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AT LEAST I DIDN’T SAY THE JUDGE HAD A BANANA FOR A BACKBONE – HOW THE ‘ENFORCED SILENCE’ OF ATTORNEY

CRITICISMS OF THE JUDICARY VIOLATES THE FIRST AMENDMENT

JENNIFER GOELLNITZ1

INTRODUCTION

The Criticism of Judges in America

It is a “prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”2 It should thus come as no surprise to learn that the “the long history of Anglo-American litigation” has commonly witnessed unsuccessful lawyers giving “vent to their disappointment in tavern or press." 3 The criticism of judges and their decisions “probably began the moment that judges first issued decisions that occupants of other branches found disagreeable.”4 A survey of the history of judicial criticisms reveals familiar names on both the receiving and speaking end. For example, Abraham Lincoln declared the Supreme Court’s decision in Dred Scott v. Sandford5 “erroneous,”6 while Senator Charles Sumner chortled that the decision’s author, Chief Justice Roger Taney, would be “hooted down the halls of history.”7 It is easy, of course, to dismiss criticism of the Dred Scott decision and its author as justifiable appraisals of what we now consider a “bad” decision. But famous critics do not reserve their vitriol and venom for only terrible decisions. Two most legendary American jurists, John 1 Member of the Cleveland State Law Review and J.D. candidate, Cleveland-Marshall College of Law, 2005. I would like to thank my advisor, Professor Lloyd Snyder for commenting on my drafts of this Note and for suggesting the general topic. 2 Bridges v. California, 314 U.S. 252, 270 (1940).

3 United States v. Morgan, 313 U.S. 409, 421 (1941). See also John C. Yoo, Criticizing Judges, 1 GREEN BAG 2d 277, 281 (1998) (noting judicial “criticism might be unusually intense today, but it is by no means new. In fact, recent events involving the judiciary do not come anywhere near the level of controversy that has erupted in the past over the role of the Court”).

4 Hon. Michael Hawkins, Dining with the Dogs: Reflections on Criticisms of Judges, 47 OHIO ST. L.J. 1353, 1355 (1996). 5 60 U.S. 393 (1857). 6 Hawkins, supra note 4, at 1362.

7 Id. at 1357. See also Justice Scalia’s opinion that Court was “covered with dishonor and deprived of legitimacy” by Dred Scott. Planned Parenthood v. Casey, 505 U.S. 833, 998 (1992) (concurring in part, dissenting in part).

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Marshall and Oliver Wendell Holmes, were on the receiving end of criticisms from three highly respected presidents. Marshall, the “greatest Chief Justice in our history,” attracted the scorn of both Thomas Jefferson and Andrew Jackson; Jefferson claimed that Marshall treated the Constitution as a “mere thing of wax,” while Jackson infamously thumbed his nose at the Court and made the notorious (and probably most famous judicial “criticism” in American history) proclamation: “John Marshall has made his decision: --now let him enforce it.”8 Oliver Wendell Holmes endured the irate declarations of Theodore Roosevelt who, displeased with a critical dissent authored by Holmes, announced he could “carve out of a banana a judge with more backbone.”9

While judges today can take comfort from the fact that today’s critics “normally not as colorful or as sharp of tongue as Horace Greeley or Teddy Roosevelt,”10 nevertheless judicial criticism still flourishes. As one commentator put it, “we seem to live in an era when the criticism of judges is as common as Fantasy Baseball.”11 Justices on the Supreme Court today even occasionally disparage each other; Justice Scalia has even called Justice O’Connor’s reasoning “irrational.”12 Judges attacking judges is increasingly common; it is fashionable today “for the author of the majority opinion, usually in footnotes, to attack the dissenting opinion (and sometimes even a concurring opinion).”13

In spite of the “long tradition of outspoken criticism by the bar” and public officials of judges,14 the Republic has endured. Amazingly, the public seems to have retained its confidence in the legal system despite criticisms of judicial officers; the public has not resorted to ignoring court judgments and it has certainly not turned

8 Hawkins, supra note 4, at 1357. 9 Id. at 1360. Roosevelt also declared Holmes a “ward-heeler who didn’t deliver the goods.” Id. 10 Id. at 1364.

11 Hon. Michael Daly Hawkins, Mr. Madison, Meet the Modern Judiciary & Its Critics, 24 OKLA. CITY

U.L. REV. 303. 306 (1999).

12 See Webster v. Reproductive Health Servs. 492 U.S. 590, 532 (1989) (Scalia, J., concurring). See also William G. Ross, Essay, Civility Among Judges: Charting the Bounds of Proper Criticism by Judges of Other Judges, 51 FLA. L. REV. 957 (1999). Ross notes that issues “involving the civility of judges toward one another usually arise out of critical comments that judges make about other judges. Such criticism takes many forms, including 1) comments in written opinions of judges who serve on multi-judge panels about the majority, concurring, or dissenting opinions; 2) comments in written opinions of higher courts about the decisions or opinions of lower courts; 3) public comments about other individual judges or their decisions; 4) public comments about the courts and the judiciary that are not directed against specific judges; and 5) private comments made about other judges or their decisions, collectively or individually.” 13 RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 232-33 (1985).

14 Monroe Freedman, Threat to Judicial Independence by Criticism of Judges – Proposed Solution to the Real Problem, 25 HOFSTRA L. REV. 703 (1997).

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the streets into nineteenth century Tombstone. Nevertheless, it has become increasingly common for courts to silence a particular class of citizens from making criticisms of judges: lawyers. Despite possessing unique qualifications that make their criticisms particularly of interest to the public, lawyers are regulated from criticizing judges because such criticisms, supposedly, undermine public confidence, interfere with judicial independence, and cause a substantial interference with the smooth and efficient administration of justice. Additionally, as members of a profession, lawyers are admonished that they are supposed to behave as gentlemen and ladies. But wait, you say: What about the First Amendment? That question is the topic of this Note.

A. Scope and Purpose of this Note

This Note explores the interesting question of whether professional responsibility rules that restrict attorney criticisms of judges violate the First Amendment.15 It thus attempts to illuminate the dark intersection between ethical rules governing the legal profession and the fundamental freedoms guaranteed under the First Amendment. While the issue of attorney speech is obviously of interest to attorneys and law students, it should also be of interest to the public for the state not only affects the rights of the speaker when the it censors speech – the public in general is also deprived of the content of the speech.

A brief introduction to the competing interests may be helpful. While the bar and judges argue that restriction of criticisms are necessary to protect such ideals as public confidence and judicial independence,16 advocates of free speech contend that attorney criticisms are a valuable form of political speech; after all, while most judges are honest, sometimes there have “been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity.”17 Defenders of attorney free

15 Porter, 766 P.2d at 966. See also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995). The First Amendment states that Congress may make no law restricting free speech. U.S. CONST. amend. I. It applies to the action of the states through the Fourteenth Amendment’s due process and liberty clauses. See e.g., Schneider v. State, 308 U.S. 147, 160 (1939); Gitlow v. New York, 268 U.S. 652, 666 (1925).

16 See e.g., Matter of Westfall, 808 S.W.2d 829 (1991). Westfall involved a Missouri prosecutor disbarred for conduct prejudicial to administration of justice and adversely effecting fitness to practice law for calling the judge in a case he was prosecuting illogical and “a little bit less than honest.”

17 Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting). See also Monroe Freedman, When Judges Tamper with the Evidence, LEGAL TIMES, Nov. 19, 1990, at 22 (discussing dishonest judicial opinions); Michael Kirby, Attacks on Judges: A Universal Phenomenon, at

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speech further maintain that “where the protections of the Constitution conflict with the efficiency of a system to ensure professional conduct, it is the Constitution that must prevail and the system that must be modified to conform,”18 while the bar counters with the allegation that attorneys do not have the same rights as other citizens. Thus, an attorney’s criticism of a judge results in a head-on collision between the strong interests of the state and the First Amendment’s fundamental guarantee of free speech.

The author alluded earlier to the fact that she hoped this Note would illuminate the darkened intersection between ethical rules and the First Amendment. I refer to this as a darkened intersection because the proper assessment on the constitutional scale between the right of the attorney and the interest of the state is particularly problematic not only because the competing interests are so compelling but also because there is not much in the way of precedent to draw from -- the Supreme Court, the authority on the First Amendment, rarely deals with attorney speech issues outside of the realm of expanding protection of attorney advertising and solicitation.19 Although dicta establishes that lawyers may criticize the state of the law20 and the Court has held that a “state may not, under the guise of prohibiting professional misconduct, ignore constitutional rights,”21 it has never actually provided on-point guidance as to how courts should analyze attorney criticisms of judicial officials.22 The result of this lack of leadership by the Court has been considerable variation in decisions from state to state23 with a “disturbing number of decisions show[ing] open hostility

www.hcourt.gov.au/speeches/kirbyj/kirbyj_maui.htm (last visited January 15, 2004) (noting “principle of public justice and open courts is designed constantly to submit the judges themselves to public scrutiny. Incompetent, dilatory, ill-tempered, prejudiced judges may deserve to be exposed so long as the object is truth not just entertainment”). 18 Polk v. State Bar of Texas, 374 F. Supp. 784, 788 (N.D. Texas 1980).

19 The Court does not seem to want to touch the issue of the speech restrictions imposed by professional responsibility rules. For example, in a recent case striking down a judicial candidate speech restriction, the Court cautioned that this “case does not present the question whether a State may restrict the speech of judges because they are judges -- for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates.” Republican Party v. White, 536 U.S. 765, 796 (2002) (Kennedy, J., concurring).

