Amicus Curiae Brief — Hine v. Oklahoma ex rel. Oklahoma Bar Ass'n

Supreme Court, Des

FILED

AUG 22 1997

CLERK

No. 97-140

IN THE

Supreme Court of the United States

October Term, 1996

KATHERINE HINE,

Petitioner,

STATE OF OKLAHOMA EX REL.

OKLAHOMA BAR ASSOCIATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OKLAHOMA

BRIEF OF AMICUS CURIAE

ARCH, CHILD ABUSE FORENSIC INSTITUTE, ECLIPSE, HEAR

MY VOICE, JUSTICE FOR CHILDREN, THE LINKUP,=

(IDENTITY OF AMICI CURIAE CONTINUED ON

NEXT PAGE)

Counsel for Amici Curiae

Richard L. Ducote

335 Decatur Street

New Orleans, Louisiana 70130

(504)581-5152

(IDENTITY OF AMICI CURIAE, CONTINUED)

NATIONAL ALLIANCE FOR FAMILY COURT JUSTICE,

NATIONAL COMMITTEE FOR THE RIGHTS OF THE CHILD,

NATIONAL TASK FORCE FOR CHILDREN’S

CONSTITUTIONAL RIGHTS, INC., DR. HAL PIPINSKY, ROSS

COUNTY NETWORK FOR THE PREVENTION OF CHILD

SEXUAL ABUSE, SAVE, SNAP,

IN SUPPORT OF PETITIONER

i

QUESTIONS PRESENTED FOR REVIEW

|. Whether, without this Court’s acceptance of certiorari, the

precedential value of the Oklahoma decision below refusing to

protect petitioner Hine’s speech under the First Amendment, leaves

serious questions of public importance as to the circumstances under

which lawyer speech can ever reliably enjoy constitutional

protection?

2. To what extent should this Court consider the hostile political

climate in which petitioner’s speech was subjected to punishment,

and the probability that Oklahoma’s Rule 8.4(d) was applied to her

speech in a discriminatory manner, in assessing the compelling public

importance of this Court setting clear constitutional standards for

such regulations that continue to stifle public discourse about

controversial or unpopular topics?

il

TABLE OF CONTENTS

CSCI FSO 06 6.0 66 bee 6 0056s ewe nee cas wend i

PARLE CF AED 00 6 cttnve signe innnss hexian bated iil

IDENTITY AND INTERESTS OF AMICI CURIAE ............... |

INTRODUCTION AND SUMMARY OF ARGUMENT..........3

PR AGEG o oo 2 cccscintvcgdeemmh es MEARE eee ek Oe 4

1. This Court Should Accept Certiorari to Rectify the

Oklahoma Decision Below Refusing to Protect Petitioner

Hine’s Speech Under the First Amendment, so as to

Resolve and Clarify Serious Questions of Public Importance

as to the Circumstances under which Lawyer Speech can

Reliably Enjoy Constitutional Protection.............. 4

2. This Court Should Accept Certiorari in Consideration of

the Hostile Political Climate in which Petitioner’s Speech was

Subjected to Punishment, the Probability that Oklahoma’s

Rule 8.4(d) was Applied to her Speech in a Discriminatory

Manner, and the Compelling Public Importance of

this Court’s Setting Clear Constitutional Standards for

Such Regulations that Continue to Stifle Public

Discourse about Controversial or Unpopular Topics. . . 13

CONC L EIEN . . . oe ccciewchenseneeeeeee ea eaenean 20

TABLE OF AUTHORITIES

Page

CASES

Allen v. Maco, No. 93-0322 (Ct. Statewide Grievance

ee ee errr 19

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............ 7

Brown v. United States, 356 U.S. 148 (1958) ................ 4

Central Hudson Gas & Electric Corp. v. Public Service

Comm'n of N.Y., 447 U.S. 557 (1980) ..........-.2-- eee eee 8

DeJonge v. State of Oregon, 299 U.S. 255 (1937) ............. 19

Ex Parte Secombe, 60 U.S. (19 How.) 9 (1857) ..........----- 4

Freyd v. Whitfield, No. L-96-627 (D.C. Md.)............-... 16,18

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)......... 3,17

Harrison v. HBO, Inc., No. 93-052010 (D.C. Tx.), appeal

pend., No. 14-96-01529-CV (Ct. App. Houston)............. 18

Hebert v. Grant, No. 93-041705 (D.C. Tx.)........2.----008- 18

Huckabee v. HBO, Inc., No. 93-00116 (D.C. Tx.), appeal

pend., No. 14-96-01528-CV (Ct. App. Houston)............. 18

In re Gillard, 271 N.W.2d 785 (Minn. 1978)................ 5

cE | 4

AS) 5,19

Ct ee 5

Kahree v. Kahree, 66 Ok.BJ. 3771 (Ok. 1995)...........2... 16,17

Kleindienst v. Mandel, 408 U.S. 753 ..........-020cc ee ceeee 7

Matter of R.L.S., 65 Ok. B. J. 2829 (Ok. App. 1994).......... 16

Morgan v. Foretich, 846 F2d 941 (4 Cir. 1988)............. 17

NAACP V, Button, 371 U.S. 415 (1963). ..........----- 20 ee 19

Newsome v. Newsome, 557 So.2d 511 (1987) .............-.. 18

ee) 5

People v. Klick, 66 I11.2d 269,

ee ee eee 6

Ramona v. Isabella, No. 61898 (Cal. Super. Ct.

Ee Oey (ee ee ee ae 17

Shapero v. Kentucky Bar Assn.., 486 U.S. 466 (1988) ......... 8,9

a) ee ee 6

iv

Sullivan v. Cheshier, 846 F.Supp. 654 (N.D. Ill. 1994) ........ 17

Superior Court Trial Lawyers Asso. v. FTC,

Ee Ce BPA Es NOE ebb k enc ccctnedesecsevacvond 6

lUinderwager v. Salter, 22 F3d 730 (7™ Cir. 1994)............ 18

United States v. Cooper, 872 F2d | (1* Cir. 1989)............ 5

Virginia Pharmacy Board v. Virginia Consumer Council,

| eer rrr rrr rrr eee Srna Ye 78

RULES

NR bs tows cideesbeeceeawetuateus 8,19

ek POPPI PT ETT rere per 1

STATUTORY PROVISIONS

i ie hee ae 12

Ot i Os i kei ec oe ae 12

a Ne ecu racasceskncnaeevhecevesrsteweees 8

PF Meee I os os 5-0 e decd cebu ceed veavecesand 12

Se Dn BUT TO sb cease ee entvedendackebeees a

42 US.C. Sec. 5106a(b)(2)(AM ix)... 0.0 e eee c cece ee eeecees 8

GE Bs WOT iio 0.0 oon yan evn vataes versae¥ens 12

LAW REVIEW ARTICLES & LEGAL TREATISES

Adams, J. “Child Abuse Reporting Laws: Recent

Controversies”, 10 Ok. Fam. L. J. 61 (June, 1995).......... 16

Besharov, D. “The Legal Aspects of Reporting Known and

Suspected Child Abuse and Neglect”, 23 Villanova L. Rev.

