Former South Carolina Republican Party Chairman Todd Kincannon is perhaps the world’s most famous Twitter troglodyte. His venom towards women, minorities, and evolved human beings is the stuff of legend, and his past trolling has resulted in not one, but two Twitter accounts being banned — as well as a lecherous reputation. Now on his third Twitter account, Kincannon is suing the South Carolina Office of Disciplinary Counsel and the Commission on Lawyer Conduct alleging that they have conspired to stomp all over his First Amendment rights. But as blogging attorney Ken White notes, there is something unusual going on here:
The complaint does not read like the work of a lawyer, at least not a competent one. It reads like a press release or a blog post, or perhaps the work of a federal prisoner. It doesn’t have any of the elements you would expect in a complaint, like jurisdictional allegations or clear causes of action or even specific identification of the parties. Moreover, the complaint is very conspicuously vague; it does not say with any specificity which disciplinary authorities said exactly what, or when. I recognize it is fashionable to say that legalese is bad and plain speech is good, but there are things you ought to put in your complaint if you don’t want it dismissed and you want it to be taken seriously.
Have South Carolina attorney discipline authorities actually attempted to censor Todd Kincannon’s political speech? I don’t know. His odd vagueness makes me skeptical. I would expect any First Amendment complaint to include specific details, like quotes from the threatening communications.
Ever the libertarian, White balances his skepticism with references to anti-free speech actions taken against lawyers by other states. But White fails to explain that South Carolina’s due process system for accusations of lawyer misconduct simply doesn’t allow that kind of political or personal vendetta to proceed unchallenged. While Lesley Coggiola and Barbara Seymour do run the Office of Disciplinary Counsel, their investigations do not proceed to trial at the South Carolina Supreme Court unless the 50-member Commission on Lawyer Conduct recommends it. So even if Coggiola and Seymour were ‘out to get’ Kincannon, they would need dozens of diverse people to cooperate with their scheme.
According to my sources within the Office of Disciplinary Counsel, they receive some 1,800 complaints a year against lawyers practicing in the state. About 80% of these are ascribed to litigants or defendants who are just unhappy with the outcome of their cases. Those are all dismissed, and then the Commission turns down at least a quarter of the remainder. At most, only about 15% of all complaints are ever even heard by the state supreme court. And unless the five-judge bench decides to sanction the attorney, the public will never even find out that there was a complaint. The entire system is set up for the privacy of lawyers.
Furthermore, there really are restrictions on speech that apply only to lawyers. For example, attorneys are not allowed to have ex parte communication with a judge while opposing counsel is not present, or to talk to a client of another lawyer. Or given Mr. Kincannon’s penchant for intemperate ranting, he may have run afoul of the civility clause in his oath, which the state Supreme Court upheld just three years ago. But again, those ethical limits weren’t set by the Office of Disciplinary Counsel, or the Commission, or state law; they were created by Kincannon’s peers in the South Carolina Bar Association.
It’s also important to understand that should Kincannon be sanctioned by the court for his conduct in social media, it will certainly break some ground — but it won’t be the first, or last, time that a lawyer got in trouble online. Indeed, bar associations have been grappling with these challenges for a long time, updating policies to prevent attorneys from violating confidentiality or communicating ex parte in email listservs. So even if these issues are new to Twitter, they are not new to the law. No matter what you read in some sympathetic right wing blog, therefore, Todd Kincannon’s lawsuit is not about defending free speech from unlawful overreach by offended liberals in high offices. That’s the story he would like everyone to believe, which is why his lawsuit reads more like a blog post. So what else could be driving his litigation? Reading the complaint, you may notice this bit:
In early July of 2014, Defendants finally notified Kincannon in no uncertain terms that they took the position that his political commentary was unethical. This interfered with the release of a book Kincannon had written and led to the filing of this Complaint. (Emphasis mine)
And there you have it: Todd Kincannon has a book to sell and fame to chase. After all, he created that Twitter hashtag for the sole purpose of shutting down the free speech of liberals and spends every day lording it over his followers like a cult leader — surely he has earned the right to more than mere internet-infamy? Kincannon wants his turn in the TV spotlight. To stand beside other great liberal-baiters like Ann Coulter and Rush Limbaugh, he needs right wing ‘think tanks’ to buy his book in bulk and game the New York Times bestseller list. He needs a hook to get invited on all the right shows. So from a marketing standpoint, “free speech martyr” is pure gold: conservatives love their persecution narratives, and the more strained and ridiculous they are, the better (see: Benghazi). Kincannon must reckon that, no matter what happens in the state’s highest court, he can spin a fortune out of it. And he is probably right.