Colorado’s Latest Speech Test: Lawyers Forced to Choose Between Clients and Conscience

Ever wonder where the phrase “Hobson’s Choice” comes from?
 
Thomas Hobson was an Elizabethan-era owner of a large stable in Cambridge, England, with 40 horses. This led new customers to believe they had a choice of mounts. Once they had put down the princely sum of four pounds, they discovered that the only horse they could choose was the one that Hobson had placed in the stable nearest the door. 
 
Hobson would fit right in with the state of Colorado, a repeat offender when it comes to testing the limits of the First Amendment with phony choices, only to get smacked down by the courts. The most-recent smackdown occurred when the Supreme Court ended Colorado’s attempt to control the speech of therapists. The Court’s ruling was 8-1, with a concurrence from liberal Justices Elena Kagan and Sonia Sotomayor.
 
A new controversy out of the state’s court system suggests Colorado hasn’t learned the lesson.
 
Jimmy Sengenberger of The Denver Gazette reports that Colorado’s judicial branch imposed a certification requirement on attorneys using its e-filing system – one that many lawyers say forces them into a compelled statement tied to the state’s policy agenda. It requires them to make a binding agreement – under “penalty of perjury” – that they will not use personal information from the system to cooperate with, participate in, or assist federal immigration enforcement.
 
Attorneys report that they could not access court filings unless they clicked “accept,” even after trying to decline. That puts lawyers in an impossible bind:

• Accept a government-imposed statement they may disagree with

 

• Or fail in their ethical duty to represent their clients

 
In the end, there is no choice. As one attorney put it, his professional obligations forced him to comply – even over his personal objection. That’s not consent. That’s coercion.
 
Compelled Speech, By Another Name

The First Amendment protects not only the right to speak – but the right not to speak. The U.S. Supreme Court has repeatedly held that the government cannot force individuals to endorse messages they do not believe.
 
Yet here, the state conditions access to the courts on agreement with a state-mandated certification. Critics say the rule is “blatantly content- and viewpoint-based,” raising serious constitutional concerns. 

Worse, the statutory authority cited for the rule reportedly does not clearly authorize such a requirement, leaving “considerable ambiguity” about its scope. When the government compels speech without clear authority – and ties it to access to justice – it crosses a dangerous line.
 
Lawyers are officers of the court, but they are also citizens with First Amendment rights. When the state pressures them to adopt specific positions – particularly on politically charged issues – it risks turning advocates into instruments of government policy.
 
Colorado has a choice – to continue down the road of speech control and add another loss to its record, or to finally embrace the principle that in America, the government does not get to script what we say.

DONATe & HELP US DEFEND YOUR FIRST AMENDMENT RIGHTS