Boehner Prohibits Law Firm Employees From Advocating for DOMA’s Repeal

Jim Burroway

April 21st, 2011

Chris Geidner, the Metro Weekly’s legal eagle, has been pouring through the contract signed by House Speaker John Boehner (R-OH) and the law firm of King & Spalding, who he contracted to defend the Defense of Marriage Act in Federal court. Geidner found a clause which appears to prohibit all of King & Spalding’s employees, including non-lawyers, from advocating for the Respect for Marriage Act, a bill which would repeal DOMA:

The paragraph in question states that “partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”

Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.

Jon Davidson, the legal director for Lambda Legal, told Metro Weekly that the provision might be illegal in California and other states, and would expose King & Spalding to civil liability. This provision appears to bar people from legitimate activities unrelated to their work at the law firm.

King & Spalding is headquartered in Atlanta. Local LGBT advocates express disappointment over King & Spalding’s contract with Boehner. They note that King & Spalding have donated money to the Stonewall Bar Association, promotes its support for the ACLU’s LGBT and AIDS project, and has provided some pro bono work in unspecified cases in support of LGBT issues.


April 21st, 2011

Hmmm? Boehner contracts the House without consulting Democrats, using Un-Budgeted Federal Funds to forward a biased agenda.


April 21st, 2011

Jon Davidson, the legal director for Lambda Legal, told Metro Weekly that the provision might be illegal in California and other states, and would expose King & Spalding to civil liability.

I’d have thought there were more obvious issues with Federal law – the First Amendment, for starters.


April 21st, 2011

That’s a common misconception about the First Amendment. The First Amendment only applies to government intrusions on speech — it doesn’t forbid private entities from placing speech requirements upon their employees or members.

Priya Lynn

April 21st, 2011

But Chris, isn’t the government’s drafting of that contract government intrusion on speech?


April 21st, 2011

So when the House of Representatives requires that a contractor’s staff be denied free speech on a specific issue, is it acting as a section of the federal government or as a private entity?

Timothy Kincaid

April 21st, 2011

This is not exactly surprising. The primary value in the advocacy of partners and employees of King and Spaulding would be in direct relation to the case. In other words, no one would care what they had to say if Clement weren’t on the case.

So, while I am not familiar with whether this is a common clause, it’s not one that I would find unreasonable. Any advocacy – either for or against – reflects on the official representatives of the case and distracts from their duties.

In fact, I would suspect that law firm policies generally prohibit employees/associates/partners from any advocacy on ANY case in which they are engaged. (Can you imagine your reaction if you hired a lawfirm to represent you in a suit against your neighbor and then found that one of the employees was working pro-bono against you?)

I would not be shocked to find that Boies, Schiller & Flexner has a policy, contract, etc. prohibiting employees from advocacy in favor of Prop 8.

Priya Lynn

April 21st, 2011

Yes, I don’t think its surprising for a law firm to require its employees not to advocate, but the government in letting a contract is acting as employer and I would think it would be illegal for them to prohibit advocacy even though the law firm might.


April 21st, 2011

There was a legal expert on Michaelangelo Signorile’s show on OutQ who stated the prohibition was so broad that it could conceivable prohibit a staff member from serving on the board of an entity like Lambda Legal, for instance, which I do find a problem.

I have no problem with professional bans on advocating for the repeal of DOMA, or even gift-in-kind time/assistance on legal matters, but to limit the off-hours free speech of non-lawyers (does anyone really care that the law firm’s HR manager has to say about DOMA?) is especially egregious.


April 21st, 2011

The clause is there for a specific reason and with great consideration I would presume.


April 26th, 2011

What I found interesting is that the clause says that employees, spouses, and *partners* can’t advocate. So this is the one time Boehner wants to acknowledge that gay people have loving partners? What a douche.

The good news is that King & Spaulding have bid him adieu on this one.

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