Lawyer Who Rage-Tweeted BLM Protests Avoids Discipline

• Pages: 7-7
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: C. Michael Judd
• Subject Matter: Civil Law

California lawyer with a low-

prof‌ile Twitter account tapped

out a string of vague but

menacing tweets related

to ongoing civil-rights

protests. When she clicked “post,”

she found herself testing the overlap

between legal ethics and free-speech

protections. Applying First Amendment

law, a state bar court dismissed the dis-

ciplinary charges, f‌inding that no matter

how “unbecoming” those tweets were,

prosecutors failed to oer evidence that

her audience—however large or small—

would have understood her tweets as

immediate incitements to violence.

In late May 2020, in the days follow-

ing George Floyd’s death at the hands

of police in Minneapolis, protests sprang

up across the country. Downtown Los

Angeles was a hotspot: hundreds gath-

ered for demonstrations that, at least on

occasion, spilled over into lawlessness

and violence. On the evening of May 30,

unrest swirled into a high-end shopping

mall called The Grove, where protestors

set f‌ire to a police kiosk.

At her home near The Grove, a police-

union lawyer named Marla Anne Brown

was logged onto Twitter. Brown had,

in fact, been active online for several

days, and she had been tweeting about

protests, both far and near. Among

Brown’s tweets was one saying “they

should be shooting the looters” and

another responding to MSNBC political

commentator Joe Scarborough, “Omg

Scarborough you’ve hit a new low in stu-

pidity. Let’s go burn your house down

with you in it.”

Brown’s f‌irst rebuke came quickly.

The next day, several longtime legal col-

leagues contacted Brown and expressed

consternation. Media outlets called the

same day. After changing her Twitter bio

and posting several apologetic tweets,

Brown deleted her account altogether.

Lawyers for the State Bar of California

charged Brown with professional mis-

conduct based on her Twitter activity,

including a count of “moral turpitude

Lawyer Who Rage-Tweeted BLM

Protests Avoids Discipline

by directing others to commit acts of

violence.” Brown’s defense centered on

the First Amendment. As Brown saw it,

her tweets, however ill-advised, were

“rhetoric used to express her feelings

about the events unfolding around her.”

As a result, Brown insisted, those tweets

could not “form the basis for profes-

sional discipline.”

The state bar court agreed and dis-

missed all counts against Brown. The bar

court began with a simple statement of

First Amendment protection: the First

Amendment’s broad protections apply to

“all citizens, including lawyers,” and cover

“even blatantly ‘oensive or disagree-

able’ speech.” Invoking Brandenburg v.

Ohio, however, the bar court recognized

that speech advocating for the use of

force may lose protection, at least when

it is “directed to inciting or producing

imminent lawless action and is likely to

incite or produce such action.”

The bar court took pains to note that

Brown’s tweets were “unbecoming of

an attorney.” But the bar court found

that because those tweets were “pure

speech … otherwise protected by the

First Amendment,” they would lose that

protection only if bar counsel could

show that Brown intended to “incite

imminent lawless action,” that Brown’s

tweets “were likely to be heard by an

audience that would understand her

intent,” and that “such imminent lawless

action was likely to occur as a result of

her tweets.” In the end, the bar court

concluded that bar counsel had not

made any of those showings, and the

disciplinary case against Brown failed

as a result.

The burden of proof may have made

all the dierence. “[Bar counsel] had

a very high evidentiary bar to over-

come,” oers John M. Barkett, Miami,

FL, the ABA Litigation Section’s liaison

to the ABA Standing Committee on

Ethics and Professional Responsibility.

Barkett adds that Brown’s “conciliatory

and apologetic” attitude and the First

Amendment’s coverage of “even odious

speech make it dicult to question the

outcome.”

While Brown’s tweets were charac-

terized as being “communicated in her

capacity as a private citizen,” attorneys

should not rely on that distinction in

their day-to-day communications. “We

never take o an ‘attorney hat’ and

put on a ‘private citizen hat,’” advises

Jeanne M. Huey, Garland, TX, Co-Chair

of the Litigation Section’s Ethics &

Professionalism Committee. “We are

trained to think, we get paid to think,

and we should never rely on the excuse

that we weren’t thinking.”

The fact that Brown escaped dis-

cipline does not mean she emerged

unscathed. “Brown regretted her tweets.

But she had to go through a hearing

because of them and received terrible

publicity about them,” Barkett observes.

“That should be a lesson to all lawyers to

think before pushing the ‘send’ button

when you are in an emotionally angry

state.”

Huey agrees that lawyers should

weigh the risks carefully before making

public statements they may later regret.

“You’re a lawyer all the time,” Huey cau-

tions. “Are you entitled to your opinion?

You absolutely are. But you’re rolling

the dice that you may face a disciplinary

grievance. Why take that chance?”

By C. Michael J udd, Litigation N ews Associate Editor

SPRING 20 25 • VOL. 50 NO. 3

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D

Published in Litigation News Volu me 50, Number 3, Sprin g 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Thi s information or an y portion there of may not be copied or

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