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The Right to Bare Arms, Etc.

We've stayed away from the discussion of Brooklyn Law School student Adriana Dominguez, confident that David Lat at Above the Law would give full coverage to her uncovered exploits. But the incident brings up an intriguing question, already raised here and here,  as to whether Dominguez's decision to pose nude should have any bearing on her character and fitness to practice law. Here is where we need the deliberative perspective of a constitutional scholar, a challenge Eugene Volokh readily accepts by reminding us that even law students have First Amendment rights. He explains:

"[I]t seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos. ...

"The government has been historically granted some extra latitude when it comes to licensing lawyers. ... But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here."

Another blogger, Ann Bartow at Feminist Law Professors, put forward a similar position, even more succinctly, when she wrote: "I don't think nudity is an ethical violation."

So there you have it: the lawyer's right to bare arms -- or anything else.

Posted by Robert J. Ambrogi on April 13, 2007 at 03:08 PM | Permalink | Comments (2)


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