20 In re Sawyer states “[w]e start with the proposition that lawyers are free to criticise the state of the law.” 360 U.S. 622, 636 (1959). 21 NAACP v. Button, 371 U.S. 415, 439 (1963).

22 See ANNOTATED MODEL RULES OF PROF’L CONDUCT R. 8.2, at 543. The Court has considered several cases involving criticisms of law and judges, but never actually decided the First Amendment issues. See Sawyer, 360 U.S. 622; In re Snyder, 472 U.S. 634 (1985).

23 For example, compare the more speech protective decision and reasoning in Porter, 766 P.2d 958 with Dist. Office of Disciplinary Counsel v. Surrick, 749 A.2d 441 (Pa. 2000). Cases even within the

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toward claims of First Amendment rights for strongly worded lawyer criticism of judges.”24 Federal and states courts have disciplined attorneys for opinions, for false factual statements made in court documents, and for generalized criticisms made to the public.25 While, in certain instances it is not surprising that the attorney was punished for his or her brashness and outrageous behavior,26 the hostility shown towards seemingly innocuous criticisms or opinions is unsettling and even alarming. For instance, a lawyer was punished for voicing a strong opinion about a politically charged issue and another was disciplined for suggesting an elected judge’s decision was politically motivated.27

This Note makes the case for why the silence enforced by professional responsibility rules that restrict attorney criticisms of judges outside of pending litigation probably violate the First Amendment,28 although it attempts to strike a compromise between the rights of the attorney and the state. This Note limits its scope to criticisms made outside pending litigation because the state interests in silencing attorney speech during litigation and the state interests in silencing attorney speech outside litigation differ significantly. It does not deal specifically with the rules of any particular jurisdiction, but rather treats attorney speech regulations generally.

same state may differ. Compare In re Holtzman, 577 N.E. 2d 30, 43 (N.Y. 1991) with Justices of Appellate Div., First Dep't v. Erdmann, 301 N.E.2d 426 (N.Y. 1973).

24 Del O’Roark, Telling it Like It Is v. Telling it Like It Ain’t, KENTUCKY BAR ASS’N. BENCH AND BAR, September 1998, <http://www.lmick.com/bbsept98.htm> (quoting Charles Wolfram).

25 See e.g., Holtzman, 577 N.E. 2d at 43 (punishing attorney for false statement); In re Raggio, 487 P.2d 499 (Nev. 1971) (punishing attorney for opinion). 26 See e.g., Kentucky Bar Ass'n v. Waller, 929 S.W.2d 181 (Ky. 1996).

27 In re Raggio, 487 P.2d at 500. Raggio involved a district attorney upset that the death penalty was overturned; he stated the decision was “most shocking, certainly to this office, and I'm sure to anyone who has dealt with similar problems" and “I feel that it's an example of judicial legislation at its very worst … [i]n my opinion this is the most shocking and outrageous decision in the history of the Supreme Court of this State.” In Topp v. Idaho State Bar, 925 P.2d 1113 (Idaho 1996), an attorney stated on a radio show he believed an elected judge decided a case differently than an unelected judge because the elected judge was worried about political consequences. The court found this insinuated Topp knew special facts about the cases and his contention was punishable under Idaho’s version of Model Rule 8.2(a).

28 This Note does not deal with criticisms made during pending litigation because different rules apply to pending trials and different state interests are at stake, such as the criticism interfering with the right to fair trial. See Gentile v. Nevada State Bar, 501 U.S. 1030 (1991) (determining proper balance between Sixth Amendment and First Amendment rights). See also Frederick Schauer, The Speech of Law and the Law of Speech, 49 ARK. L. REV. 687, 688 (1997) (discussing free speech and fair trials). Criticisms of judges in court documents (such as briefs) are probably best considered under “time, place, manner.”

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This Note breaks down the Constitutional analysis of attorney judicial criticisms into several sections. The first requirement under the First Amendment is to find state action. Part 1-A of this Note deals with the question of state action by discussing how state imposed professional responsibility rules restrict judicial criticisms and attorney speech. Part 1-B of this Note then briefly addresses the question, before turning to the “merits,” of whether professional responsibility rules are unconstitutionally vague. The second requirement in a First Amendment analysis is determination of the proper level of review that the Court should apply in considering the state’s restriction of speech. Part 1-C of this Note discusses the reasons why strict scrutiny is the proper level of review for regulations of attorney criticisms.29 Finally, First Amendment analysis requires application of the appropriate test or level of review. Part 2-A of this Note defines the strict scrutiny test; it is essentially a two-pronged level of review requiring the state prove it has a compelling interest in suppression of speech and that the abridgment of speech is accomplished using the least restrictive means. Part 2-B explains and criticizes the state’s compelling interests in suppression of attorney speech while part 2-C analyzes the competing interests of the attorney and the state and suggests how the Court should balance the interests. Finally, part three of this Note considers, assuming that the state has proved a compelling interest, how to apply the least restrictive means prong. Part 3-A discusses opinions involving substantial interference with the administration of justice. Part 3-B discusses false criticisms of judges and wades into the controversy over the proper standard for determining an attorney’s “state of mind” when a criticism is false.

I. STATE REGULATION OF ATTORNEY CRITICISMS AND THE REASONS STRICT

SCRUTINY SHOULD APPLY

A. State Action: Professional Responsibility Rules Restricting Attorney Speech

In America, the individual states are responsible for regulating the legal

profession.30 Consequently, the particular rules affecting an attorney’s ability to criticize a judicial officer depend on the state in which the lawyer practices.31

29 An example of the “strict scrutiny” test is outlined in Elrod v. Burns, 427 U.S. 347 (1976). 30 See generally Symposium, The Future of State Supreme Courts as Institutions in Law: Commentary: State Supreme Courts as Regulators of the Profession, 72 NOTRE DAME L. REV. 1155, 1177 (1997).

31 Each state promulgates its own rules and regulations for the legal profession. These regulations are usually administered by the state’s highest court in accordance with the state constitution. The legal profession is not subject to one set of rules formulated by an organization such as the American

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Nevertheless, some generalizations about rules that restrict attorney criticisms of judges are possible. The rules governing attorney speech are best understood when divided into two classes: specific speech restrictions and broader, non-speech specific regulations the bar may choose to utilize to punish speech. Regulations dealing specifically with speech usually discipline attorneys for false criticisms of judicial officers. The best example of this sort of regulation is the American Bar Association’s Model Rules of Professional Responsibility 8.2(a). Rule 8.2(a) prohibits lawyers from making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or candidate for election or appointment to judicial or legal office.”32 Model Rule 8.2(a), and rules that are similar to it, are relatively clear – they forbid an attorney from issuing a knowing or recklessly false statement of fact impugning a judicial officer.33 But broader, non-speech specific rules may also be used to punish attorneys for criticizing judicial figures. These rules include prohibitions on conduct prejudicial to the administration of justice34 or conduct adversely reflecting on the lawyer’s fitness to practice.35 What type of speech constitutes conduct adversely reflecting upon fitness to practice or conduct that is prejudicial to the administration of justice is unclear.

What is obvious is that whether regulations clearly forbid certain speech or are broad non-speech tenets, the rules present a First Amendment conundrum because they represent a significant governmental regulation of speech.36 Simply, the rules interfere with speech by deterring attorneys from the articulation of critical statements out of fear of punishment.37 The attorney that dares to criticize a

Bar Association. However, the ABA in particular has been influential in producing rules for the profession. Most states follow some form of either the ABA Model Rules of Professional Conduct or the Model Rules of Professional Responsibility. “[R]egulation of the legal profession by anything like a systematic body of law was forthcoming only after 1970. That year saw the promulgation by the ABA of the Model Code of Professional Responsibility (Code).” Id. This Note does not specific rules on attorney speech per se, but deals with the speech restrictions more broadly. 32 MODEL RULES OF PROF’L CONDUCT R. 8.2(a) (2002).

33 As will be discussed later in this Note, states differ on whether an attorney’s “state of mind” should be judged using a subjective or objective, reasonable lawyer standard. Compare Porter, 766 P.2d 958 (subjective) with Fla. Bar v. Ray, 797 So.2d 556 (Fla. 2001) (objective). 34 MODEL RULES OF PROF’L CONDUCT R. 8.4(d) (2002).

35 MODEL CODE OF PROF’L RESPONSIBILITY DR 1-102 (2002). See also In re Dinhofer, 257 N.E. 2d 326 (N.Y. 1999) (holding derogatory and undignified comments made to judge in telephone conference constituted conduct adversely effecting the attorney’s fitness to practice law). 36 See e.g., Porter, 766 P.2d at 967.

37 See New York Times Co. v. Sullivan, 376 U.S. 254, 300 (1964) (adopting actual malice because “[i]f individual citizens may be held liable in damages for strong words, which a jury finds false and

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judge faces harsh, quasi-criminal penalties including public reprimands, suspensions, and even disbarment administered at the hands of the state disciplinary board or court.38

B. Problems Before Reaching the Merits: Vagueness

The first hurdle the state has in defending its speech restrictions, even before

reaching the merits, is that the broad, non-speech specific rules possibly can be challenged under the First Amendment vagueness principles. The vagueness doctrine draws mainly upon procedural due process and requirements of adequate notice.39 Vagueness can function like standing: if a law is unconstitutionally too vague or broad, there is no need to look to the merits. A law is considered unconstitutionally vague where persons of “common intelligence must necessarily guess at is meaning and differ as to its application.”40 A vague rule causes citizens “to steer far wider of the unlawful zone” than if the “boundaries of the forbidden areas were clearly marked” causing them to “restrict their conduct to that which is unquestionably safe.”41 The deterrence factor of discipline is compounded by the exercise of these vague rules because uncertainty over their application leads attorneys to fear saying anything even vaguely resembling a criticism;42 the great

maliciously motivated, there can be little doubt that public debate and advocacy will be constrained.”); Sandra M. Molley, Note, Restrictions on Attorney Criticism of the Judiciary: Denial of First Amendment Rights, 56 NOTRE DAME LAWYER 489, 490 (1981).