ot, SSS Pee errr ers eer er or eee 11,13

Bowman, C. & Mertz, E. “A Dangerous Direction: Legal

Intervention in Sexual Abuse Survivor Therapy”, 109

Fe es Ss s-0's ban we mewede eh eee bbe de ees 18

Call, J. “False Allegations of Sexual Abuse in Custody and

Visitation Disputes”, 9 Ok. Fam. L. J. 76 (Nov. 1994)........ 16

SASSI” SabcsOSNanNNR ANCA Oe rence

v

Gill, C. “Essay on the Status of the American Child, 2000

A.D.: Chattel or Constitutionally Protected Child-Citizen?”

17 Ohio Northern L. Rev. 543 (1991) .................... 11

Paulsen, M. “The Legal Framework for Child Protection”,

Ch Krneen ©. Gee, GIF USN es os ddedcencereicrerds 9

MISCELLANEOUS

ABC Turning Point, “When Children Accuse: Who to

so ccaedats dbo trices .coke. Bis. Rtg MPC OEE CTE OTT 16

ARCH Newsletter, Summer, 1993, p.5...............----- 10

Berliner, L. and Gelles, R. “Is Family Preservation in the

Best Interest of Children?” 8 J. Interpersonal Violence 556

CPOE, FUE «0's Seeing o be cia ceelas edltbe dle csie os 1

Conte, J. “Child Sexual Abuse: Awareness and Backlash”,

pp. 224-233, Vol. 4 The Future of Children, Summer/

Fy SFO on ons ualle che ckeendlscnneh Mbumatie dessins . 14

Ferenczi, S. “Confusion of Tongues Between Adults and

the Child: the Language of Tenderness and Passion”. In

M. Balint (Ed.) Final Contributions to the Problems and

Methods of Psycho-analysis (pp. 156-167) Hogarth Press,

RN PE coin 00k dnd ddd adaen KEE hadodenewes 10

Herman, J. Father-daughter Incest. Harvard University

Press, Cambridge & London, 1981..................-.--.- 10

Kempe, Steele, Silverman, Silver and Droegemueller,

“The Battered-Child Syndrome”, JAMA, July 7, 1962......... 10,11

Lappe, F. and DuBois, P. The Quickening of America,

Jossey-Bass inc., San Francisco, 1994 ....... 2. cc cccccccceee 6

Masson, J. The Assault on Truth: Freud’s Suppression of

the Seduction Theory. Farrar, Strauss, & Giroux, N.Y. 1984..... 10

Myers, J. (Ed.) The Backlash, Sage Publications, Thousand Oaks,

> og PEPE OP eT Te ee ee ne Pe cncwswsse 13

National Victim Center and the Crime Victims Research

and Treatment Center, Rape in America. A Report to the Nation,

aid 35, WOU, sais. sn (sons akg daanciees Vaxendee<s 14

NOW Legal Defense & Education Fund, “Adjudicating

vi

Allegations of Child Sexual Abuse When Custody is in Dispute” .8

Paidika: The Journal of Pedophilia, pp. 2-12, Vol. 3

Wate, FFEE 6c nvinisrWidieaneds shewtengesueecaaenee en 15

Pennington, J. Testimony to Judicial Committee of the U.S. House

\ of Representatives, August 6, 1992.............000005 7,18,19

Rotondo, S. “Who's Protecting Whom?” pp. 6-9, Body

Memories, Berkeley, CA. Spring, 1995 ...............00000- 17

Siegel, B. A Death in White Bear Lake, pp. 202-212,

Bonnnee Dowie, Me WG, Pots cs x occ v0 ks cecesdesdccaces 10

Stanton, M. “U-Turn on Memory Lane”, Columbia Journalism

Review, Dp fA, DIOP oc cccc evince eda cneeeeuass 14,15,18

Summit, R. “The Child Sexual Abuse Accommodation

Syndrome”, 9 Child Abuse & Neglect, pp. 177-193 (1983) .... 14

Summit, R. “Hidden Victims, Hidden Pain: Society's

Avoidance of Child Sexual Abuse”. In G.D. Wyatt &

GJ. Powell (Eds), Lasting Effects of Child Sexual Abuse

(pp. 39-60). Sage Publications, Newbury Park, CA. 1988...... 10

Summit, R. “Too Terrible to Hear”, March 13, 1987

revision of paper presented to U.S. Attorney General’s

Commission on Pornography, Miami, Fl., November 20, 1985

available through Harbor-UCLA Med. Ctr., D-6, 1000 W.

Casson, Gastmen: GIR ks eh cwdies ies ecercsbeceh caees 17

Underwager, R. 1995 Curriculum Vita............-.+--005- 16

Underwager, R. & Wakefield, H. “Child Abuse Sex Crimes

Seminar”, Oklahoma City, Ok., October 26-28, 1995.......... 16

U.S. Advisory Board, “Critical First Steps in Response to a National

Consrgenty’, PSIG ies pisces secksetnwes tat ebectscbesencde 12

U.S. Dept./Justice Office of Justice Programs, Joint

Investigations of Child Abuse: Report of a Symposium,

July, 1999. . sos uakcei. CA ee 14

U.S. Judiciary Committee, “Violence Against Women: The

Response to Rape: Detours on the Road to Equal Justice”... ... 14

U.S. Senate Committee on Labor and Human Resources,

Report No. 104-117 to accompany S. 919, 104" Congress, |

Calendar Wo. 06D, Sale OG, CORB cas 5s 5 iS S FRc ets as 12,14 |

Vacchs, A. Sex Crimes, Owl Books, New York,1994............ 14 |

IDENTITY AND INTERESTS OF AMICI CURIAE

|. Alliance for the Rights of Children-(“ARCH”), [formerly, Friends

of Elizabeth Morgan] is a Virginia based 501(c)(3) organization

committed to protecting children from abuse. Its president is

Glennie Rohelier. ARCH’s interest in the petition is in protecting the

rights of child advocates to speak out on behalf of children at risk.

2. The Child Abuse Forensic Institute (“CAFI”), based in California,

provides advocacy, referral, therapy, investigative, and training

services for protective parents and legal professionals seeking expert

direction in child abuse cases. CAFI’s executive director is attorney

Seth Goldstein. CAFI’s interest in the litigation before this Court is its

fear that the precedential effect of such decisions will cause

professional child advocates to begin self-censorship.

