Tag Archives: Diversity and Inclusion

Editor’s Corner: Freedom of Speech and Diversity

         By: August Bequai*

        “The most beautiful thing in the world is freedom of speech.”

             -Diogenes (404-323 BC)

Freedom of speech has a long history, which predates the modern democracies by several thousand years. In the West, it can be traced back to Ancient Athens and Republican Rome. Examples of it can also be found in Ancient China, India, Persia, and Egypt. 

Global Evolution                                        

In the West, freedom of speech found support in the writings of Erasmus and Milton. Lord Edward Coke viewed it as an integral part of Parliamentarian freedom, and in 1689 the English Bill of Rights established the right of freedom of speech in Parliament.

 In 1766, the Swedish Parliament enacted one of the first freedom of the press laws in Europe, while the French Republic adopted the Declaration of the Rights of Man and the Citizen in 1789; affirming freedom of speech as the inalienable right of every citizen. In 1791, freedom of speech was adopted in the First Amendment to the U.S. Constitution.

Freedom of speech is currently recognized, though far from always practiced, as an inalienable right under numerous international and regional human rights laws. Among these: Article 19 of the  Universal Declaration of Human Rights; Article 10 of the European Convention on Human Rights;  Article 19 of the International Covenant on Civil and Political Rights; Article 13 of the American Convention on Human Rights; and Article 9 of the African Charter on Human and Peoples Rights. Freedom of speech as a right has come to include not only its content but also its mediums of expression; among these,  the Internet.

U.S. Experience 

In the American colonies, controls on free speech, as in England, frequently focused on religion, morality, and the British monarchy. For example, in 1612, Virginia made it illegal to speak ill of government officials; while  Massachusetts law in 1646 made it illegal to deny the immortality of the soul. 

The  trial of Peter Zenger in 1735, however, was an important turning point in efforts to advance free speech. Charged with seditious libel for criticizing the Governor of New York, his lawyer (Andrew Hamilton) convinced the jury to disregard the charges and acquit his client ( Zenger). The case set an important precedent for the drafters of the U.S. Constitution.

The American Revolution enshrined freedom of speech in the U.S Constitution; while many state constitutions, and numerous federal, state, and local laws would follow. The First Amendment’s constitutional right of free speech, applicable to state and local governments under the  incorporation doctrine, prevents governmental restrictions on speech; but not restrictions imposed by private individuals and businesses, unless these are acting on behalf of the government.

When a speech restriction is challenged in court, it is presumed to be invalid, and the burden falls on the government to convince a court that it is constitutional. There are also federal, state, and local laws that provide additional safeguards-i.e., attempts by employers to limit or  infringe on the political speech of its employees are illegal. The courts have also interpreted the First Amendment to  protect the right to receive information.

The First Amendment, however, is not absolute. The courts have carved out exceptions to it. Among these, the publication of child pornography, false advertising, promoting illegal conduct,  inciting lawless action,  and more. These narrow exceptions aside, U.S. Supreme Court Justice Thurgood Marshall, a staunch First Amendment supporter, summarized it best, “debate on public issues should be uninhibited, robust, and wide-open.” 

Diversity and Free Speech

In October 2005, UNESCO adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. This was done to protect cultural diversity worldwide in the face of the trauma of globalization. Concerns over the same, prompted the United Nations General Assembly in 2012 to declare the World Day for Cultural Diversity for Dialogue and Development. The European Union followed with its own Declaration on Cultural Diversity.

The term “diversity” itself has taken on numerous meanings over the centuries. Some view it as necessary safeguard for “cultural minorities” the world over, against the profound disruptions in their culture and development wrought by the forces of globalization. Others view it as analogous to biodiversity; while still others as a form of cultural protection against the forces of global commercialization. 

Diversity is no stranger to history. One can find written references to it in Ancient Persia,  India, and China. Ptolemaic Egypt had enacted laws that protected its diverse minorities, and the Abbasid Caliphate enshrined diversity in its code of laws. The Mongol Empire was very likely the most diverse in written history.

The Roman Empire, with 13 Emperors of African descent and dozens of others from its Euro-Asian regions, promoted diversity in its legal system and governmental apparatus. Save for its name, the Roman Empire bore little semblance to its predecessor (Republican Rome).  Many of the Sultans of the Ottoman Empire, likewise, promoted diversity and some even came to embody it. The mothers of many of the Sultans came from non-Turkic backgrounds; to name a few: Albanian, Serbian, Bulgarian, and Persian. 

Diversity, however, has also had its failings. The collapse of the Umayyad Caliphate being but one example. Followed by others like the Almohad Caliphate, Mali Empire,  Habsburg Empire, Tsarist Russia, and in our own time, the breakup of the Yugoslav state. When diversity fails, millions often lose their lives; while millions more find themselves displaced from their homelands.

A study of the many diverse nations and empires that have collapsed in the last 4,000 years, reveals that the majority of these all shared one common trait: a disdain for freedom of speech. Autocracy was often the rule of governance. Diverse cultures , races, religions, and languages while often tolerated and even encouraged, fell afoul if they posed a threat to the ruling elite. To paraphrase the old adage:  all people are equal, but some more than others.