38 See. Molley, supra note 25, at 490 (noting courts traditionally impose harsh penalties like suspension, public reprimand, and disbarment). See also generally W.E. Shipley, Annotation, Attorney Criticism of Judicial Acts as Grounds of Disciplinary Action, 12 A.L.R. 3D 1408 (1967). 39 See Bagget, 377 U.S. 360. 40 Connally v. General Construction Co., 269 U.S. 385 (1926). 41 Bagget v. Bullitt, 377 U.S. 360 (1964) (invalidating law requiring teachers to take a loyalty oath). Snyder, 472 U.S at 644 argues in defense of broad rules like conduct unbecoming a member of the bar that “[r]ead in light of the traditional duties imposed on an attorney, it is clear that "conduct unbecoming a member of the bar" is conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and "the lore of the profession," as embodied in codes of professional conduct.” However, even considering those factors, the confusion as to what constitutes a punishable criticism does not provide attorneys with much guidance other than to avoid making any criticism that might anger the bar.

42 For example of inconsistency, compare Topp, 925 P.2d 1113 with Justice Scalia’s dissenting opinion in Romer v. Evans, 517 U.S. 620, 653 (1996) (suggesting “[t]oday's opinion has no foundation in American constitutional law, and barely pretends to” and was “not a judicial judgment, but of political will”). See also generally Edward McGlynn Gaffney, Jr., Importance of Dissent and the Imperative of Judicial Civility, 28 VAL. U. L. REV. 583, 641-42 (1994).

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power wielded by the bar means disfavored criticisms can easily be construed, for example, as adversely reflecting on lawyer’s fitness to practice.43

C. Why Strict Scrutiny Applies at the Level of Review

It is safe to assume that professional responsibility rules trigger the First

Amendment – the rules are a governmental interference with speech. But, of course, just because a law prompts a First Amendment concern does not automatically mean it is unconstitutional; sometimes curtailment of even the most fundamental rights is legitimate when in the best interests of society.44 The First Amendment is “to be taken as a command of the broadest scope that explicit language read in the context a liberty-loving society will allow.”45 It does not provide an absolute shield for all forms of speech and expression, however, and the Supreme Court does not apply the same level of scrutiny to all regulations effecting speech or expression.46 Where a regulation only involves an incidental effect on speech or conduct the Court generally subjects the law to a test of reasonableness or to “intermediate scrutiny.”47 But, where there is an appreciable impact on a fundamental right to speech, the Court applies strict scrutiny.48 This Note contends that the strict scrutiny level of review is appropriate for attorney criticisms of judges because the rules have an appreciable impact on speech involving criticism of public officials and because the restrictions aim at excising certain content.

1. Criticisms of Judges as Political Speech

Judges are public officials and officers of the government; in almost all states,

they are also subject to popular elections.49 Historically, the First Amendment’s primary purpose has been the safeguarding of free discussion about public affairs and officials.50 While we can quarrel and hypothesize about what the Founders 43 Molley, supra note 15, at 490. 44 See Adderley v. Florida, 385 U.S. 39 (1966); Cox v. Louisiana, 379 U.S. 536 (1965). 45 Bridges, 314 U.S. at 289. 46 See e.g , Sullivan, 376 U.S. at 270-71. 47 See e.g., United States v. O’Brien, 391 U.S. 367 (1968).

48 The level of scrutiny a regulation is subject to is important because it usually determines whether the regulation will be struck down. Regulations considered under strict scrutiny are nearly always struck down by the Court.

49 Thirty-nine states use elections to select judicial officers. AMERICAN JUDICATURE SOCIETY, JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS (Apr. 2002).

50 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980). See also Garrison v. Louisiana, 379 U.S. 64 (1964); RESTATEMENT (THIRD) OF LAW GOVERNING LAW SECTION 114, A Lawyer's

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might think of the extension of the First Amendment to pornography or certain forms of expression, it was apparent that a “broad consensus” existed among that the First Amendment outlawed the so-called seditious libel laws.51 These laws, such as the vastly unpopular 1798 Alien and Sedition Act, made it a crime to issue any false, scandalous, or malicious statement against the government or its officers.52 Many of the Founders recognized the 1798 Act was inconsistent with the First Amendment because it imposed a considerable restraint on citizens’ capacity to comment on government.53 Latching onto the idea of seditious libel laws, some commentators have suggested that professional responsibility rules restricting attorneys from criticisms of the judiciary are a form of disciplinary seditious libel, effectively silencing would-be critics through the threat of penalty that is quasi-criminal in nature.54 They note that the bar is “not merely a professional organization” but rather part “of a political institution governed by public officials” and as such, “criticism of its officials is political speech.”55

But, the legislative history of the First Amendment and intent of the Founders is just one motivation behind the vigorous protection afforded speech critical of public officials. More important are the basic principles that the First Amendment protects that the Court has articulated repeatedly in striking down government restrictions on speech. The liberty to disparage public officials is a necessary principle and element of a healthy democratic society.56 The “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”57 Broad public debate fosters and improves public policy58 and it protects the marketplace of ideas; when men have “realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good Statements Concerning a Judicial Officer (2000) (noting under Sullivan “and its progeny, judges and other public legal officers are ‘public officials’”).

51 Sullivan, 376 U.S. at 276 (noting strong disapproval of the Act by Madison and Jefferson); Jeanne D. Dodd, Comment, The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N.KY. L. REV. 129, 131-32 (1988); see also Hawkins, supra note 8, at 307. (noting that “Madison knew that criticism of public officials, judges included, was an essential part of a free society”). 52 Sullivan, 376 U.S. at 273-74.

53 Id. (noting “right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government”). 54 Id, at 131-33. 55 Dodd, supra note 53, at 146. 56 Bridges, 314 U.S. at 270. 57 Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). 58 See e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO GOVERNMENT (1948).

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desired is better reached by the free trade of ideas.”59 The “path of safety lies in the opportunity to discuss freely supposed grievances and possible remedies”60 and free speech prevents government officers from abusing power by providing the public with the capacity to change the government, speak out against corrupt officials, and otherwise fix problems.61

Nevertheless, some commentators argue that judges are entitled to extraordinary protections beyond that afforded other public officials because judges lack the power and capacity to confront their critics in the same way as, say, the President or the Congress.62 However, Supreme Court decisions and dicta establish that judges do not enjoy special immunity from the criticisms the other branches suffer63 because “operations of the courts and the judicial conduct of judges are matters of utmost public concern.”64 Observing that that “commentary and reporting on the criminal justice system” particularly lies at the “core of First Amendment values, for the operation and integrity of that system is of crucial import to citizens concerned with the administration of government,”65 the Court reasons that “an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”66

In summation, although it sometimes seems “judges forget about the First Amendment when free speech is directed at them and take disciplinary action against the lawyer,”67 Supreme Court decisions have established a “practically universal agreement” exists that the First Amendment guards the “free discussion of governmental affairs”68 and officials, including judges. Because “unabridged

59 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 60 Whitney, 274 U.S. at 375 (Brandeis, J., concurring). 61 See generally id.; JOHN H. ELY, DEMOCRACY AND DISTRUST (1981); Stromberg v. California, 283 U.S. 359, 369 (1931) (arguing “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system”).

62 See Hawkins, supra note 4, at 1354. Whether rules restricting judges from speaking should be relaxed is outside the scope of this Note.

63 See e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976). 64 Landmark, 435 U.S. at 829. 65 Nebraska Press, 427 U.S. at 587 (Brennan, J., concurring). 66 Bridges, 314 U.S. at 270. 67 Freedman, supra note 14. 68 Mills v. Alabama, 384 U.S. 214, 218 (1966).

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speech is the foundation of political freedom,”69 speech regarding public issues and officials should be “uninhibited, robust, and wide-open” even if it means government officers must endure “vehement, caustic, and sometimes unpleasantly sharp attacks.”70 Critics are to be encouraged, not discouraged.71 Thus, where “law burdens core political speech, we apply 'exacting scrutiny,' and we uphold the restriction only if it is so narrowly tailored to serve an overriding state interest.”72

2. Content-Based Regulations

Strict scrutiny also applies to content-based regulations. A content-based regulation is a rule or law that intends to prohibit a speaker’s particular message; “content discrimination occurs when the government's purpose concerns the communicative impact of the speech, and not when the government's purpose concerns the non-communicative impact.”73 Increasingly, the Supreme Court has looked to the distinction between content-based and content-neutral laws, applying stricter scrutiny to regulations of speech that are based on silencing the message’s communicative impact.74 Justice Kennedy particularly dislikes content-based regulations, believing those that do not fall into a “traditional exception” (such as incitement) are invalid per-se, especially when speech is political and “at the heart of the First Amendment.”75

69 Republican Party v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring). 70 Sullivan, 376 U.S. at 270.

71 Id. at 279. The Court gives broad latitude to rebarbative speech because otherwise “would-be critics of official conduct may be deterred from voicing their criticisms.”

