avoid attorney fee caps in workers’ comp cases. GOT TO PICK OUR BATTLES, HOPE YOU ALL UNDERSTAND!
The trouble with this reasoning is that it renders every issue contingent. Today it’s answering the LGBTQ+ folks playing trivia. What happens when the legislature takes a swipe at women (or, in this case, another swipe at women) or tries to harass immigrants or marginalize Black children? Which constitutional principles meet the state Bar’s precious threshold?
But it’s not as though the NC Bar is offering nothing.
[Morgan] suggested that the committee “present both sides” of the debate about drag culture instead.
That way, NCBA president Clayton Morgan said, the committee wouldn’t be “perceived as trying to advance just your agenda on the world,” according to a recording of his remarks shared with The Daily Beast on the condition of anonymity.
Cool. I’m sure there are very fine people on both sides of the *checks notes* discrimination debate.
In the words of one of the attendees at the meeting: “cut the bullshit.”
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.