3. ECLIPSE (Emancipating Children from Legal Injustice,

Pornography & Sexual Exploitation), based in South Carolina, is a

national nonprofit corporation providing multi-disciplinary

professional assistance in child abuse cases. Its president is Robert L.

Millard. ECLIPSE’s interest in this case is due to children’s sole voice

within the system being the one provided by advocates.

4. Hear My Voice (“HMV”) is a national children’s rights

organization based in Michigan that seeks to promote the right of all

children to have safe, permanent families. Its director is Marci R.

Feinberg. Many attorneys and psychologists comprise HMV’s Board

of Directors or National Advisory Council. HMV’s interest in this

petition arises from its concern that attorneys and psychologists are

being deterred from child advocacy activity.

5. Justice for Children (“JFC”) is a national child advocacy

organization with eleven chapters in nine states. JFC’s president is

attorney Randall Burton of Houston, Texas. JFC’s concern in this case

is that the speech of all child advocates, especially attorneys, will be

chilled if the Oklahoma decision below is allowed to stand.

6. The LINKUP, Survivors of Clergy Sexual Abuse, Inc., based in

Illinois, with over 5,000 members, assists victims and promotes

institutional prevention efforts. Its president is Thomas H.

Economus. LINKUP has an interest in seeing that victims have a

voice in the legal process.

7. The National Alliance for Family Court Justice, based in Virginia,

is an organization directed to lobbying for abused children and

legislative reform of court practices that are gender-biased or that

adversely impact children. The national director of the Alliance is

Elizabeth Richards. The Alliance’s interest in this Court’s grant of

certiorari is that political speech on behalf of children, not be stifled.

8. The National Committee for the Rights of the Child is a coalition

of other child advocacy organizations dedicated to establishing that

children are “persons” under the U.S. Constitution. Its president is

Ted Steege. NCRC includes many attorney participants and supports

the petition due to its advocacy for constitutional protections for the

voice of children in legal proceedings that affect them.

9. The National Task Force for Children’s Constitutional Rights,

Inc. is a multi-disciplinary organization founded by Connecticut

Superior Court Judge Charles D. Gill and Dr. Anne Burgess in 1988.

With membership in fifty states, the Task Force has appeared as

amicus curiae in appeals in state and federal courts where the

constitutional rights and interests of children are at stake. The Task

Force has an interest in more fully demonstrating to this Court the

need for granting review in this case to decide issues of compelling

public importance involving the constitutional rights of those who

advocate on behalf of children in the legal system.

10. One Voice/ACAA(“One Voice”), based in Washington, D.C., is a

national advocacy organization for abused children and adult child

abuse survivors. The American Coalition for Abuse Awareness

(“ACAA”) is the public policy project of One Voice. The president of

One Voice/ACAA is attorney Sherry Quirk. One Voice has an interest

in this case based on its belief that open discussion of victim and

children’s issues will be thwarted when attorneys and therapists fear

that their participation in honest dialogue will result in professional

censure.

11. Hal Pipinsky, J.D. and Ph.D., Professor of Criminology,

University of Indiana, has a professional interest in the rights of

abused children and their non-offending caregivers and has served as

an expert witness in child abuse cases. His interest in the petition is

due to his concern that the voices of child advocates not be silenced.

12. The Ross County Network for the Prevention of Child Sexual

Abuse (“The Network”) is a 501(c)(3) Ohio-based child advocacy

organization which includes attorney board members. Its director is

Portia Davis. The Network’s interest in the petition is based on its

concern that child advocates, particularly attorneys, are discouraged

from speaking freely on behalf of child safety.

13. Survivors and Victims Empowered (“SAVE”), based in

Pennsylvania, is a 501(c)(3) advocacy organization. Its director is L.

Philip Sheldon Jr. SAVE has an interest in the safety not only of

victims but of the right of others to advocate for them.

14. Survivors’ Network of those Abused by Priests (“SNAP”), based

in Illinois, is an organization whose goal is to assist survivors of clergy

sexual abuse. SNAP’s national director is David Clohessy. With

support groups in eleven states, SNAP has an interest in promoting a

freer public dialogue about the concerns of sexual abuse victims.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

This brief is submitted in accordance with U.S. Supreme

Court Rule 37, a consent letter from the petitioner’s counsel of record

being filed herewith, and a copy of the respondent’s consent letter

also being filed herewith, the original of which is being sent by the

respondent to the U.S. Supreme Court Clerk under separate cover.

The Amici, many of whom have attorney members and

spokespersons, are concerned that those attorneys, as a result of the

Oklahoma decision below, may now be subjected to discriminatory

professional discipline and loss of licensing due to the application of

broad, general, and vague regulations such as Oklahoma’s Rule

8.4{(d). Seven years ago this Court was called upon to place

constitutional restrictions on a State’s power to ban the public speech

of criminal defense attorneys in Gentile v. Nevada State Bar, 501

U.S. 1030 (1991). Still unaddressed, and a matter of grave public

importance, are the First Amendment restrictions that must be

imposed on a State’s ability to ban the unpopular but good faith

speech of an attorney motivated solely by concern for child safety.

Attorneys and other professionals who advocate for children

at a time of great political hostility to their efforts, are increasingly

targeted for professional discipline, with widely varying results. Such

professionals deserve to know that the First Amendment will protect

them at least as well as it does their right to engage in commercial

speech. A citizen who has reason to believe she must report systemic

child abuse, should not have to fear that her reliance on statutory

immunity for such report is meaningless. The Oklahoma decision

below leaves such assumptions open to question, resulting in the

chilling of a broad variety of speech.

Hine v. Oklahoma Bar Association offers this Court the

opportunity to clear up the confusion created by the Oklahoma

Supreme Court decision below, to reassert the individual’s First

Amendment_ freedom to interpret “justice” in more than one

officially sanctioned manner, and to reassure citizens that their

political expressions will not have to be paid for by censure in their

professional lives.

THE ARGUMENT

|. This Court Should Accept Certiorari to Rectify the Oklahoma

Decision Below Refusing to Protect Petitioner Hine’s Speech Under

the First Amendment, so as to Resolve and Clarify Serious

Questions of Public Importance as to the Circumstances under

which Lawyer Speech can Reliably Enjoy Constitutional

Protection’.

A. General disciplinary regulations prohibiting conduct that

prejudices the State's then current concept of justice, require this

Court's intervention and the setting of uniform constitutional

guidelines,

This Court has long observed the prejudice to the interests of

justice that occurs when trial courts confuse “offenses to their

sensibilities with obstruction to the administration of justice”. In re

Little, 404 U.S. 553, 555 (1972) (quoting Brown v. United States, 356

U.S. 148, 153 (1958)). Although

' The within brief was not prepared by counsel for any party, but the

petitioner participated in its preparation and covered the cost of printing.