Freedom of speech has also met in the last two centuries, with fanatical disdain for it from political dogmatists. Robespierre, Napoleon and Lenin acknowledged the right to free speech, provided it met their dogmatic prism of governance. For diversity to survive and thrive, free speech is a necessity; dogmatic driven movements its anti-matter

In Closing

While lawyers are often vilified and viewed as corrupt tools of the affluent sectors of society; yet, without their assistance and commitment, there would be no freedom of speech. From their ranks have come its champions and guarantors of free speech. The First Amendment of the U.S. Constitution best exemplifies the force that promotes diversity and lawyers are its guardians. Without freedom of speech and lawyers to safeguard it, diversity withers like a flower without water. 

*The opinions expressed are solely those of the Editor and not those of the VSB or the Diversity Conference.

The Fourth Panel: How Many Sexes can Stand Under Title VII’s Umbrella

by Chris Fortier

Diversity Conference Chair Chidi James provides remarks to end the Forum. James Hammerschmidt, Carla Brown, Joseph Martins, and Judge Joanne Alper look on. (Eva Juncker).

“Now that it’s raining more than ever, Know that we still have each other, You can stand under my umbrella” The United States Supreme Court just heard arguments in three employment cases next session: Bostock v. Clayton County, Zarda v. Altitude Express Inc., and EEOC v. R.G. & G.R. The cases range from a civil suit brought by an employee against a governmental body, an employee suing a private company employer, and a regulatory body bringing an action against a closely held business.  The Court will determine the extent to which Title VII’s protections against sexual discrimination extend to protect against sexual orientation discrimination, associational discrimination, and gender stereotyping.  

This panel was moderated by the Honorable Joanne F. Alper, Retired Judge, Circuit Court of Arlington County, and featured  Carla D. Brown, Esq. of Charlson Bredehoft Cohen & Brown, Prof. Joseph J. Martins, Esq. of Liberty University Law School, and James Hammerschmidt, Esq. of Paley Rothman.

Each panelist provided factual background on each of the cases. When asked what case each would advocate, each chose their own. Mr. Hammerschmidt chose the Zarda case as the question is what does sex mean under Title VII? Ms. Bowen chose the Bostock case as Mr. Bostock was doing a great job locally, regionally, and nationally, and that the action of County embarrassed him with the audit and the news coverage of his firing. Professor Martins chose the EEOC case as the questions arose in the case were better suited for Congress to solve that the Courts.  They speculated to the reason of the Supreme Court hearing all the cases together, thinking that they make an aggressive move on the issue. 

Mr. Hammerschmidt pointed to the PriceWaterhouse decision of 1989, where sex discrimination was found when the only woman in the company who was up for partnership was denied.  In the decision, the Court created an analysis to review these decisions. After the plaintiff shows that discrimination took place, a defendant would have to show that if the same decision would have been made if discrimination was not part of the process.  The decision also added “stereotypes based on sex” to the definition of sex in the statute.

The theme that emerged from audience questions was that to only ask questions of applicants that are directly relevant to the job advertised. For example, questions about sexual orientation, though not illegal in Virginia, are highly discouraged, as they do not have a direct nexus to the job advertised. Questions that invite answers on personal lives, such as “tell me about your family (or upbringing),” are risky as it could be seen as inviting an answer that could lead to discrimination.


Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

Justice Powell to Keynote Diversity Conference Forum at UVA

Newly appointed Justice Cleo E. Powell, an alumnus of the University of Virginia School of Law and member of the Diversity Conference of the Virginia State Bar, will return to her alma mater on Thursday, November 10, 2011, as the keynote speaker at a three-day conference on diversity within the legal profession. The conference is sponsored by the Law School’s Center for the Study of Race and Law, the Diversity Conference of the Virginia State Bar, the Asian Pacific American Law Students Association, and the Black Law Students Association.

On Friday the program will open with a welcome by law school dean Paul G. Mahoney, followed by a discussion led by Shawn J. Chen of Cleary Gottlieb on the Value Added by Diversity. Other participants on the Friday program will include Erica Moeser, president of the National Conference of Bar Examiners; W. Scott Street, chair of the Virginia Board of Bar Examiners; Professor Dan R. Ortiz, immediate past chair of the Law School Admission Council; and Peter Pashley, psychometrician of the Law School Admission Council.

Kim M. Keenan, general counsel of the National Association for the Advancement of Colored People will be the keynote dinner speaker on Friday evening.

The Saturday program will open with a panel on the benefits of expanding the pipeline for a diverse profession and will be followed by a panel on the road to firm partnership. Supreme Court Justice S. Bernard Goodwyn will be the keynote luncheon speaker on Saturday. An open forum on best diversity practices developed by law firms, followed by informed discussion and cocktails will conclude the program.

Participants on the Saturday program include G. Michael Pace of Gentry Locke, Rakes and Moore; Michael HuYoung of Barnes and Diehl; Dana T. Weekes of Patton and Boggs; Richard C. “Rip” Sullivan Jr. of Reed Smith; Jacquelyn E. Stone of McGuire Woods; Tyree R. Jones Jr. of Reed Smith, Manuel A. Capsalis, former president of the Virginia State Bar; and Kenneth Imo of Wilmer and Hale.

This program will cover a wide range of issues and improvements desired to make the legal profession representative of the diverse society in which we live.

The conference is being coordinated by Professor Alex M. Johnson of the University of Virginia School of Law.

All members of the bar and law students are invited to this important conference.

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