72 McIntyre, 514 U.S. at 347. The use of strict scrutiny as the level of review for attorney criticisms is further supported by Republican Party. Republican Party involved a Minnesota rule that restricted judicial campaign speech. In invalidating the rule, the Court used strict scrutiny because political speech was at the heart of the matter. 536 U.S. at 765.

73 Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615, 618-19 (1991). For example of a law struck down under strict scrutiny for impermissibly determining entire category of speech prohibited, see Boos v. Barry, 485 U.S. 312 (1988). 74 Williams, supra note 75, at 615.

75 Republican Party v. White, 536 U.S. 765, 793 (2002) (Kennedy, J., concurring). This case involved restrictions on judicial speech in the election context. Justice Kennedy, in concurring with the majority, noted that, “I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. The speech at issue here does not come within any of the exceptions to the First Amendment recognized by the Court. . . . The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose.” Id.

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The major problem with a content-based rule is it allows the government to act as censor, determining permissible viewpoints and content.76 A “content-neutral” law, on the other hand, attempts to prevent a harm not connected with the actual message of the speech.77 An example of a content-neutral law is a regulation prohibiting playing loud music late at night.78 While the law may interfere with the freedom of speech or expression in not allowing the playing of loud music at night, the law is content-neutral because it does not prohibit a certain kind or type of music; it fairly applies to all forms of music played loudly at night. A content-based law actually aims at the actual communicative impact of the speech.79 A content-based regulation would forbid all music of a certain band or genre. Because the “Government’s ability to impose content-based burdens on speech raises the specter that the Government may effectively drive certain ideas from the marketplace,” the Court has determined that content-based regulations are subject to strict scrutiny.80 Thus, even where the content the government is attempting to suppress is particularly vile, such as racist rhetoric, the Court has struck down such laws as impermissibly viewpoint discriminatory because the state has no authority “to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules.”81 Rules curtailing attorney criticisms of the judiciary are content-based. The Court will recognize a content-based rule where “the harm the regulation seeks to remedy necessarily flows from the communicative impact of the speech.”82 It is plain that the state, in creating and enforcing various regulations curtailing attorney criticisms, is aiming at what it considers the dangerous communicative aspect of the

76 Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 (1980) (stating, “[t]o allow the government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth”).

77 The most common type of content-neutral law is the so-called “time, place, manner” restriction. For example, see Ward v. Rock Against Racism, 491 U.S. 781 (1989).

78 See generally id. In Kovacs v. Cooper, 336 U.S. 77 (1949) the Court upheld a law prohibiting sound trucks even if it interfered with communication. The Court found the law provided reasonable protection to homes and businesses from sound amplification and was content neutral. 79 See generally Williams, supra note 75.

80 Id. See also Kingsley Int’l Pictures Corp. v. Regents of State Univ. of New York, 360 U.S. 684, 689 (1959) (holding state cannot deny a license to a film advocating ideas the state does not favor since the First Amendment’s “basic guarantee is freedom to advocate ideas”); David A. Straus, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 354 (1991); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 198 (1983). 81 R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992). 82 Id. at 657.

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attorney’s speech and the public response to that speech.83 The state concedes this point by arguing that a valid reason to silence an attorney is the criticism may threaten the public’s confidence in the “fairness and impartiality of our system of justice.”84 Since the state’s purpose is to eliminate critical viewpoints voiced by attorneys that it believes are dangerous to public confidence, professional responsibility rules restricting attorney criticisms are the quintessence of a content-based regulation and are subject to strict scrutiny.

II. APPLICATION OF STRICT SCRUTINY

A. The Test Defined

“The Constitution creates a bias in favor of speech that comes within the ambit of the First Amendment.”85 The strict scrutiny level of review illustrates this bias. Under strict scrutiny, the government must meet an elevated burden before the Court will sustain the restriction of liberty;86 it is not up to the “party attempting to exercise the right to speak” to provide “evidence to establish that the speech will be useful or worthy” because the “Constitution relieves the speaker from bearing the burden of justifying the speech.” Instead, the burden is on the state to defend its restriction and the rule must survive a two-prong test. The state first must prove that it has a compelling interest that justifies the rule.87 A mere state interest is not enough to survive strict scrutiny;88 the state must show the rule exists to protect a paramount concern.89 Assuming the state shows such an interest, the state must then demonstrate that the advance of the compelling interest outweighs the loss of protected rights and avoids unnecessary abridgment of

83 See Forsyth County v. Nat’l Movement, 505 U.S. 123 (1992) (invalidating legislation linking price of parade permit to the expected anger of the audience response). See also Straus, supra note 82, at 634 (arguing “except, perhaps, in extraordinary circumstances, the government may not restrict speech because it fears, however justifiably, that the speech will persuade those who hear it to do something of which the government disapproves. But bad consequences that come about because the speech persuades people to do certain things cannot justify suppression”). 84 Ray, 797 So.2d at 560.

85 Lloyd B. Snyder, Annual Survey of the United States Supreme Court and Federal Law: Rhetoric, Evidence, and Bar Agency, 28 CREIGHTON L. REV. 357, 370 (1995). 86 Buckley v. Valeo, 424 U.S. 1, 64-65 (1976); NAACP v. Alabama, 357 U.S. 449, 460-61 (1958). 87 See Buckley, 424 U.S. at 94; Williams v. Rhodes, 393 U.S. 23, 31-33 (1968). 88 Buckley, 424 U.S. at 94. 89 Id.

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speech.90 This is demonstrated by showing that the regulation is narrowly tailored to protect the government’s compelling interest.91 Said another way, under strict scrutiny “[i]f the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties."92 This is because “[i]f the contents or subject matter of one speaker's message is hurtful or inimical to the public interest, the preferred solution is to invite other speakers to respond and correct the record, not to prohibit the speech altogether.”93

B. The Compelling Government Interest The first element the government must demonstrate is that it has a

compelling reason for the abridgment of speech. 94 Supporters of rules governing attorney criticisms of the judiciary point to several policy interests that they claim sustain curtailing attorney free speech involving criticisms of judges. The state’s three major policy arguments deal with protection of judicial independence, public confidence in the legal system, and administration of justice. Additionally, supporters assert that attorneys give up First Amendment rights by becoming members of the bar. They postulate that since critical remarks from attorneys “have more impact on the judgment of the citizen than similar remarks by a layman,” attorneys should not be allowed to make unfettered criticisms.95 This Note will discuss each of these compelling interests in turn.

1. Attorney Criticisms Affect Public Confidence in the System and

Judiciary

The state contends attorneys should not voice criticisms of judges because criticisms undermine public confidence in the system.96 The most frequently used 90 Sherbert v. Verner, 374 U.S. 398, 406 (1963); see also United Public Workers v. Mitchell, 330 U.S. 75, 96 n.16 (1947). 91 Buckley, 424 U.S. at 25 (holding the state must “emplo[y] means closely drawn to avoid unnecessary abridgment”). 92 Kusper v. Pontikes, 414 U.S. 51, 59 (1973). 93 Snyder, supra note 87, at 370-371. 94 See Buckley, 424 U.S. at 94; Williams, 393 U.S., at 31-33. 95 Porter, 766 P.2d at 969.

96 It is impossible to cite all the different courts relying on public confidence. For an example, see Comm. on Prof'l Ethics & Conduct v. Horak, 292 N.W.2d 129 (Iowa 1980). Horvak is an unusual case involving an attorney actually filing a pleading declaring that the judge was involved in a conspiracy. A reprimand was likely justified under these circumstances.

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rationale of the state,97 the public confidence rationale rests on the premise that faith in the legal system is essential to ensure the public continues to trust the courts to settle claims and respect judgments since the legal system has no means to enforce its decisions other than through the willingness of the public to accept its decrees.98 Because an attorney’s special place in the system makes his criticism particularly persuasive to the public, the attorney should not be allowed to make criticisms of judges and the system.99 However, while protecting public confidence in the legal system is important, it is not an unassailable position.

a) Paternalistic and Censorship The public confidence rationale is paternalistic, content-based, and interferes

with autonomy.100 It is pure censorship by the state. As discussed above, the Court is leery of content-based regulations because above “all else the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content;”101 the essence of “forbidden censorship is content control.”102 The First Amendment protects not only the speaker’s right to communicate but also the right of the listener to receive information.103 Rules chilling attorney speech foreclose the public from “receiving information on the judicial process from those who are intimately familiar with this branch of

97 See e.g., Kentucky Bar Ass’n. v. Heleringer, 602 S.W.2d 165, 168 (Ky. 1980). This case involved an attorney in an on-going abortion case calling a judge unethical and grossly unfair. 98 Dodd, supra note 53, at 144.

99 Id. Protecting the feeling of judges was not the objective of the drafters of the professional responsibility rules. See e.g., In Re Terry, 394 N.E.2d 94, 95 (Ind. 1979) (“professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations”). But see also Bradley v. Fisher, 80 U.S. 335, 355 (1871) (“obligation which attorneys impliedly assume. . . . when they are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers”).

100 See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (holding state may not suppress truthful, non-misleading commercial information). 101 Police Dept. v. Mosley, 408 U.S. 92, 95 (1972). 102 Id. at 96.

103 See Porter, 766 P.2d at 967. See also Virginia Pharmacy, 425 U.S. at 770; ("people will perceive their own best interests only if they are well enough informed"); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).