“the fair administration of justice requires that lawyers

challenge a judge’s purported impartiality when facts arise

which suggest the judge has exhibited bias or prejudice”’,

judicial sensibilities may understandably continue to be arguable

topics of concern when a judge’s impartiality or even his integrity is

challenged. Such concerns have nonetheless been held not to justify

lawyer criticism, E. g. In re Sawyer, 360 U.S. 622 (1959); In re Snyder,

472 U.S. 634 (1985).

What is not so understandable is that concern about judicial

sensibilities has now been extended so that criticism of the conduct

of witnesses or others is considered “prejudicial to the administration

of justice” where the trial judge or the participating attorneys become

sufficiently upset about the criticism.’ The Amici submit that

protecting not only First Amendment rights of attorney speakers but

the interests of justice flowing from those rights, is difficult enough

when the speech is critical of the judiciary. Courts have had

problems with the breadth and generality of regulations such as Rule

8.4(d) for well over a century.* Such problems may be brushed aside

where the offending conduct “has nothing to do with conscientious,

but unpopular, opinions or ex post facto definitions of unethical

behavior.”* But the decision of the Oklahoma Supreme Court below

has everything to do with conscientious but unpopular speech and

must no longer be allowed to stand as precedent.

A growing body of citizens of every state now speak publicly

about political issues or associate in organizations in which others,

often lawyers, do so on their behalf. Aside from the massive and

seemingly enduring public interest in children’s issues, special

? United States v. Cooper, 872 F2d 1, 3 (1* Cir. 1989)

> Judge Lee’s testimony at p. 4 of the petitioner's Appendix speaks to the

degree of “upset” that the judge and both attorneys experienced, evidently

due to the SCAN letter’s criticism of two local agencies.

*E.g. Parker v. Levy, 417 U S. 733, 756 (1974); Ex Parte Secombe, 60 US. (19

How.) 9, 14 (1857)

* In Re Gillard, 271 N.W.2d 785, 809 (Minn. 1978)

interest groups, self-help groups, religious/political organizations and

other groups wishing to make a difference in public policy, if only at

the local level, are proliferating at a healthy rate ®.

The Oklahoma decision below casts doubt on such decisions

as Squire v. Pace, 516 F2d 240 (1975), cert den. 423 U.S. 840 and

People v. Klick, 66 I1.2d 269, 362 N.E.2d 329(1977) where the First

Amendment prohibited arbitrary prosecution of those who “annoy”

others. It is no longer such a great leap for citizens to wonder

whether disorderly conduct statutes or obstruction of justice

regulations will again be imposed to suppress expressions of political

opinion. After all, arguments may even be made that American

citizenship itself, like the status of being a lawyer, is a privilege that

carries responsibilities, one of which may include the foregoing of

government criticism, if believed to be intemperate.

B. Even under reduced constitutional standards, lawyer commercial

speech has enjoyed greater constitutional protection than that

afforded to petitioner Hine. The Oklahoma decision, if permitted to

stand, ludicrously suggests that political speech is less

constitutionally protected than is commercial speech.

Although First Amendment protections have always been

limited in the area of commercial speech, they are not insubstantial.’

When state professional licensing boards have sought to ban certain

commercial practices of members, this Court has often been skeptical

of the State’s claimed justifications, stating that even purely

° E.g. Frances Moore Lappe and Paul Martin DuBois in The Quickening of

America (Jossey-Bass Inc., San Francisco, 1994] describe and offer assistance

to what Henry Cisneros, Secretary of HUD refers to as “a new practice of

democracy as citizen problem-solving - in our schools, communities, and

workplaces”. Quickening lists over a hundred grassroots organizations, many

of which, like the Center for Community Change, the Maverick Institute, and

the National Issues Forum, exist exclusively to teach other organizations how

to promote public dialogue and participatory democracy.

’ Even a trial lawyers’ boycott aimed solely at forcing the government to

increase attorney compensation was protected under the First Amendment

in Superior Court Trial Lawyers Asso. v. FTC, 875 F2d 226 (App.D.C., 1988)

ee

commercial advertising “serves individual and societal interests in

assuring informed and reliable decisionmaking” * Citing Kleindienst v.

Mandel, 408 U.S. 753, 762-763 (1972), this Court particularly

emphasized that the First Amendment protects the public’s reciprocal

right to receive the commercial information the speaker has the right

to express. [Virginia Pharmacy Board v. Virginia Consumer Council,

425 U.S. 748, 757 (1976)]

In Bates v. State Bar of Arizona, 433 U.S. 350, 375 (1977) this

Court observed that there were other perspectives on the meaning of

justice than those of the organized bar, and rejected the Arizona Bar's

argument that lawyer advertising would improperly stir up litigation.

The Bates Court reasoned further that the expectation of advertising-

driven increases in accessibility of legal services to previously

underserved portions of the population strengthened the disciplined

attorneys’ First Amendment argument because the resultant stimulus

to “collective activity undertaken to obtain meaningful access to the

courts”’ was a matter deserving of significant constitutional

protection. Petitioner’s SCAN letter not only encouraged First

Amendment protected petitioning activity but itself constituted

collective petitioning activity lying at the core of the First

Amendment, a fact completely ignored by the Oklahoma court below.

At a time when information is exploding about child abuse

and its many subtopics, often spanning several disciplines, legislation

is being called for to require judges to learn more about many of the

same topics contained in the SCAN letter."* Mandatory judicial

* Bates v. State Bar of Arizona, 433 U .S. 350, 364 (1977). One would think

that judges are included in the category of persons who not only can benefit

from a free exchange of ideas and information, but who also do not need to

be insulated from hearing unpleasant information when unsophisticated

consumers need no such “protection”.

” Bates at p. 376, foomote 32 of the opinion.

'© State of the art information about such topics as children’s susceptibility

to coercion, and family reunification, is constantly changing. Keeping

abreast of the most accurate information available, or at least knowing

enough to-be able to properly evaluate the expert witnesses is crucial for any

judge who is addressing litigation involving abuse allegations.

training is being legislated, primarily due to a wave of public

sentiment expressed to Congress and state legislatures calling for

increased training in the new information."'

Since Virginia Pharmacy Board and Bates, this Court has set |

out with more specificity, the elements of the intermediate scrutiny ;

framework for assessing restrictions on purely commercial speech.

Even to regulate commercial speech, the State must prove that the

regulation is narrowly drawn and materially advances the State’s

stated interest.’ Rule 8.4(d), however, is anything but narrowly

drawn, apart from whether it is void for vagueness. Even had the

SCAN letter been sent for pecuniary motives, which it clearly was

not,’ the limited protections of the Central Hudson test would have

still precluded the Oklahoma Bar Association from banning the letter.

