Everyone's a Lawyer on Twitter

My profession is intellectually dishonest, but it's open about it and everyone understands it. When people apply lawyer rules to their own discourse, it's bad.

The whole point of being a lawyer- a paid or appointed advocate for someone- is that you are required to zealously defend and advance that person or entity’s interests. There are limits on this, of course- we aren’t allowed to outright lie to courts, or make serious misrepresentations; and we aren’t supposed to make public statements to influence jury pools (although that one is often observed in the breach). But in general, we are supposed to be out there saying whatever the best thing to say for our clients’ interests is.

And that’s what we call, in other contexts, “intellectual dishonesty”, i.e., saying things you don’t really believe. Here’s the thing, though: it’s pretty harmless in the legal profession. Why? Because everyone understands it. Joe Jones is accused of a serious crime, and his lawyer Steve Smith stands on the courthouse steps, thundering “my client is INNOCENT!”. Everyone understands that this doesn’t mean Jones is innocent, and it doesn’t even mean that Smith believes he is innocent, or that Smith is a pathological liar for saying so. Smith’s job is to represent Jones’ interests, and sometimes the job of a criminal defense lawyer means proclaiming the innocence of people the lawyer is fairly sure to be guilty. And the public gets this and properly discounts the statements of lawyers.

As does the court system. And this is really important. There’s a popular conception that lawyers lie in court; some do, unfortunately, but it’s terrible advocacy and you can get caught and harm your client immensely. Lawyers do, of course, spin in court, sometimes to ridiculous extents. But even spinning can be a highly ineffective tactic if overused. The best spin is subtle, and the best legal arguments are actually logical, going step by step through the case and showing why a decision in favor of your client is correct.

Indeed- and this is deeply misunderstood about lawyers- the very best arguments do what has now been labeled on the Internet “steelmanning”. I.e., they actually acknowledge the strongest points on the other side and then refute them. “Now, the prosecution is going to argue that because my client’s DNA was found near the scene, the case is over. He’s guilty beyond a reasonable doubt. Some of you are probably even thinking that. But let me tell you why that is incorrect.” Lawyers do this all the time. If you listen to Supreme Court arguments (which is now easier to do because of online resources), you will hear the most skilled appellate advocates, all the time, acknowledge whatever the strongest point is on the other side and then tell the justices why it doesn’t matter or doesn’t play they way they might think it does.

Here’s the point- lawyers are required to sometimes say ridiculous things in public about their clients, things they don’t really believe, things that are intellectually dishonest. But the trade-off is, (1) their interests are disclosed and everyone understands they are just saying what they have to say to protect their client, and (2) in a courtroom, a lawyer’s expression is much more constrained, both by ethics rules and the pragmatic need to win the case, and lawyers generally have to stick to the truth and argue logically.

And so we get to the grand thesis of this piece, the buried lede, which is: (1) only works if you have (2), and online discourse has settled around a norm of (1) and not (2). In other words, you have people saying things all the time that they don’t mean. And I don’t only mean random Twitter users, although that’s a problem too (such as when they claim to be personally injured by some gaffe by a prominent person and try to pile on and get the person fired). I mean prominent folks, what used to be called “public intellectuals”- academics, doctors, pundits, writers, and journalists. They are constantly saying things they don’t actually believe or which they know to be contradicted by the data. They are operating under what they think are “lawyer rules”, where you say whatever you think might help the cause.

So on the right, you have people constantly making claims about the coronavirus that are utter BS, from Richard Epstein’s “only 5,000 people will die from this” to current vaccine skepticism. On the left, you have people claiming that Joe Biden will be a one term President if the reconciliation bill does not pass, when we’ve seen presidents fail to get legislation through and get reelected. Very prominent people traffic in disinformation, whether it’s false claims about the cause of George Floyd’s death or false claims that the Wi Spa incident was a hoax.

The big problem is that these folks are bound by only half of the lawyer’s code. They are being intellectually dishonest, but (1) they are labeled as academics, doctors, journalists, and commentators, and thus their comments are imbued with the professional credibility of their associations, and (2) there’s no court where they have to go in and be honest and argue logically.

And this is highly destructive to public discourse. There’s been a lot of commentary lately about how people receive fake news on social media. But some of the same people complaining about that phenomenon think nothing of retweeting some phony claim about a political issue or current event that they think helps “their side”. And people believe it because rather than having the name of a lawyer, with a client, attached to it, it comes from someone with professional credibility.

We can’t be a nation of lawyers. If we are ever going to come together as a country again and be less polarized, we have to get out of the mindset that we are only going to say whatever it is helps our cause. We have to call them as we see them. Without judges and a state bar to rein them in, a nation of lawyers run amok will do nothing but pollute the discourse with lies.