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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1107%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 864

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1107%3A3. Public record. Not legal advice.