The Amici believe that this Court has a fundamental concern,

expressed in its later lawyer commercial speech cases, that lawyers

temper their “selfish pursuit of economic success by adhering to

'' Following the 1995 murder of two year old Ryan Luke, after he had been

judicially identified as at risk, Oklahoma enacted 10 Ok. St. Sec. 1211,

requiring judicial training in child abuse and neglect. The August 6, 1992

testimony of attorney Joan Pennington to the Judicial Committee of the U.S.

House of Representatives described the then urgent need for training, noting

that judges do not grasp the extent of child sexual abuse, tend to villify

parents who believe their children’s disclosures about child sexual abuse,

and deny meaningful opportunities to present evidence in support of the

child’s allegations. Some concerns about lack of judicial training are being

addressed by such curricula as the one created in late 1996 as a joint project

of the NOW Legal Defense and Education Fund in cooperation with the

National Association of Women Judges and the American Bar Association

Center on Children and the Law, entitled “Adjudicating Allegations of Child

Sexual Abuse When Custody is in Dispute”. At the trial court level, often in

rural counties, however, practices such as Judge Lee’s failure in the Perry

case to appoint an attorney, guardian ad litem, or CASA for the allegedly

abused child, though required under federal statute[42 U.S.C. Sec.

5 106a(b)(2)(A)(ix)], are all too common.

'? Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447

U.S. 557, 564-565 (1980)

" See p. 8a of Ok. Sup. Ct. decision below, App. A, pet./cert.

[higher] standards of conduct’."* In her dissenting opinion in

Shapero, Justice O’Connor focused on the Court’s two major concerns

in looking at why lawyers are regulated at all, and noted the twin

evils of (1 overzealous representation of a client, and (2)abuse of the

client for the lawyer’s benefit.'" Neither is a concern with this

petitioner. Out of concern for the many opportunities for

misconduct, members of this Court have urged lawyers to aspire to

the goal of voluntary public service, “a goal that transcends the

accumulation of wealth.” Broad and unclear bans on voluntary

public service such as those imposed below, hardly promote any

legitimate goals for the profession or the administration of justice.

C. Where a citizen has reasons to expect that her conduct is

protected not only by the First Amendment but also by child

abuse reporting statutes, the punishment of such citizen's speech

chills the speech of all other citizens.

One measure of safety a lawyer can perceive she has in a

profession in which broad, general regulations such as 8.4(d) are in

effect, occurs when statutes are in place that promise immunity.

Nonetheless there has always been an uneasiness among citizens

about reporting child abuse.'’ This uneasiness goes back to the time

'* Shapero v. Kentucky Bar Assn., 486 U.S. 466, 488 (1988).

'° Shapero \d. at p. 489

© Shapero \d., at p. 489.

'” It is well accepted that the

“voluntary reporting of suspected cases to community authorities

has been inhibited by many factors. . . Neighbors and friends

hesitate to make accusations. An abusive father or mother, facile

with explanations, often escapes discovery. . . Some physicians have

regarded reporting as a breach of the special confidential relation-

ship between physician and patient, and still others have failed to

report either because they did not know to whom to report, or

because they had no reason to believe that reporting would result in

benefit to the child.” Paulsen, M. “The Legal Framework for Child

Protection”, 66 Columbia L. Rev. 679, 710 (1966)

10

of Freud and even earlier'*, and has persisted at least until the time of

professional recognition of the Battered Child Syndrome in 1962."

'* Masson and others have told the story of Freud’s turn of the century

recognition of the prevalence of childhood sexual abuse in his patients and

his subsequent abrupt change of attitude. Masson, J. The Assault on Truth:

Freud's Suppression of the Seduction Theory. Farrar, Strauss, & Giroux, Hew

York , 1984. Herman, J. Father-daughter Incest . Harvard University Press,

Cambridge & London, 1981. Summit, R. “Hidden Victims, Hidden Pain:

Society's Avoidance of Child Sexual Abuse.” In G.D. Wyatt & GJ. Powell

(Eds), Lasting Effects of Child Sexual Abuse. (pp. 39-60). Sage Publications,

Newbury Park, CA. 1988. When he announced his “childhood seduction”

theory to the psychoanalytic establishment of Vienna, Freud’s psychoanalytic

colleagues threatened to destroy him professionally. [Masson (1984)]Freud

then aligned his thinking to conform to that of his colleagues, transforming

his “childhood seduction” theory into one in which the responsibility for

incestuous longings would fall squarely on the shoulders of the child, and in

which actual adult-child sexual interaction became merely a childish fantasy.

Ferenczi, one of Freud’s students, insisted that the original theory was

correct and based his lifework on that assumption. E.g. Ferenczi, S.

“Confusion of Tongues Between Adults and the Child: the Language of

Tenderness and Passion”. In M. Balint (Ed.) Final Contributions to the

Problems and Methods of Psycho-analysis (pp. 156-167), Hogarth Press,

London (1955). Freud joined his colleagues in casting aspersions not only on

Ferenczi’s professionalism, but his sanity. (Masson, 1984, p. 152). Dr. Karel

Pyck, Chair of the Department of Child and Adolescent Psychiatry, University

of Leuven, Belgium, reports that forensic writings concerning child sexual

abuse date back to the 1550’s and 1560's in France, but that cycles of

professional retaliation have repressed such information for centuries. ARCH

(Alliance for the Rights of Children) Newsletter, Summer, 1993, p. 5.

" Professional silence about child abuse was dramatically shattered with the

publishing of “The Battered-Child Syndrome”. [Kempe, Steele, Silverman,

Silver and Droegemueller, JAMA, July 7, 1962] Previous work by other

physicians had raised the issue of there being a curious link between

multiple fractures of the long bones and chronic bleeding under the skull,

which in turn lead to much speculation about how leg fractures could be a

complication of subdural hemorrhaging. Few had dared to look to

traumatic causation. [ See Siegel, B., pp. 202-212, A Deat’ in White Bear

Lake, Bantam Books, 1991, New York] Kempe and his colleagues did dare to

draw the obvious conclusions, noting in the article that

11

By the late 1960's virtually every state had enacted legislation

requiring physicians to report child abuse, generally with criminal

sanctions for failing to report merely suspected abuse.”°

However, the early child protection agencies were then, and

are said to be now, “patchwork systems of blurred responsibility,

often based on vague and superficial considerations”2' In

recognition of the growing problem of children suffering further

injury and even death after having been identified by a child

protection agency,” Congress passed the Child Abuse Prevention and

Treatment Act in 1974.”* Section 4(b)(2) of the Act provided, in part,

that as a condition for receiving federal assistance each State would

be required to enact legislation mandating immunity for reporters.

