The Volokh Conspiracy - Posing for a Playboy Video and a Would-Be Lawyer's "Character and Moral Fitness" Evaluation:

A reader pointed me to this story:

A Brooklyn law student who shed her briefs for a Playboy TV series may have to kiss off her career after the sexy video made its way into e-mail in-boxes all over the city....

The brainy blond with Ivy League credentials was looking for a lark last July when she answered a Craigslist ad for women to appear in the Playboy TV series "Naked Happy Girls."

The episode, called "Rock Star and the Lawyer," aired in January -- and was barely noticed.

But in the past three weeks, a 45-second clip spread on the Internet among students and some faculty at almost every New York law school....

If she applies for the New York State Bar this year, [the student] could face tough questions from the Committee on Character and Fitness, which examines the personal character of future lawyers.

"It may have an effect. It's a possibility in the worst-case scenario that the person does not get admitted," a committee representative said....

I would surely not advise would-be lawyers -- or almost anyone who doesn't really really need the money -- to pose naked in Playboy TV series. Rightly or wrongly, such behavior may make employers and clients think the less of you.

This having been said, it 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 (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity).

The government has been historically granted some extra latitude when it comes to licensing lawyers. Consider the controversial Illinois decision denying racist Matthew Hale bar membership based chiefly on his racism, see In re Hale, 723 N.E.2d 206 (Ill. 1999), or the Supreme Court decisions allowing exclusion of those who refuse to swear or affirm that they will support the Constitution of the United States (and that of the relevant state), see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971). Lawyer speech may also be restricted in situations where citizen speech may not be, see Gentile v. State Bar, 501 U.S. 1030 (1991). 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.

I should note that I called up the Committee on Character and Fitness, to check whether the quote accurately represented the Committee's view; the person I spoke to said he couldn't comment on the subject. So it's possible that the Daily News misunderstood the matter, or that their source misspoke -- I much hope that this is so. But if the bar does try to exclude the applicant based on her participation in the making of a constitutionally protected video, that would be a pretty clear First Amendment violation.

And I say that as a Penn & Teller-certified expert on naked breast law.

	[Eugene Volokh, April 12, 2007 at 4:27pm] Trackbacks Posing for a Playboy Video and a Would-Be Lawyer's "Character and Moral Fitness" Evaluation: A reader pointed me to this story: A Brooklyn law student who shed her briefs for a Playboy TV series may have to kiss off her career after the sexy video made its way into e-mail in-boxes all over the city.... The brainy blond with Ivy League credentials was looking for a lark last July when she answered a Craigslist ad for women to appear in the Playboy TV series "Naked Happy Girls." The episode, called "Rock Star and the Lawyer," aired in January -- and was barely noticed. But in the past three weeks, a 45-second clip spread on the Internet among students and some faculty at almost every New York law school.... If she applies for the New York State Bar this year, [the student] could face tough questions from the Committee on Character and Fitness, which examines the personal character of future lawyers. "It may have an effect. It's a possibility in the worst-case scenario that the person does not get admitted," a committee representative said.... I would surely not advise would-be lawyers -- or almost anyone who doesn't really really need the money -- to pose naked in Playboy TV series. Rightly or wrongly, such behavior may make employers and clients think the less of you. This having been said, it 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 (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity). The government has been historically granted some extra latitude when it comes to licensing lawyers. Consider the controversial Illinois decision denying racist Matthew Hale bar membership based chiefly on his racism, see In re Hale, 723 N.E.2d 206 (Ill. 1999), or the Supreme Court decisions allowing exclusion of those who refuse to swear or affirm that they will support the Constitution of the United States (and that of the relevant state), see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971). Lawyer speech may also be restricted in situations where citizen speech may not be, see Gentile v. State Bar, 501 U.S. 1030 (1991). 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. I should note that I called up the Committee on Character and Fitness, to check whether the quote accurately represented the Committee's view; the person I spoke to said he couldn't comment on the subject. So it's possible that the Daily News misunderstood the matter, or that their source misspoke -- I much hope that this is so. But if the bar does try to exclude the applicant based on her participation in the making of a constitutionally protected video, that would be a pretty clear First Amendment violation. And I say that as a Penn & Teller-certified expert on naked breast law.