Our Courts May Be the Last Bastion of Truth and Civility – and Lawyers Have a Duty To Keep It That Way!

By Scott Karson

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Ever since the 2020 presidential election (and I admit to some uncertainty as to when that election actually concluded), I have held out hope that the duly elected members of the executive and legislative branches of our government would finally come together and work in a cooperative, bipartisan manner for the good of our country, especially in our fight against our common enemy: COVID-19.

But, instead of unifying over what should be a joint effort to eradicate a deadly foe, it seems that our elected leaders cannot even agree on what is fact and what is false.  Even more alarming, some lawmakers are fearful for their own safety, not only from the extremists such as those who stormed the Capitol on Jan. 6, 2021, but from their fellow elected colleagues as well.

How will they ever reach compromises on important policy issues if they cannot even have a civil conversation on the House or Senate floor? Instead of debating issues, time is spent defending attacks on reality. Falsehoods under the guise of truth impede rational discourse, which is a necessary component of effective governance in a democratic society.

We must look to the example set by so many (but – regrettably – not all) of the members of the legal profession during these tumultuous past few months. While it’s not perfect, the court system in which we practice remained the last bastion of truth and civility, serving as a “check and balance” on the fountain of misinformation and hostility polluting our political environment. This is something our profession can be proud of.

It was former President Donald Trump’s counselor, Kellyanne Conway, who, shortly after Trump’s inauguration, introduced the term “alternative facts” to describe what are nothing more than rank falsehoods.  Apparently, it was Ms. Conway’s intent to somehow justify and excuse the reference to lies in our political discourse (in that case, the so-called alternative fact was extraordinarily petty and insignificant; i.e., the comparative size of the respective crowds attending the Obama and Trump inaugurations).

Perhaps no lie has had greater consequences on our nation than former President Trump’s unfounded claim that victory had been wrongfully stolen from him in the 2020 presidential election by means of widespread election fraud.  It was this claim that on Jan. 6 instigated a violent mob, stoked by a refusal to accept the results of a certified election, to attempt to impede the lawful processes of government by storming and desecrating our hallowed halls of Congress, causing the tragic deaths of five human beings, including a member of the Capitol police, and imperiling the health and safety of our vice president, the speaker of the House of Representatives and so many others. The toll is even higher when you consider the fact that two Capitol police officers took their own lives in the week after fighting the mob.

Trump’s lawyers, including Rudolph Giuliani, continually perpetuated the big lie of election fraud publicly, even on the day of the insurrection at the Capitol, when Mr. Giuliani infamously exclaimed to a crowd of Trump supporters, “Let’s have trial by combat.” But in the weeks leading up to January 6 inside courtrooms across the land, Giuliani sang a much different tune – offering no evidence of election fraud, stating instead, “This is not a fraud case.”

Like so often is the case today, our coequal judicial branch of government was able to discern the truth. In 61 cases nationwide, judges – including some Trump appointees – examined the evidentiary record presented to them and failed to discern any evidence of election fraud whatsoever.  These cases were dismissed one after the other.

Yet, sadly, millions of people believe the big lie, one of many lies in our era of alternative facts, and the truth continually remains under attack, whether it’s about our election, the pandemic that has cost more than 500,000 American lives or one of the seemingly countless issues that have arisen in the public arena.

People’s willingness to buy into alternative facts, whether full-blown conspiracy theories or some other form of misinformation is – to me – unfathomable, and truly frightening. It is simply astonishing that a duly elected member of Congress from Georgia, Marjorie Taylor Greene, reportedly supports an anti-Semitic conspiracy theory pertaining to California wildfires, supports the shooting of prominent Democrats and even goes so far as to believe that school shootings in Sandy Hook, Connecticut and Parkland, Florida were staged and never really happened.  So, it comes as no surprise that this same lawmaker voted against certifying the 2020 Electoral College voting results based on the big lie.  Sadly, however, 146 other members of the House of Representatives did so as well.

Over these past few months, we learned just how fragile and precarious our rule of law – respected and admired worldwide – really is. Therefore, when it comes to finding truth – and doing so with civility – in our divided nation, lawyers must continue to lead by example. Lawyers are trained to negotiate, compromise and seek out the truth, and it is no coincidence that our Association has long promoted the importance of civility in our profession, and in society as a whole.  In 2020, the Association promulgated updated Standards of Civility which, in tandem with our profession’s Rules of Professional Conduct, provide a comprehensive source of rules and standards to which we should all adhere.  Significantly, truthfulness is an essential component of both.

In the aftermath of the violent deadly riot of Jan. 6 – a horrific event that will undoubtedly influence the way our nation governs itself going forward – our profession must continue to hold truth to power.

We are already seeing victims of the big lie turning to the courts to find justice. Lawsuits have been filed seeking billions of dollars in damages by election technology companies like Smartmatic and Dominion.  We are also beginning to see a wave of lawsuits from lawmakers against Trump, his lawyers and extremist organizations pertaining to the events at the Capitol, and it is anticipated that lawsuits brought by law enforcement officers injured during the insurrection will not be far behind.

Our Association’s Committee on Law, Youth and Citizenship will be offering a different antidote to the misinformation plaguing our society: robust public civics education that instills the knowledge and values of our democratic republic to guard against the disrespect and wanton violence such as that which we witnessed on Jan. 6.

Students, as well as educators, and even lawyers and judges, must all become educated to apply critical thinking to what they hear and see, especially on social media. They must be taught media literacy, to learn to discern fact from fiction. They must learn to debate with civility, not violence. Regrettably, our plan to conduct a convocation on civics education, in conjunction with Chief Judge Janet DiFiore, Associate Judge Michael Garcia and the Unified Court System, was derailed by the pandemic, but it remains our hope that the convocation can be rescheduled when circumstances permit.

We pledge to redouble our efforts to promote these education ideals in our state. In the coming weeks, you will hear about webinars addressing these topics co-sponsored by our Committee on Law, Youth and Citizenship, Committee on Media Law, and the Task Force on Free Expression in the Digital Age. We further urge our lawmakers to provide the resources necessary to help our young people become citizens who actively participate in government and who see the value in discerning the truth and respecting the rule of law.

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