Maybe you read the article here about the battle to integrate the state Capitol cafeteria. That was in 1964. These days, we shake our heads at state officials who believed, even then, that a public facility inside the state Capitol could stay segregated forever.
But customs can still beget blindness, especially among those whom they comfort. The fact that some comforts rest upon the denial of others' civil rights can still pass unnoticed by those in power.
Consider a more current blindness. Instead of the capitol cafeteria, this involved a custom of the Arkansas Supreme Court. Instead of citizens being denied service at a state institution, a violation of the Fourteenth Amendment, they were denied free speech by a state institution, in violation of the First.
Just as state police once enforced segregation, the state Supreme Court has silenced discussion of complaints filed against attorneys. No kicks, punches or billy clubs were needed to enforce the prohibition. The Supreme Court sustained its custom with power uniquely its own.
The judicial system is self-regulating, under the Supreme Court's control. Attorneys and members of the general public may file complaints against attorneys whom they believe have acted unethically.
The court's rules required that complaints be kept confidential. Persons who filed a complaint about an attorney with the court's Office on Professional Conduct were immediately informed of this by mail. Anyone violating that rule, the letter warned, could be found in contempt of court and fined or jailed.
You can see how such a caution, delivered on "Supreme Court of Arkansas" letterhead, might be intimidating, and how it could tend to stifle discussion of lawyers who might be running for office.
The rule on confidentiality arose from an effort to protect attorneys from the need to defend themselves from frivolous complaints that became publicly known. Most attorneys appreciate that. Few questioned the requirement for them to report misbehavior — but not to disclose it publicly—as the need to maintain confidence in courts was drummed into them at law schools and reinforced by sessions on ethics.
The problem is that, while this rule comforted the profession, it came at the public's expense. I learned this firsthand after filing complaints with the Office of Professional Conduct and receiving those not-so-nice warnings.
It all struck me as wrong. But when I wrote of my concerns about the rule's constitutionality to Stark Ligon, the office's director, I received no response.
In November 2011, I filed a civil rights lawsuit challenging the Supreme Court's rule. My attorney, Jeff Rosenzweig, argued in federal court that the rule was an unconstitutional restraint of speech. The Arkansas attorney general's office represented Ligon and the court's Committee on Professional Conduct. A trial was scheduled for later this year.
But at the end of last year, we agreed to settle out of court. I dropped my lawsuit in January, after the Supreme Court ordered one brief (but big) change to its rules: Now, "a complainant may disclose the fact that he or she has submitted a complaint to the Office of Professional Conduct and the contents of the complaint."
What Ligon's office does with a complaint will still remain confidential, unless a sanction is issued, in which case that action is public. But for the first time, attorneys and ordinary citizens are free to report behavior they consider unethical and to speak and write of it without fear of court-imposed punishment.
I hope the commission that regulates judges will announce a similar change soon. And, like the cafeteria, I hope this overdue freedom will be used.
Exercising it will not transform the quality of justice in Arkansas, any more than integrating the Capitol's cafeteria transformed race relations here. But both changes mark a start. At last, elections of prosecutors and judges may become more open and informed — as the First Amendment intended.
The change will make some folks uncomfortable. But, like the integration of the cafeteria, Arkansas will survive.
Max Brantley is on vacation.