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government,” effectively allowing the state to act as a censor.104 The state may not act as a censor because it is not the function of government to "select which issues are worth discussing or debating."105

b) Interference with Voter Autonomy

A content-based law may sometimes be permissible, however. In light of prior

Supreme Court cases, a more serious flaw in the public confidence argument is its inconsistency with the free flow of information necessary to make an informed voting decision.106 In previous decisions, the Court noted that the free flow of information in elections is important because in “a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation.”107 Consequently, Court was troubled by the “obvious tension” between the election of judges and professional responsibility rules that declared that judicial candidates could not talk about certain subjects of interest to voters. Applying strict scrutiny, the Court observed that it has “never allowed the government to prohibit candidates from communicating relevant information to voters during an election”108 because robust political debate guarantees “an uninhibited marketplace of ideas in which truth will ultimately prevail” can flourish.109 Concurring justices also were concerned with the fact that by restricting speech, the state in effect was impeaching “its own system of free and open elections.”110 Most states allow voters to elect judges; thus, criticisms of judges are of particular interest to the electorate. Attorney speech on judicial officials may be particularly valuable to voters given the attorney’s place in the legal system. For that reason, as a Texas court put it, any “bridle upon a free flow of information to

104 Jeffrey White, Note, Standing Committee on Discipline v. Yagman: The Ninth Circuit Provides Substantial First Amendment Protection for Attorney Criticism of the Judiciary, 26 GOLDEN GATE

U.L. REV. 115, 120 (1996); Porter, 766 P.2d at 967. 105 Mosley, 408 U.S. at 96.

106 Thirty-nine states use elections to select judicial officers. AMERICAN JUDICATURE SOCIETY, JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS (Apr. 2002).

107 McIntyre, 514 U.S. at 347. See also Elizabeth I. Kiovsky, First Amendment Rights of Attorneys and Judges in Judical Campaigns, 47 OHIO ST. LJ. 201 (1986). 108 Republican Party, 536 U.S. at 782. 109 Red Lion, 395 U.S. at 390.

110 Republican Party, 536 U.S. at 795. Justice O’Connor notes that “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” Id. at 792 (concurring).

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the people concerning the performance and qualifications of public officials will have little chance of gaining constitutional approval.”111

c) Questionability of the Causal Link

The causal link between an erosion of public confidence in the judiciary and

attorney criticisms is also attackable.112 Showing a correlation between attorney criticisms and public confidence in the judiciary is important because the Court demands more than “subjective judgments about debatable issues to justify imposition of restrictions on the exercise of the right of free speech.”113 A connection between a decline in public confidence and attorney criticisms is difficult to establish because “confidence and respect are elusive characteristics, not easily quantified or measured.”114 By nature, public confidence and respect for the judiciary “become mercurial concepts which depend upon shifts in values of the ‘public’ with which we are concerned.”115 History does not seem to bear out that criticisms injure public confidence; it seems instead “to teach us that our predecessors endured far worse, and both they and the Republic seem to have survived.”116 If we assume, arguendo, that public confidence in the legal system has

111 State Bar v. Semaan, 508 S.W.2d 429, 433 (Tex. Civ. App. 1974).

112 See Caprice Roberts, Note, Standing Committee on Discipline v. Yagman: Missing the Point of Ethical Restrictions on Attorney Criticism of the Judiciary, WASH & LEE L. REV. 817 (1997). Interestingly, the Supreme Court enjoys generally higher public confidence ratings than the other branches and institutions do, even with Justice Scalia occasionally sniping at Justice O’Connor. Sourcebook of Criminal Justice Statistics: Reported confidence in selected institutions, United States, 1977-2002, at www.albany.edu/sourcebook/1995/ind/PUBLIC_OPINION.U.S._Supreme_Court.Confidence_in.2.html (last visited January 15, 2004). See also Lloyd Snyder, Constitutionality and Consequences of Restrictions on Campaign Speech by Candidates for Judicial Office, 35 UCLA L. REV. 207, 242 (1987) (noting “[t]he ability of the Supreme Court to command the respect of the public, however, does not appear to have been destroyed by the public-speaking of its members”). Indeed, Justice Scalia believes vigorous dissents do not lessen public confidence; instead, they enhance the Court’s prestige and impress upon the public the force of a genuinely unanimous court. Tony Mauro, Scalia on Dissents, LEGAL TIMES, June 20, 1994, at 8. See also generally Ross, supra note 12, at 961 (noting there is “little indication … that the use of hyperbolic or blistering language in judicial opinions has seriously eroded public respect for the Supreme Court or other appellate courts” 112 because “even when the news media reports bilious judicial language to a mass audience, the typical layperson seems to sense that a certain amount of contention is part of the normal give-and-take of the judicial decision-making process”). 113 Snyder, supra note 112, at 243. 114 Id. at 242. 115 Hall, Judicial Removal for Off-Bench Behavior: Why?, 21 J. PUB. L. 127, 147 (1972).

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indeed eroded, it may have nothing to do with attorneys criticizing judges because other facts may influence public perception of the legal system. For one example, the public “regularly submits complaints about Judge Judy and other TV judges to the state Commission on Judicial Performance,” believing obnoxious and outrageous behavior of TV “judges” is the reality of what goes on in the courtroom.117

d) Attorney Criticisms May Protect Public Confidence

It is also possible that any decline in public confidence is a result of not

allowing attorneys to criticize the system. “The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable.”118 Rules designed to protect public confidence in the system by filtering out criticisms and leaving the public blissfully unaware of problems may actually backfire119 because non-lawyers taking responsibility for educating the public about inadequacies with judges or the system often fail to grasp the subtleties of “the relationships among the rules, institutions, and personalities that comprise our legal system” in the same fashion as a practicing lawyer daily exposed to the courts. 120 Lawyers have a “special responsibility for the quality of justice”121 and states adopting the Model Rules even require a “lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office” inform an appropriate

116 Hawkins, supra note 4, at 1364. However, Stephen J. Fortunato, Jr., On a Judge's Duty to Speak Extrajudicially: Rethinking the Strategy of Silence, 12 GEO. J. LEGAL ETHICS 679, 685 argues that in defense of letting judges speak that we “are long past the days when the county courthouse crowd, including the judges, were well known to everyone in the locality, including the local newspaper editor. Newspaper towns are as rare as stagecoaches, and the teletype has been supplanted by e-mail, the Internet and C-SPAN.”

117 Mike Farrell, There's Disorder in the Court—and Television Stands Accused, LOS ANGELES TIMES, May 31, 2000, at B9. See also Dershowitz, Betraying the Bill of Rights, N.Y. TIMES, Nov. 28, 1976 (Book Review), at 1 (arguing barring attorney criticisms created misfortune of public misconceptions about judges). 118 Freedman, supra note 14, at 729.

119 Dershowitz, supra note 119, at 1, 42-44 (noting “there is a high price paid in leaving to non-lawyers the major responsibility for educating the lay public about the inadequacies of our courts. Practicing lawyers . . . daily exposed to the intricacies of the law have a unique insider's understanding of the subtle relationships among the rules, institutions and personalities”). 120 Id.

121 In re Robertson, 886 P.2d 806 (Kan. 1994); In re Application for Goetz, 474 N.W.2d 29, 33 (N.D. 1991); MODEL RULES OF PROF’L CONDUCT PREAMBLE (2002).

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authority.122 This rule recognizes that attorneys, because of their unique position in the system, may also be in the best position to inform about abuses of judicial power.123 Thus, even if an attorney’s criticism may tend to validate unjust criticism of judges in the public eye, the qualifications that make the attorney’s criticism persuasive also make the attorney the best resource for just criticism of judges.124 If an attorney’s criticism is false or unfair, in “our system of government, counter-argument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly.”125

e) Protecting Attorney Criticisms Will Not Result in Chaos

Concerns that allowing attorneys First Amendment protections will open a

floodgate of judicial criticisms resulting in the loss of public confidence and vigilante justice are also simply not justified. The contention that loss of public confidence in judges will result in public chaos ignores the fact that while courts may not have armies at their disposal to enforce judgments, the “police power of the state is readily available to coerce enforcement of court decrees.”126 Moreover, even with First Amendment protections, attorneys are not likely to speak out against judges in the interest of preservation of goodwill with the judiciary. An attorney unjustly criticizing a judge runs the risk of placing his firm in a poor light among the bench; this will not make the attorney popular among his partners or associates and may substantially injure (if not terminate) his career. One should not under-estimate the persuasive power of self-preservation.

f) Abuse of the Rationale

122 MODEL RULES OF PROF’L CONDUCT R. 8.3 (2002).

123 See Sawyer 360 U.S. at 636 (noting “surely permissible criticism may as well be made to a lay audience as to a professional; oftentimes the law is modified through popular criticism”). In Pickering v. Board of Education, 391 U.S. 563, 571 (1968), the Court held that although the state has an interest in protecting orderly school administration, teacher speech could not be unduly restricted where a teacher criticized allotment of school funds because teachers “are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent.” The same analogy can be drawn to attorney speech that is critical of judges – attorneys are as a class best suited to having informed and definite opinions on the administration of the legal system and of the quality of judicial officers. 124 See id.

125 Wood v. Georgia, 370 U.S. 375, 389 (1962) (overturning sheriff’s conviction for contempt for issuing press releases and a letter criticizing a judge to a grand jury panel). 126 Snyder, supra note 114, at 241.