It is important to note that the federal act originally

standardized the definition of “child abuse and neglect” to be

“[t]he battered-child syndrome is a term used by us to characterize

a clinical condition in young children who have received serious

physical abuse, generally from a parent or foster parent. . . It is a

significant cause of childhood disability and death. Unfortunately,

it is frequently not recognized or, if diagnosed, is inadequately

handled by the physician because of hesitation to bring the case to the

attention of the proper authorities.” (Emphasis supplied]

*Besharov, D. “The Legal Aspects of Reporting Known and Suspected Child

Abuse and Neglect”, 23 Villanova L. Rev. 445, 465-466 (1978)

*' Besharov, D. Id. at p. 459; Judge Charles Gill likewise noted that in his

home state of Connecticut “[i]t is conceded that sixty percent of such calls

[regarding child abuse] are not afforded any response” and “[n]ot only are

child abuse and neglect wrong, but the nation’s lack of an effective response

to them is also wrong. Neither can be tolerated. Together they constitute a

moral disaster.” (Gill. C. “Essay on the Status of the American Child, 2000

A.D.: Chattel or Constitutionally Protected Child-Citizen?”, 17 Ohio

Northern L. Rev. 543, 552, 555 (1991)]

” Several empirical studies reveal that between 30% and 50% of children

dying from abuse were already known by the Child Protection System to be

at risk. See Berliner, L. and Gelles, R. “Is Family Preservation in the Best

Interest of Children?” 8 J. Interpersonal Violence 556, 560 (Dec. 1993).

> 42 US.C. Sec. 5101-5106

12

“the physical or mental injury, sexual abuse, negligent

treatment, or maltreatment of a child under the age of

eighteen by a person who is responsible for the child’s welfare

under circumstances which indicate that the child’s health or

welfare is harmed or threatened thereby.”*

Under this definition, given the testimony of the Perry child’s

therapist, Linda Palmer, [Pet. Cert. App. E] and others given at

petitioner's trial, the conduct of the county agencies involved in

investigating the Perry child’s alleged abuse and implementing the

supervised visitation order, unequivocally appears to meet the

federally standardized definition of abuse or neglect.”? The fact that

the abuse or neglect of the Perry child was at the hands of the

government agencies did not “exempt or prohibit” petitioner Hine

from reporting in good faith to Judge Lee.”

Petitioner had every reason to believe her act of reporting the

suspected mistreatment of the child within the child protection system

was not only permitted, but mandated by state law.”

* 42 US.C. Sec 5106g(4).

?° The Committee on Labor and Human Resources reported in July, 1995

that “child protective systems (CPS) are routinely placing children in

jeopardy” and quoted the U.S. Advisory Board’s 1990 report entitled

“Critical First Steps in Response to a National Emergency” as stating in

reference to the CPS that ‘the safety of children cannot be ensured. Indeed,

the system itself can at times be abusive to children’. Report No. 104-117 to

Accompany S. 919, 104" Congress, 1* Session, Calendar No. 149, legislative

day, July 10, 1995, pp. 2-3.

© See 10 Ok. St. Sec. 846(G). 10 Ok. St. Sec. 7105 seemed to provide Hine

and others with

“immunity from any liability, civil or criminal, that might otherwise

be incurred or imposed. Any such participant shall have the same

immunity with respect to participation in any judicial proceeding

resulting from such report.” [Emphasis supplied]

7 10 Ok. St. Sec. 846(A)(1)(d) renders all “other person{s]”, i.e. persons

other than physicians, nurses, and teachers named in Sec. 846(A)(1)(a)-(c),

mandated reporters.

13

If the Oklahoma decision below continues to stand, it can be

anticipated that citizens who suspect child abuse perpetrated by an

individual or an institution, will again fear retribution for reporting.”

ll. This Court Should Accept Certiorari in Consideration of the

Hostile Political Climate in which Petitioner’s Speech was

Subjected to Punishment, the Probability that Oklahoma’s

Rule 8.4(d) was Applied to her Speech in a Discriminatory

Manner, and the Compelling Public Importance of this Court’s

Setting Clear Constitutional Standards for Such Regulations

that Continue to Stifle Public Discourse about Controversial or

Unpopular Topics.

A. Control of the media by the anti-child protection backlash has

unduly influenced the legal profession.

It is common and usual for any reform movement, after it

achieves a certain measure of public support and sympathy, to be

subjected to an opposition movement, which will be referred to in

the context of the child protection movement,' as “the Backlash”.”

Backlash movements generally, as is true of the anti-child protection

movement, present themselves as not being opposed to the publicly

accepted goals of the reform movement. After all, it is difficult

*® Fear and the consequent chilling effect that it produces upon speech need

not be rational to be effective at silencing child abuse reports.

“Fear of being sued unjustly for libel, slander, defamation, invasion

of privacy, and breach of confidentiality is frequently cited as a

deterrent to more complete reporting. [Citations omitted] This fear

exists even though applying existing legal doctrines leads to the

conclusion that anyone making a legally mandated or authorized

report would be free from liability so long as the report was made

in good faith. ‘The point is that the common law and all of our

decisional authority already confers such immunity, and there is no

American case that even suggests that there may be liability for a good

faith report of the kind required by battered child statutes.’”

[Besharov, D. at p. 475. ( Ft. 20 Supra)]

Myers, J. (Ed.) The Backlash. Sage Publications, Thousand Oaks, 1994.

14

politically to publicly oppose the concept of child protection. The

posture of the Backlash movement is that it is not the “goals” of the

reform movement that are opposed, only its “methods”. *

And so it has been with child protection. With the fanfare

that accompanied Kempe’s Battered Child Syndrome and then

Roland Summit’s Child Sexual Abuse Accommodation Syndrome”,

the public, the news media, and even the legal system, seemed by the

mid-eighties to be prepared to receive and process increasing

numbers of newly mandated disclosures of child abuse. Funds

became available, to a certain extent, for studies of the issues,

though in amounts inadequate to deal with the annually

geometrically increasing wave of child abuse reports.”

While the child protection system of the 1980's was -ill-

equipped to fulfill its mandate,” by 1991 more than 80 percent of

news coverage about child sexual abuse was weighted toward stories

of survivors and the nature of childhood trauma.” By 1994,

*° Conte, J. “Child Sexual Abuse: Awareness and Backlash”, pp. 224-233, Vol.

4, The Future of Children, Summer/Fall, 1994.

*' Summit, R. “The Child Sexual Abuse Accommodation Syndrome”, 9 Child

Abuse & Neglect, pp. 177-193 (1983)

*? Reports of children suspected of being abused or neglected increased

twenty-fold from 1963 to 1993, from approximately 150,000 to 3 million.

See Report 104-117 from Note 23 supra, at p. 13.

