It’s curious that South Carolina lawyer David Traywick chose not to fight. His lawyers expressly refused to assert a First Amendment defense, and the Court, in deciding the case, expressly chose not to consider it. Instead, they grounded their decision in two rules of professional conduct, Rule 402(h)(3) requiring lawyers to “maintain the dignity of the legal system,” and Rule 7(a)(5), prohibiting conduct tending to bring the courts or the legal profession into disrepute.
It happened on Facebook, where Traywick wrote some angry and vulgar posts. There are, according to the decision, 12 statements at issue, but only two are recited in the decision. Presumably, they are the most offensive of the bunch. They were sufficiently offensive to cause 46 people to complain about Traywick. It’s unclear from the decision whether these were lawyers, clients, judges or just 46 random people who happened to see his Facebook page. Apparently, the number of people was of sufficient consequence to make the opinion.
The first of the two described statements involved tattoos. What he had to say about them isn’t entirely clear from the opinion, but it is clear that he was not a fan of tattoos.
On April 5, 2020, Respondent posted an offensive comment regarding tattoos to his Facebook page. In the comment, he challenged his readers, “Prove me wrong. Pro tip: you can’t.” A reader wrote back suggesting Respondent prove he was right regarding his theory about tattoos. Respondent then stated,
The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!
Was his “theory” about tats so offensive that it couldn’t bear explaining? Perhaps, even if the court didn’t asterisk out “mother fuckers.”* The second described statement was about George Floyd.
On May 25, 2020, George Floyd—a black man—was murdered by a white police officer in Minneapolis, Minnesota. The racially-charged atmosphere that resulted from Mr. Floyd’s murder is well-known. On June 3, 2020, at the height of this racially-charged intensity, Respondent posted the following to his Facebook page,
Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.
In the aftermath of a murder, few choose to denigrate the deceased, even if they didn’t beatify him. But the court’s understanding of these two Facebook posts made clear that it did not take kindly to Traywick’s “unpopular” view.
We find these two comments warrant a six-month suspension. These comments are not expressive; they are expressly incendiary. Both are statements by a lawyer on his social media account identifying him as such and listing the name of his law firm. The statements were intended to incite, and had the effect of inciting, gender and race-based conflict beyond the scope of the conversation Respondent would otherwise have with his Facebook “friends.” The fact Respondent is a lawyer exacerbated this effect.
There is a litany of things wrong, and to be frank, perverse, with both Traywick’s statements and his compulsion to post them publicly. The word “shitstain” has long been a cop favorite when describing a black person for whom they hold no regard, and it would not be a stretch to argue that it is a racist epithet. Even if you are of the view that Floyd was no hero for being killed, speaking ill of the dead before the body is cold is a horrible thing to do.
But they are most definitely expressive, even if they’re offensive. They may have been intended to incite, since one can never truly know what’s in the mind of another, even a lawyer. But that doesn’t make them incitement under Brandenberg. There was no likelihood that his words were likely to cause imminent lawless conduct. Offense, definitely, but not lawlessness.
Yet, the offensiveness of these words was sufficient to invoke the “dignity” of the profession, that brings the profession into “disrepute.”
We are particularly concerned with the statement regarding Mr. Floyd. We find this statement was intended to incite intensified racial conflict not only in Respondent’s Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.
There are a great many opinions, words, ideas, that could be expressed by lawyers on social media that 46 people (or hundreds of thousands, for that matter) might find undignified and bring the profession into disrepute. I might have even uttered one or two over time. Chances are fairly good that you did too, whoever you are. As much as Justice Breyer adores the word “dignity,” it’s no more than another normative word that reflects the personal sensibilities of others.
Was David Traywick undignified on Facebook? Sure, even if you’re in general agreement with his views. He expressed himself poorly, deliberately offensively. But then, that’s part of the point of making a controversial and inflammatory assertion. And that’s part of the point of the First Amendment, that even lawyers, outside of court and unrelated to their practice of law, are still entitled to be offensive assholes if they want to be.
But don’t cry for Traywick’s free speech rights. Not only is he an asshole, but he made the decision not to assert the First Amendment in his defense, and to capitulate to discipline by copping out. This weasel wasn’t just an offensive asshole in his own right, but lacked the balls to stand up for the First Amendment for the benefit of the rest of us.
*I, too, am not a fan of tattoos, in general, and for lawyers, in particular. Your mileage may vary, which is fine, but that doesn’t mean I have to like them.