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A final serious problem with the public confidence argument is it has been abused as a method for suppressing views coming from persons less favored. As one commentator noted, “any disgruntled judge, prosecutor, or other person connected with the legal profession may silence a critic by making a complaint to the Attorney Grievance Commission.”127 The best example of this comes from Idaho where a lawyer, commenting on why in a similar case an elected judge may have come to a different conclusion than an Article III judge, was punished for suggesting the elected judge was motivated by political concerns.128 The case is troubling because it is common for commentators discuss the fact that elected judges must be sensitive to political considerations.129 Justice O’Connor has even taken notice that “if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case . . . [e]lected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.”130 While Justice O’Connor was referring to judges generally, the gist of what she said and what the Idaho attorney suggested do not really differ. Another example of pretextual use of the public confidence rationale, although technically outside this Note’s scope, occurs in cases where an attorney is punished for criticizing a court in a brief or other court document. Courts seeking to punish these attorneys for disrespectful remarks in documents often trot out the public confidence rationale as a justification for discipline, even though “offending statements were between this attorney and the bench, and were presented in such a way that only the bench and opposing counsel would see them” and “a motion for reconsideration in an appellate court, while a public document, would receive as much scrutiny from the public if it were written on the wind.”131 It therefore appears some courts blindly the public confidence argument to censor attorneys, paying little heed as to whether the particular criticism in question actually posed any threat to public confidence.132 It is also

127 Haskell Shelton, Rule 8.2 – Michigan Rules of Professional Conduct: Protector of Court Dignity, or Unconstitutional Restraint on Free Speech, 74 MI BAR JNL. 902, 903 (1995). 128 Topp, 925 P.2d 1113. 129 See e.g., Julian Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. COLO. L. REV. 733, 739 (1994). 130 Republican Party, 536 U.S. at 765 (O’Connor, J., concurring).

131 Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 434 (Ohio 2003) (Pfeifer, J., dissenting). But see e.g., Green, 11 P.3d 1078 (arguing courts concerned especially with protecting the public’s confidence in the judiciary should offer more protection should to court documents because of the rather limited public access exposure to them).

132 CHARLES W. WOLFRAM, MODERN LEGAL ETHICS, 11.3.2, at 601-02 (1986) (finding "current that runs through some judicial opinions is that all lawyer criticism of judges creates public disrespect for the law or the judiciary"). A criticism made in a brief is outside the scope of this Note, but I would

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interesting to note that “courts have tended to exhibit a similarly remarkable reluctance to impose sanctions for harsh comments that judges have made about fellow judges” whereas they have showed no such reluctance in disciplining lawyers for harsh comments made about judges.133

3. Attorney Criticisms Undermine Judicial Independence

Courts and commentators also argue attorney criticisms undermine judicial

independence because attorney criticisms compromise and interfere with the judge’s ability to administer justice.134 Commentators consider judicial independence the “crown jewel,” a fundamental cornerstone of our system of government.135 Attacks on judges “risk inhibition of all judges as they conscientiously endeavor to discharge their constitutional responsibilities.”136 The judicial independence theory is tied to the public confidence theory; proponents of judicial independence also argue that rules curtailing attorney criticisms of judges are “essential to protection of the independence of the judiciary and the public’s confidence in it.”137

suggest that attorney criticisms in briefs would be better dealt with under a “time, place, manner” theory rather than claiming they injure public confidence.

133 Ross, supra note 12, at 966. Ross notes that this is not the case in every jurisdiction; sometimes judicial critics have been discplinced for intemperate remarks. However, he goes on to observe that “Harsh comments by judges about their colleagues are probably more common than the dearth of reported opinions might suggest. Disciplinary authorities are naturally loath to commence proceedings against every judge who makes an improper comment about a fellow judge, even if such comments technically could justify sanctions.” Id. at 968. 134 See Horak, 292 N.W.2d at 130 (arguing “to permit unfettered criticism regardless of the motive would tend to intimidate judges in the performance of their duties and would foster unwarranted criticism of our courts"); In re Shimek, 284 So. 2d 686, 689 (Fla. 1973) (finding attorney’s assertions that judge was shirking his official duties was "calculated to cast a cloud of suspicion upon the entire judiciary”); Judith S. Kaye, Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticisms of Courts, 25 HOFSTRA L. REV. 703 (1996).

135 Linda Greenhouse, Rehnquist Joins Fray on Rulings, Defending Judicial Independence, N.Y

TIMES, Apr. 10, 1996, at A1.

136 Louis H. Pollak, Criticizing Judges, 79 JUDICATURE 299, 301 (1996) (pointing out there is an “important line between legitimate criticism of a decision and illegitimate attack upon a judge. Criticism of a decision can illuminate issues and sometimes point the way toward better decisions. Attacks on a judge risk inhibition of all judges as they conscientiously endeavor to discharge this constitutional responsibilities”); see also Douglas Hillman, Judicial Independence: Linchpin of Our Constitutional Democracy, 76 MICH. B.J. 1300 (1997) (noting that “[t]his rising tide of judge bashing, although not new, is more vitriolic, more determined, and thus more dangerous, because it threatens the very independence of the judiciary as an institution and, equally important, the public's confidence in it"); Kaye, supra note 136. 137 See Kaye, supra note 136.

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The interest in protecting judicial independence is certainly significant. However, it is selectively applied;138 furthermore, “when examined in the light of history, contemporary claims of threats to judicial independence seem rather overblown.”139 The persons posing the greatest threat to judicial independence -- the persons with the actual power to affect a judge’s career on the bench, such as presidents and mayors -- generally are not the same as attorneys brought before disciplinary committees.140 Supreme Court justices that call their colleagues irrational are not disciplined, but ordinary lawyers laboring in the trenches are. And, while it is true judicial officers do not enjoy the same power to debate as other members of government and thus some critical statements may be particularly harmful to public confidence or judicial independence,141 this problem is mitigated by the fact attorneys are ethically encouraged to defend judicial officers from unjust criticisms142 as well as by libel laws and the fact that judges “are the only officials of our national government who are institutionally insulated from political pressure and popular opinion.”143 Attorneys should have the latitude to point out flaws, even if the criticism may have the effect of undermining public confidence or 138 See Freedman, supra note 14, at 737. 139 Yoo, supra note 3, at 281 (noting “No one today is trying to pack the Court to reverse its course of decisions. No one is seriously arguing now, as President Lincoln did, that a Supreme Court decision should bind only the parties in the case before it. No President is suggesting, as Presidents Jackson and Jefferson did, that he has no obligation to enforce judicial decisions he disagrees with. Congress is not impeaching judges of the other party, as occurred in the early years of the Jefferson administration, nor are the political branches eliminating lower federal courts or fiddling with the appellate jurisdiction of the Supreme Court in an effort to prevent the decision of certain constitutional questions”). 140 Freedman, supra note 14, at 737 (noting some criticisms do “threaten the independence of the judiciary, but these are not the criticisms of practicing lawyers. . . the real threat to judicial independence comes from public officials, from lawyers like Mayor Rudolph Giuliani, Governor George Pataki, and President Bill Clinton - that is to say, from people who have the power to affect a judge's career on the bench . . . ironically, when those officials criticize judges and expressly threaten them with removal from office because of particular decisions, no disciplinary action is ever taken.”). See also Kirby, supra note 20 (noting “the gravest attacks in the United States have been made by State politicians seeking to punish judges for decisions in criminal, and particularly death penalty cases which tend to engender strong public passions); see also generally John Q. Barrett, The Voices and Groups That Will Preserve (What We Can Preserve Of) Judicial Independence, 12 ST. JOHN'S J.L. COMM. 1 (1996). 141 Kirby, supra note 20.

142 MODEL RULES OF PROF’L CONDUCT R. 8.2 cmt. 3 (2002). See also Barrett, supra note 142, at 13 (asserting that lawyers should “speak out about judicial independence, both when a particular judge faces specific threats and in defense of the principle itself”); Howard C. Coker, Responding to Judicial Criticism, 73 FLA. BAR J. 10 (1999) (discussing when attorneys should respond to unjust criticism of judges). 143 Yoo, supra note 3, at 281

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independence in the judiciary for there “is no question that fair criticism plays a critical role in improving the quality of the courts.”144 Indeed, it is perhaps only by shaking up the public that changes will occur to remove inefficient or incompetent officials and make the system better. Finally, as already discussed above, the Court recognizes that while the state “has an interest in protecting the good repute of its judges, like that of all public officials,” “the institutional reputation of the courts” is nevertheless “entitled to no greater weight in the constitutional scales.”145 Silencing all criticism of the judiciary and legal system will likely do more harm than good, fostering resentment and distrust instead of respect.146 Without more, it is very questionable whether protection of judicial independence alone is enough to justify infringement upon a fundamental right.

4. Criticisms Interfere with Efficient and Smooth Administration of

Justice

A third rationale advanced by the state is attorney criticisms of judges interfere with the efficient and smooth administration of justice. This is the state’s best argument. Attorney criticisms may result in an interference with the administration of justice in a number of ways, most pertaining to the issue of criticism made during pending litigation (and therefore outside the scope of this Note).147Critical statements undermine the relationships between judges and attorneys. It is difficult to fathom that an attorney’s criticism of a judge will not taint their relationship; the attorney’s criticism will almost certainly engender feelings of resentment, and a strained relationship between a judge and attorney may lead to difficulty in fostering the necessary dignity required for judicial proceedings. 148 An attorney’s fears over a real or a perceived bias and a judge’s subsequent ability to dispense justice may lead to motions for recusal:149 indeed, 144 Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges From Office For Unpopular Decisions? 72 N.Y.U.L. REV. 308 (1997) 145 Landmark, 435 U.S. at 841. See also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 447 (1985) (holding that “fundamentally, although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights”).