*8 Major cuts in social service funds in the 1980's left few resources for

personnel and training opportunities needed for effective prosecution, ot er

than though a few such enactments as the Children’s Justice Act of 1986 and

NCCAN. Joint Investigations of Child Abuse: Report of a Symposium, U.S. |

Dept./Justice Office of Justice Programs, July, 1993. Alice Vacchs’ Sex Crimes,

Owl Books, New York, 1994; reported at p. xi that the United States Judiciary

Committee's “Violence Against Women: The Response to Rape: Detours on |

the Road to Equal Justice”, based on 1990 statistics, found that 98% of rape

victims never saw their attacker caught, tried and imprisoned. It is

estimated that some 61% of rape victims are children. National Victim

Center and the Crime Victims Research and Treatment Center, Rape in

America. A Report to the Nation, April 23, 1992, pp. 1-16.

* University of Michigan sociologist Katherine Beckett's 1996 study of media

portrayals of child sexual abuse in four national magazines [Time, People,

be iiiamiisiiaaimabiiialiiiail

15

following the 1992 organization in Philadelphia of a support group

for parents accused of sexually abusing their children®®, more than 80

percent of news coverage in the same publications focused on false

accusations and the newly coined concept of “false memory”.

Despite the continuing escalation of child abuse reports in all

states, the sophisticated strategies of the False Memory Syndrome

Foundation began to have a substantial impact on media portrayals

of child abuse, particularly child sexual abuse. There are said to be at

least 247 articles about the FMSF or its founders, in such national

newspapers and magazines as USA Today, The Washington Post, The

Baltimore Sun, The Chicago Tribune, The Los Angeles Times, The

Dallas Morning News, Newsweek, Time Magazine, and Psychology

Today.” Television programs sympathetic to the Backlash and to

Newsweek, and U.S. News & World Reports] is described in Mike Stanton’s

“U-Turn on Memory Lane”; Columbia Journalism Review, pp. 44-49,

July/August, 1997.

* Id. Pamela and Peter Freyd, privately accused of child sexual abuse by

their adult daughter, Dr. Jennifer Freyd, in 1990, formed the False Memory

Syndrome Foundation (“FMSF”) as part of a public campaign ostensibly

challenging the validity of recovered memories of sexual abuse which had

been suppressed in a form of “traumatic amnesia” .

© See fints 34 and 35 supra.

” The FMSF is the primary Backlash organization, but other groups have

preceded or spun off from it, including VOCAL (Victims Of Child Abuse

Legislation), and the Children’s Rights Council. Although not formally

affiliated with the FMSF, such organizations as NAMBLA (North American

Man Boy Love Association) and a Newsletter entitled “Uncommon Desires”

[published by New York attorney Lawrence Stanley according to New York

Daily News Staff Writer Gene Mustain], openly espouse the de-

criminalization of sex between adults and children. Prominent FMSF

spokesman Ralph Underwager has publicly endorsed the professionalism of

the NAMBLA publication Paidika. He was quoted in that publication as

agreeing that pedophilia was “a responsible choice for the individual”.

Paidika: The Journal of Pedophilia, pp. 2-12, 3 Vol. 3, Winter (1993). FMSF

Board member Hollida Wakefield was quoted at p. 12 of the same article: “It

would be nice if someone could get some kind of big research grant to do a

longitudinal study of, let’s say, a hundred twelve-year-old boys in

relationships with loving paedophiles.”

16

those referring to themselves as falsely accused, have appeared

regularly on such national news programs as Turning Point®,

Frontline, Good Morning America, and National Public Radio.”

The rising influence of the Backlash in the popular media has

been paralleled in seminars and other continuing legal education

materials, including several in Oklahoma.” Not surprisingly, this

country began to see increasing numbers of décisions in which the

*® ABC's Turning Point has produced several documentaries, the latest of

which [“When Children Accuse: Who to Believe?) broadcast on July 24,

1997, took the position that many prosecutions resulting in convictions for

child sexual abuse, are based on evidence manufactured by over-zealous

therapists and prosecutors. Convicted defendants were portrayed as the true

victims. The Turning Point series of programs include in-depth interviews of

alleged victims only if they had recanted, a not unusual phenomenon for

bona fide victims of parental abuse.

” Freyd v. Whitfield, D.C. Md., No. L-96-627 Memorandum opinion of Judge

Benson Everett Legg entered July 18, 1997, at p. 2.

*° FMSF spokespersons Underwager and Wakefield presented a “Child Abuse

Sex Crimes Seminar” in Oklahoma City, Ok. October 26, 27, and 28, 1995,

attendance at which entitled Oklahoma attorneys to continuing legal

education credit from the Oklahoma Bar Association. Underwager’s 1995

Vita claimed presentations to at least twelve attorney associations between

1987 and 1995 in the states of Minnesota, Florida, lowa, Mississippi,

Wisconsin, Kentucky, North Dakota, New York, Tennessee, North Carolina,

Indiana, and Nebraska, as well as in Australia, apart from numerous

presentations to media, law enforcement, and legislative bodies.

By the mid-1990’s Oklahoma’s Family Law Journal, a publication of

the Oklahoma Bar Association's Family Law Section, when it contained

articles concerning child sexual abuse, included primarily articles slanted

toward the Backlash. E.g. Call, J. “False Allegations of Sexual Abuse in

Custody and Visitation Disputes”, 9 Ok. Fam. L.J. 76 (Nov. 1994); Adams, J.

“Child Abuse Reporting Laws: Recent Controversies”, 10 Ok. Fam. L.J. 61

(June, 1995), As in other states, Oklahoma decisions by the mid 1990’s at

all levels began to reflect a willingness to award custody to those accused of

child sexual abuse. E.g. Kahree v. Kahree, 66 O.BJ. 3771 (Ok. 1995); Matter

of R.LS., 65 O.BJ. 2829 (Ok. App. 1994)

17

validity of children’s accusations of sexual abuse was discounted.’

Part of the rationale of many of such decisions included the

characterization of children’s therapists as unethical.” Although not

targeted to anywhere near the extent of children’s therapists,

attorneys associated with child protection have increasingly come to

be subjected to defamation suits, Rule 11 sanctions, and bar

disciplinary proceedings, as has been petitioner Hine.”

B. The political climate created by the Backlash and its

extraordinary efforts to silence its critics must be fully

considered in assessing the potential for discriminatory

applications of Rule 8.4(d)

When this Court last considered the issue of First

Amendment protection for attorneys charged under imprecise

disciplinary regulations such as Oklahoma’s 8.4(d), Justice Kennedy’s

opinion paid particular attention to the potential dangers of

discriminatory enforcement.” In Gentile the inquiry was of particular

relevance because of the unusual susceptibility of the criminal

‘defense bar, due to its constant position of criticizing government.

