Todd Kincannon is a performance artist working in the medium of outrage — his own, and that of easily gulled critics. Surely you've heard of him. Perhaps you noticed him the time he got Salon in a tizzy over his obnoxious tweets about Wendy Davis, or the time he agitated the Huffington Post with his grotesque tweets about Trayvon Martin, or the time he enraged Daily Kos (and, for that matter, nearly everyone else) by saying transgendered people should be put in camps. Todd Kincannon would like to be Ann Coulter if he grows up, but lacks the subtle charm. Like Coulter — or like a dilatory burglar who only robs the homes of people who leave their doors unlocked — Kincannon relies on people agreeing to be outraged by someone whose purpose is outraging them for lulz, political advantage, and profit.
Now Kincannon, an attorney, claims he is being censored by South Carolina attorney discipline authorities. He's filed what I will very generously describe as a federal lawsuit over it.
Kincannon announced the lawsuit in an email to people who had pre-purchased his upcoming book entitled "Useless Idiots: The Proper Care and Feeding of Liberals." Apparently it's a think piece. Anyway, in his email, Kincannon (in addition to explicitly suggesting "talking points" to his readers) asserts that South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have been investigating him for two years because of his speech on social and political issues. And he says it's gotten worse:
The reason for my silence about this matter until now is that I truly thought they would come to their senses about all of this. In fact, they indicated to me more than once that they would not punish me for political or religious commentary that was not to their liking, after initially demanding that I stop saying anything offensive on Twitter. (That was why I briefly stopped using profanity on Twitter in late 2012, in case you were wondering what that was all about.)
However, in early June, just as I was preparing to send out my book, I received an unexpected notice from the South Carolina Office of Disciplinary Counsel that the investigation was going to continue because of comments I made on Twitter regarding a left wing political activist named Col. Morris Davis, a frequent guest on MSNBC. (I have no indication that Col. Davis has anything to do with this—it appears a supporter of his filed a bar complaint on me, the seventh or eighth complaint filed on me in recent times.)
I've confirmed through PACER that Kincannon has, in fact, filed a federal lawsuit in the District of South Carolina. He's sued the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel, as well as individuals apparently associated with the investigation of him.
The complaint does not read like the work of a lawyer, at least not a competent one. It reads like a press release or a blog post, or perhaps the work of a federal prisoner. It doesn't have any of the elements you would expect in a complaint, like jurisdictional allegations or clear causes of action or even specific identification of the parties. Moreover, the complaint is very conspicuously vague; it does not say with any specificity which disciplinary authorities said exactly what, or when. I recognize it is fashionable to say that legalese is bad and plain speech is good, but there are things you ought to put in your complaint if you don't want it dismissed and you want it to be taken seriously. Todd Kincannon likes to call himself "the Honey Badger of politics," thus bolstering his reputation by reference to an internet meme briefly popular in 2011, after Sad Keanu but before that awful "Call Me Maybe" thing. But though you can go through life like Honey Badger not giving a shit, you can't litigate in federal court that way.
One line suggests that Kincannon might have been rushed to file the lawsuit because he thinks the statute of limitations is running out, and that he will amend the complaint. Nevertheless, it's not something I would file under my name in any court. It's the sort of thing I'd expect from, say, Crystal Cox.
Have South Carolina attorney discipline authorities actually attempted to censor Todd Kincannon's political speech? I don't know. His odd vagueness makes me skeptical. I would expect any First Amendment complaint to include specific details, like quotes from the threatening communications. But there's no question that state bar authorities across America have attempted to use the disciplinary system to censor speech. State bars have gone after lawyers based on claims that their blog posts constituted regulated advertising, pursued lawyers for criticizing judges in private emails or in public, and attempted to bar attorney advertising entirely. It would not surprise me to learn that authorities misused their power to limit speech they don't like. That's what authorities do. But if Kincannon wants to convince anyone but his sycophants — let alone survive a motion to dismiss — he's going to have to be much more specific.
Todd Kincannon doesn't strike me as a particularly convincing free speech hero. He's the sort who blusters that a soldier who voices an incorrect views about war ought to come home in a body bag. But we rarely need the First Amendment to protect likeable people saying nice things. We need it to protect unlikable assholes, like Kinncannon. If South Carolina authorities have tried to silence him by threatening to discipline him for his speech, I hope that he kicks their asses. His trolling is clearly protected by the First Amendment. It's not a close call.
But for pity's sake stop feeding him.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016