146 Dodd, supra note 53, at 144. (arguing, "silencing all attorney criticism is as likely to generate suspicion as it is to promote confidence in the judicial system"). 147Snyder, 472 U.S. at 644-45.

148 See Geraldine Rowe, At Legal Loggerheads: An Argument for a Special Rule Guiding Judicial Commentary on Attorneys, 9 GEO. J. LEGAL ETHICS 933, 939-40 (1996) (discussing how judge’s criticism of an attorney can affect working relationship between attorney and judge). 149 Id.

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commentators suggest at least one attorney critic has abused the substantial freedoms given by the Ninth Circuit Court of Appeals to engage in forum shopping.150 Such an abuse of the freedom to criticize may in fact pose a substantial interference with justice, giving rise to a compelling interest in suppressing the attorney’s speech that justifies state regulation.151 Repeated defamatory criticisms coupled with miscreancy such as filing frivolous lawsuits may also substantially interfere with the administration of justice.152

5. Attorney’s Surrender Rights by Becoming Members of the Bar It is quite popular to contend that attorneys give up certain rights upon

passing the bar.153 As one court notes: We are never surprised when persons, not intimately involved with the administration of justice, speak out in anger of frustration about our work and the manner in which we perform it, and shall protect their right to express themselves. A member of the bar, however, stands in a different position by reason of his oath of office and the standards of conduct which he is sworn to uphold.154

The legal profession is supposed to be honorable; its officers are supposed to conform to a “higher code of conduct to ensure the honor and integrity of the legal system”155 and behave as “gentlemen.”156 It has been argued that obedience “to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.”157 Advocates for restriction of attorney free speech contend attorneys “tacitly agree to abide by this higher code of conduct”158

150 White, supra note 106, at 131-32 (noting Yagman’s shenanigans and positing they are sanctionable for prejudicing justice even under clear and present danger). 151 Id.

152 See In re Jafree, 444 N.E.2d 143 (Ill.1982) 153 Sawyer, 360 U.S. at 636; United States Dist. Court v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993). 154 In Re Raggio, 487 P.2d at 500-01.

155 Roberts, supra note 114, at 822. See also In re Frerichs, 238 N.W.2d 764, 769 (Iowa 1976) (arguing "lawyer, acting in professional capacity, may have some fewer rights of free speech than would a private citizen").

156 Philip Shuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, 37 Geo. Wash. L. Rev. 244, 245-46 (1968).

157 Sawyer, 369 U.S. at 646-47 (Stewart, J., concurring). And one would add today “ladies.” See also State ex rel. Nebraska State Bar Ass'n v. Michaelis, 316 N.W.2d 46, 53 (Neb. 1982) (arguing "lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice"). 158 Roberts, supra note 114, at 822.

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when they become lawyers since a “license granted by the court requires member of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.”159 A court even used this rationale to support punishing an attorney for making a judicial criticism in his capacity as a private citizen because rules of professional conduct “bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives."160

As one commentator notes, the explanation that attorneys give up rights upon passing the bar “is tossed in to add heft to other arguments for restricting lawyer speech, but the rationale does not add substance to those arguments.”161 Not surprisingly, the justification can be easily assailed.162 First, there is “no logical reason why the right to speak should be less protected for those who choose to practice law.”163 This is because if “speech by a lawyer creates a threat of harm that the state may protect against, then the state may act whether or not the speaker is an attorney. If the speech does not create such a threat, the fact that the speaker is an attorney should not justify suppression.”164 Moreover, under the First Amendment, the state “is constitutionally disqualified from dictating the subject about which persons may speak and the speakers who may address a public issue.”165 The center of a court’s inquiry should be on the speech itself, not on the speaker.166 Focusing on the danger posed by the speech rather than the speaker offers less opportunity to discriminate against a particular attorney. Second, “[f]ostering the image that members of the bar are gentlemen is simply not a sufficient reason for suppressing speech.”167 The Supreme Court has also become more willing to protect the speech rights of attorneys, chipping away at certain

159 Snyder, 472 U.S. at 644-645. See also In re Hopewell, 507 N.W.2d 911 (S.D. 1992) (explaining lawyers have fewer speech rights); Frerichs, 238 N.W.2d at 768-69.

160 Notopoulos v. Statewide Griev. Comm., No. CV010510911S, 2003 Conn. Super. LEXIS 2647 (Sept. 24, 2003). The attorney wrote a letter criticizing a judge; though he had no intent to disrupt the proceedings, he was punished for undermining public confidence in the courts. 161 Snyder, supra note 87, at 371.

162 WOLFRAM, supra note 134, at 602-03, calls the idea that attorneys give up rights by becoming members of the bar “readily rejectable.” New Jersey, for example, states attorneys, like other citizens, “are entitled to the full protection of the First Amendment, even as participants in the administration of justice.” In re Hinds, 90 N.J. 604, 614 (1982). 163 Snyder, supra note 87, at 371. 164 Id. at 371-72 165 First Nat'l Bank v. Bellotti, 435 U.S. 765, 785-86 (1978). 166 Id. at 371-72.

167 Snyder, supra note 87, at 359 (also noting history shows “purpose of the rules was to enhance the image of the corporate lawyers not to protect the public” at least in the area of restrictions on speech during litigation).

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onerous “ethical” rules lacking proper rationales. In fact, the bar “has been singularly unsuccessful in defending First Amendment challenges brought by attorneys.”168 For example, it has recognized the “importance of leaving the States free to select their own bars” and having a bar composed of “lawyers of good character” was a worthy objective. 169 But, the Court also stated such power could not be exercised in an “arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association” and it is “important both to society and the bar itself that lawyers be unintimidated – free to think, speak, and act as members of an Independent Bar.”170 Similarly, the Court offers some protection to attorney commercial speech,171 and it has protected the right to solicit in some circumstances as a form of political expression.172

C. Analysis

Courts do not agree on when the state interest in protecting public confidence, judicial independence, or the smooth administration of justice rises to the level of being compelling enough to outweigh the First Amendment rights of an attorney. Some courts have gone so far as to punish an attorney for merely stating an opinion. Most, however, require a false statement of fact. Adding to the confusion, a disciplinary committee has tremendous power to punish an attorney for criticisms it does not like under such vague rules as conduct that prejudices the administration of justice. This part of the Note attempts to reconcile the competing interests of the state and the liberty guarantees of the First Amendment. Assuming First Amendment restrictions on attorney speech are not per se invalid, how to balance the state’s interest in protecting public confidence, judicial independence, and the smooth administration of justice is difficult. Judges are clearly public officials. In many states, they are selected by election. And, the functioning of the legal system is of paramount concern and interest to the public. On the other hand, judges do not possess the same capacities to defend themselves as other public officials because of limitations imposed, for example, by the Code of Judicial Conduct. Furthermore, allowing false, personalized, and unfettered assaults on the judiciary by attorneys may result in serious problems and may rise to the level of undermining judicial independence or public confidence and

168 Id. at 365. 169 Konigsberg v. State Bar of California, 353 U.S. 252 (1957). 170 Id. at 273.

171See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In Re Primus, 436 U.S. 412 (1978). 172 Button, 371 U.S. at 439.

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interference with the administration of justice. For these reasons, as loathsome as it may be to liberty loving lawyers, it is probably necessary for attorneys to accept some bridle upon speech criticizing judicial officials. The question, of course, is how much of a restraint should attorneys have to accept as part of their obligation as officers of the court and members of a class of citizens uniquely inured with the capacity to administer justice. Probably the best way to analyze the problem of how to treat attorney criticisms of judges is to consider attorneys as akin to public employees because of the attorney’s unique duties as officers of the court.173 “Public employees, in their capacity as such, occupy a unique position in first amendment jurisprudence.”174 The Court has “always recognized that the state as employer may restrict the speech of its employees in ways in which the state as sovereign may not restrict the speech of its citizens.”175 This is because there is an important “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”176 While many attorneys are not directly be employed by the state, their duties are entangled with state interests to such an extent that it is not an unfathomable stretch to consider an attorney as similar, for purposes of the First Amendment, as a species of the genus publicus employeeus.177 If we assume an attorney is similar to a public employee, then we have prior Supreme Court precedent to work from in considering how to accomplish a balance. The Court employs a two-step analysis in determining whether a public employee’s speech falls within the boundaries of protected speech. First, the Court considers whether the issue is a “matter of legitimate public concern.”178 If the matter is not of public concern, the inquiry ends; the First Amendment does not protect the speech. To achieve First Amendment protection, the speech must be “fairly considered as relating to any matter of political, social, or other concern to the community.”179 Assuming the speech is on a matter of public concern, the Court must then “balance the employee's first amendment rights against the governmental employer's countervailing interest in promoting the efficient performance of its normal

173 See e.g., Roberts, supra note 114, at 845 (discussing attorney speech as similar to the Hatch Act that limits participation of government employees in political matters). Roberts argues that “given the proper environment and legitimate government interests, employment can entail the acceptance of reduced First Amendment rights.” 174 Scott v. Flowers, 910 F.2d 201, 210 (5th Cir. 1990). 175 Id. 176 Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). 177 The author of this Note hopes her lame attempt at Latin will not get her lashed with a wet noodle. 178 Pickering, 391 U.S. at 571. 179 Connick v. Myers, 461 U.S. 138, 146 (1983).