Attorney Hine is likewise a member of a group, consisting of

professionals who advocate vigorously for children, that is

demonstrably susceptible to such potential discrimination.

The Backlash has been remarkably successful in its strategies

of shifting the focus from child victims to the allegedly falsely

* E.g. Morgan v. Foretich, 846 F2d 941 (4 Cir. 1988) and cases described in

Summit, R. “Too Terrible to Hear”, March 13, 1987 revision of paper in

support of testimony before the U.S. Attorney General’s Commission on

Pornography, Miami, FL., November 20, 1985, available through Harbor-

UCLA Med. Ctr., D-6, 1000 W. Carson, Torrance, CA. 90509; and in Rotondo,

S. “Who's Protecting Whom?”, (pp. 6-9)Body Memories, Berkeley, CA.

Spring, 1995

” E.g. Kahree v. Kahree, at ftnt 38 supra; See also Sullivan v. Cheshier, 846

F.Supp. 654 (N.D. Ill. 1994); Ramona v. Isabella, No. 61898 (Cal. Super. Ct.

May 13, 1994)

* See fits. 45-48 infra.

“ Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991)

18

accused, as well as in its primary objective of influencing media

coverage.”” Successful FMSF techniques also include congressional

lobbying, public lectures, scientific conferences, on-line discussion

groups, a newsletter, an 800 number, the picketing of therapists’

homes“, defamation suits”, and grievances against troublesome

attorneys.”

* Stanton article, at ftnt. 31 supra, p. 47 quoting Katherine Beckett.

** Freyd v. Whitfield, Id. at p. 2

*’ Aside from the defamation suit against trauma expert Whitfield, a series

of suits have been filed against HBO, Inc. and others, including an attorney

commentator, due to a documentary critical of the role of the Houston

judiciary in child sexual abuse cases [Huckabee v. HBO, Inc., No. 93-00116,

Harrison v. HBO, Inc., No. 93-052010, and Hebert v. Grant, No. 93-041705,

127* Jud. Dist. Ct./Harris County, Texas; the first two suits are now on

appeal in Ct./App. 14" Jud. Dist, Houston, Tx., as Case Nos. 14-96-01528-CV

and 14-96-01529-CV, respectively] Lawsuits and picketing of therapist and

newsletter editor David Calof caused serious interruption of the publication

of Treating Abuse Today. The problem of rising numbers of suits against

therapists who hear the disclosures of adult survivors, in which increasingly

novel theories are used in support, are described in Bowman, C.. and

Mertz, E. “A Dangerous Direction: Legal Intervention in Sexual Abuse

Survivor Therapy”, 109 Harvard L. Rev. 549, Jan. 1996.

FMSF psychologists Ralph Underwager and Hollida Wakefield sued

psychologist and researcher Dr. Anna Salter and ten other entities, including

the National Center for Prosecution of Child Abuse and several attorneys, for

defamation in Underwager v. Salter, 22 F3d 730 (7® Cir.1994). The Court of

Appeals affirmed the grant of summary judgment to the defendants, ruling

that Underwager and Wakefield would not be allowed to

“silence those who hold divergent views, no matter how adverse

those views may be to plaintiffs’ interests. Scientific controversies

must be settled by the methods of science rather than by the

methods of litigation.” (P. 736 of opinion)

** Joan Pennington Id. reported to Congress concerning the disbarment of

Garnett Harrison in Mississippi because a mother she was representing was

incarcerated until she revealed the names of those who had helped her hide

her children. In divulging this information she implicated her attorney.

Harrison denied knowing the children’s location. Newsome v. Newsome, 557

So.2d 511 (1987). Pennington also testified concerning attorney Alan

Rosenfield, an attorney and child advocate in New Hampshire, whose license

19

Such tactics, taken as a whole, are reminiscent of earlier

periods in the history of this Court’s championing of First

Amendment rights. It was certainly not in a vacuum that Dirk

DeJonge was prosecuted for speaking at a Communist Party meeting

in protest of local jail conditions. Delonge v. State of Oregon, 299 U.S.

255 (1937). This Court, though not specifically speaking to

discriminatory enforcement, clearly considered the volatility of the

often overzealous anti-Communist sentiment prevalent in this

country when it enforced the First Amendment not only in Delonge

but again when protecting the speech of an attorney so frustrated

with the elusive process of defending persons charged under the

Smith Act that she publicly questioned the integrity of the trial

process. In re Sawyer, 360 U.S. 622 (1959). This Court again

considered the political context of attempts to discipline NAACP

lawyers in the 1960’s and permitted those lawyers the protections of

the First Amendment.”

was suspended due to advice he gave a client about a judge’s contemplated

reaction in the event she ran to protect her abused child.

In a recent case very similar to petitioner’s, Woody Allen, whose

sexual abuse defense was conducted in large part by the FMSF, brought a

grievance against prosecutor Frank Maco, due to press conferences and a

faxed letter sent to judges presiding over the Mia Farrow/Woody Allen

custody/visitation proceedings. On July 17, 1997, following several years of

disciplinary proceedings in which prosecutor Maco, like petitioner Hine, had

been charged with violations of Rule 8.4(d) (conduct prejudicial to the

administration of justice], a Connecticut Statewide Grievance Committee

voted twelve to one to dismiss the complaint. Allen v. Maco, Grievance

Complaint No. 93-0322. Paralleling the testimony of Dianna Carroll in the

case at bar, [App. E, pet/cert, p. 1 le] Joan Pennington’s Congressional

testimony observed that Backlash lawsuits against professionals

“rarely win, however it is still costly to defend a court action even

when you are innocent. In addition, this type of strategy has a

chilling effect on all of those who would like to help the protective

parent, but are afraid of the of expense of defending in a civil

lawsuit.”

* E.g. NAACP v. Button, 371 U.S. 415 (1963).

20

A full consideration of the hostility of the political climate

toward child advocates will lead this Court to conclude that the

vagueness and overbreadth of Rule 8.4(d) nourished the potential, if

not the actuality, of discriminatory application of the rule to the

petitioner so as to silence voices seeking to speak for children in a

way that has become unpopular with the Backlash influenced

orthodoxy.

Ill. CONCLUSION

When a lawyer is punished for speaking as a citizen about

timely political topics of grave public interest and concern, and a

State court of highest resort does not even acknowledge that the First

Amendment is involved, it is incumbent upon this Court to review

the limits on a State’s power to apply broad, general regulations that

stifle unpopular political speech. The Amici join in requesting this

Court to review the decision of the Oklahoma Supreme Court below.

Respectfully submitted,

Amici Curiae

Richard L. Ducote Esq.

335 Decatur Street

New Orleans, Louisiana 70130

(504)581-5152