Bar Journals Censoring Criticism of State Judges

The issue is viewpoint discrimination in state bar journals, but that’s facts without any of the flavor.  Here’s the story –

This past August—meaning in August of 2024—my research dean sent out an invitation to write “a short piece … for the Oklahoma Bar Journal’s April 2025 issue on Constitutional Law.”  I can’t claim to being particularly involved in my state bar; indeed, while I’ve long been a member of the bar in Texas, and then in my later home state of Pennyslvania (now inactive), I never took the time (and money) to be licensed in Oklahoma.  When I first moved to the state in 2011, I did make a few attempts to get involved in local matters—for example, trying to improve the Oklahoma system of civil forfeiture, and then its regulation of drone flight—but I can’t say I found the work sufficiently effective to be personally worthwhile, and so I focused my work elsewhere.

Until July of 2024, that is, when I turned over a new leaf and became a card-carrying member of the Oklahoma state bar.  And I accepted an invitation to serve on the Committee appointed by our relevant high court (more on this in just a bit) to draft uniform jury instructions.  It’s ever time to try and do a little good in one’s local world, I suppose … and here I went!

So, when I received that August invitation to write for the Oklahoma Bar Journal?  You got it.  The ‘new me’ bit.  “I could write something about how Oklahoma lags behind in independent interpretation of its state constitution,” I explained to the Oklahoma Bar Journal rep who was the source of my dean’s invitation, “particularly in regard to protections against unreasonable search and seizure.  It’s a topic about which I’ve written over the decades, and which I’m currently in the midst of reprising for NYU’s Brennan Center.”  Which is, naturally enough, true—one of my very first law review articles, published in 2006, was a fifty-state survey regarding state constitutional interpretation of Fourth Amendment analogs, and I’ve been happy to recently contribute to the Brennan Center’s State Court Report.

The newly Oklahoma-inclined me was chuffed to received kind replies.  From my associate dean—simply because she is one the world’s nicest people—there was this: “You are amazing.  Thank you.  Thank you.”  I of course realized then—as I realize now—that I am not amazing.  Still, it’s nice to hear otherwise from kind people.  From the Bar Journal was this: “What a fascinating subject!  And what a great line: ‘Once a monolith is fractured, more cracks are likely to follow.’  [Kindly quoting a bit I wrote for the Brennan Center.]  I think this would make an excellent topic for the Constitutional Law issue.  Thank you so much for your interest and willingness to contribute. … I look forward to working with you!”

That individual might not generally be as wonderful as my then-associate dean—few are—but, hey, newly-Oklahoma-inclined me appreciated her enthusiasm all the same.

And so I went to work.  And—wonderful plus!—the topic was more interesting than expected.  Oklahoma is one of only two states bifurcating its high courts along the civil/criminal line, and, when it comes to state constitutional search and seizure … Oklahoma’s two high courts disagree!  The Oklahoma Supreme Court interprets the state Fourth Amendment analog to give greater rights than the federal counterpart.  But the Oklahoma Court of Criminal Appeals interprets the state provision in lockstep with the federal.  Bizarre.  So, I completed and turned in my draft:

Attached should be the draft of my article.  It’s quite an interesting area given the split between the Oklahoma Supreme Court and the Court of Criminal Appeals.

I presume there is an editing process in which I get a redline?  Perhaps like you, I am very jealous of my writing, so I will want to review and ponder all changes—including because sometimes if change is beneficial a third construction is ideal.

Thanks for reaching out to the law school; I enjoyed writing this and appreciate the opportunity to have a small role in what is happening (or could happen) in Oklahoma.

Self-evidently, the newly-Oklahoma-inclined me remained pretty pleased about these developments.

I was less pleased, however, when the response was this:

The article will next be submitted to the Board of Editors of the bar journal for review and a vote.  At our next meeting (early January), the Board will either accept, reject, or accept subject to requested changes.

Now, sure, perhaps my ego is too large … but to have an invited contribution rejected by the state bar journal?!  Yikes.  That would be a career low.

Yet it happened.  And while that would be of interest only to me (and maybe my mom would feel a bit bad for me as well … well, no, she really wouldn’t), the reason should be a stunner for nearly everyone:

The board thought the article was interesting and of course well-written.  There was concern, however, about the tone/approach towards the Court of Criminal Appeals.  One of our editors will be contacting you shortly to discuss proposed revisions.

Wtf?!  My “tone/approach towards the Court”?!  Now, some people do say some awful stuff about courts and judges, and so one might understandably assume I must have done the same.  But far from it.  I’ll let the essay speak for itself in that regard.  No, the reason was more sinister—and, since this is a policy of Oklahoma’s mandatory bar/the Oklahoma Supreme Court—the reason strikes me as unconstitutional.  Here’s the follow-up from the Oklahoma Bar Journal when I complained and made clear that they could not print a censored version of my work:

The Oklahoma Bar Journal has a policy of not printing articles directly critical of the Courts in our state.  While the Board had hoped that you would be willing to eliminate those portions that were critical of the Court of Criminal Appeals so that the lawyers in the state could benefit from the article, we respect your choice.

Holy you-know-what, Batman!  A policy of “not printing articles directly critical of the Courts in our state”?!  And remember—this was for an issue dedicated to constitutional law!  Such an editorial policy is therefore as richly ironic as it is terrible idea.  Applied here, it seems explicit viewpoint discrimination in violation of the First Amendment.  (We have a mandatory state bar association in Oklahoma, some recent litigation regarding which can be found here.)  And, again, my essay isn’t directly critical of state courts, making the application of the policy doubly strange.  Besides, what’s the policy even mean?  As a friend asked, “Can one not write about an appellate reversal, because that is ‘directly critical’ of the judge below?”  So, lots of issues—but viewpoint discrimination is certainly the most significant.

All of which makes me curious … do other state bar journals similarly engage in viewpoint censorship?  I hope not, but I’d love to learn.  How uniquely poor are these Oklahoma powers-that-be?