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functions.”180 The offending “statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose.”181 The state interest element focuses “on the effective functioning of the public employer's enterprise.”182 In the case of a lawyer, that interest would be in the smooth functioning of the legal system. Under the public employee line of cases, can an attorney criticize a judge? The answer is yes, so long as the attorney addresses a matter of public concern and the criticism is legitimately found to involve a compelling state interest. This is because the “[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."183 Personal attacks with no social value made for the attorney’s own entertainment would be unprotected. But “attacks” on judges that raised or discussed issues of legitimate public concern – for example, how a particular judge administers justice -- would be protected unless the state could meet the heavy burden of showing that the particular criticism ascends to the level of implicating a compelling state interest. It is questionable, for the reasons discussed above, as to how often an attorney’s criticism rises to the level of implication of a state interest. This is not to say, however, that an attorney criticism never actually implicates a compelling state interest. Two types of criticisms, outside of the purely personal attack, in particular probably involve a compelling state interest. The first are statements likely to cause substantial interference with justice. Interfering with justice is compelling because otherwise critics could slow down the legal process or injure the rights of others. The second are false statements of fact.184 The Court affords false factual statements with very little protection under the First Amendment for reasons discussed below. The rest of this Note considers how to analyze regulations of false speech and speech that poses a significant threat of substantial interference with justice consistent with strict scrutiny and the second requirement that the

180 Flowers, 910 F.2d., at 211. 181 Rankin v. McPherson, 483 U.S. 378, 388 (1987). 182 Id. at 388. 183 Thornhill v. Alabama, 310 U.S. 88, 102 (1940). 184 McIntyre 514 U.S. at 350 (recognizing interest in regulating false speech “carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large”). See also Ramsey v. Bd. of Prof’l Responsibility of Supreme Court, 771 S.W.2d 116, 122 (Tenn. 1989) (“[s]tatements made by a lawyer designed to willfully, purposely and maliciously misrepresent the judges and courts of this State, and to bring those persons and institutions into disrespect, will not be tolerated or condoned”).

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regulation use the least restrictive means necessary to meet the government’s compelling interest.

III. EMPLOYING THE LEAST RESTRICTIVE MEANS

A. Opinions and Criticisms Involving Interference with Administration of Justice

The standard that applies when the state asserts that a criticism prejudices justice is set forth in Gentile. There, the Supreme Court addressed how to balance an attorney’s right to speak in pending litigation and an existing threat to the right to fair trial and efficient administration of justice.185 The Court held speech could be restricted where it involved a substantial likelihood of interference that would obstruct or prejudice the justice and fairness of the proceeding.186 Under Gentile, a state relying upon the interference with justice principle must show the attorney’s criticisms posed a significant interference that was substantially likely to cause an obstruction of justice. It is not enough that the state merely alleges an interest in protecting administration of justice; it must show imminent harm.187 The “substantive evil must be extremely serious and the degree of imminence must be extremely high before utterances can be punished.”188 The state can best demonstrate this in a litigation context, but could also possibly establish it where, for example, an attorney acting malevolently injures public confidence by lying with the sole purpose to mislead the public or to undermine the system.189 The court considering the critical statement should remain mindful that “administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public”190 and exercise care not to simply use interference with the administration of justice as a pretext to punish unpopular statements.

185 Gentile, 501 U.S. 1030. Although Gentile dealt with litigation, the holding is instructive to any situation involving a potential hindrance of justice and the First Amendment. 186 Id. at 1074-75.

187 See e.g., Landmark, 435 U.S. at 845 (noting “[i]n a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice”). See also Craig v. Harney, 331 U.S. 367 (1947). 188 Bridges, 314 U.S. at 263.

189 For an example see In re Crumpacker, 383 N.E.2d 36, 45 (Ind.1978) (disbarring attorney for repeated intemperate criticisms against a judge that ruled against the lawyer). 190 Wood, 370 U.S. at 391.

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B. False Criticisms Not Involving Substantial Interference with Justice

Most recent cases focus on punishing attorneys for false statements of fact, usually under some form of Model Rule 8.2(a).191 While rule 8.2(a) appears facially consistent with the First Amendment, court have applied it in such a way as to not allow enough “breathing room” to speech192 by crafting an “objective” actual malice test. This Note contends that an objective test is the incorrect standard and that the two-part analysis based on the speech protective defamation standard established in New York Times v. Sullivan193 should apply.

1. Proving Falsity

The First Amendment will generally not protect the speaker where the speech involves a false statement of fact. The Court has noted that although an “honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy immunity.”194 A knowing falsehood is not given great protection because it falls into the category of speech that has “no essential part of any exposition of ideas” and because the speech is of “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”195 Proving falsity is more difficult than may appear at first blush, however. The Court’s reasoning hinges upon the distinction between idea and fact; it has established that “[u]nder the First Amendment there is no such thing as a false idea” but argues that false statements of fact are actually of “no constitutional value.”196 As one might imagine, the Court’s interpretation that the First Amendment does not protect statements containing a “provably false factual connotation” is problematic. 197 While a speaker does not gain immunity from adding the words “I think,”198 the Court also holds rhetorical hyperbole, parody, and

191See e.g., Ramsey, 771 S.W.2d at 121. 192 See e.g, Cantwell v. Connecticut, 310 U.S. 296, 311 (1940). 193 See Green, 11 P.3d 1078. 194 Garrison, 379 U.S at 75. 195 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). 196 Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). 197 Milkovich v. Lorain Journal, 497 U.S. 1, 20, 21 (1990). 198 Id.

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vigorous epithet worthy of protection.199 Determining what is a provable statement or what is rhetorical hyperbole is very difficult, as evidenced by the inconsistent results courts produce. Calling a judge “incompetent,” “a bully,” and “dishonest” was permissible in the Ninth Circuit because that court considered the remarks "statements of rhetorical hyperbole, incapable of being proven true or false.”200 In South Dakota, however, a lawyer who told a newspaper “the state courts were incompetent and sometimes crooked” was censured because the criticism was voiced in “precisely the manner and forum which would most likely cast doubt about the competence and integrity of the members of the judiciary without the slightest possibility that any constructive, remedial actions would result from those remarks.”201 An attorney wishing to criticize a judge must gamble as to whether a court will construe his particular statement as hyperbole or as provable. Despite the inconsistency, however, courts can mitigate the chilling effect on speech by requiring the state to prove the attorney made the criticism with actual malice.202

2. The Proper “Actual Malice” Standard Actual malice is a defamation law term of art does not mean a defendant

acted with hatred, ill will, enmity, or with a wanton desire to injure.203 Instead, actual malice requires a showing that the defendant made a defamatory statement with either knowledge that the statement was false or with reckless disregard to its falsity. The test is subjective, focusing upon the individual.204 The actual malice standard offers heightened protection to false communications because they may "contribute to the free interchange of ideas and ascertainment of truth."205 Since the Court recognizes that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,”206 and the best remedy for false or defamatory speech “is more speech, not enforced silence,"207 the Court uses a standard that provides broad protection to discussion of public affairs, even if the

199 Id. at 18-19.

200 Yagman, 55 F.3d at 1440. See also Seamaan, 508 S.W.2d at 431-32 (attorney calling judge "a midget among giants" not subject to penalty because the statement is not provable true or false). 201 In re Lacey, 283 N.W.2d 250, 252 (S.D. 1979).

202 For an early example of Sullivan in attorney disciplinary case, see Eisenberg v. Boardman, 302 F.Supp. 1360 (W.D. Wis. 1969). 203 Garrison, 379 U.S. at 73. 204 See Garrison, 379 U.S. at 73 (rejecting a reasonable person test). 205Id. 206 Abrams, 250 U.S. at 630 (Holmes, J., dissenting). 207 Whitney, 274 U.S. at 377 (Brandeis, J., concurring).

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language used is vehement or unpopular.208 It may seem peculiar to use a tort defamation standard for attorney disciplinary cases, but the wording of Model Rule 8.2 parrots word for word the language of the civil defamation cases adopting that standard, suggesting drafters intended to offer that level of protection.209 But most courts considering an attorney’s criticism of a judge depart from the subjective standard in Sullivan and create an objective standard based upon how a “reasonable attorney” would act. Proponents of the “objective” test point to the myriad of different concerns supporting the state’s interest in regulating attorney criticisms of judges. They contend that because of the compelling state interest in protecting the legal profession and judicial officers, an objective version of the test is all that is required.210 Objective test proponents also argue that policies served by defamation law and policies served by ethical restrictions on attorneys are different and should therefore not be treated similarly. For example, in Yagman, the Ninth Circuit noted:

[T]here are significant differences between the interests served by defamation law and those served by rules of professional ethics. Defamation actions seek to remedy an essentially private wrong by compensating individuals for harm caused to their reputation and standing in the community. Ethical rules that prohibit false statements impugning the integrity of judges, by contrast are not designed to shield judges from unpleasant or offensive criticism, but to preserve public confidence in the fairness and impartiality of our system of justice.211

The Ninth Circuit then stated an “objective malice standard strikes a constitutionally permissible balance between an attorney's right to criticize the judiciary and the public's interest in preserving confidence in the judicial system."212 The court defined the objective standard as "what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances" and noted an inquiry should focus "on whether the attorney had a reasonable factual basis for making the statements, considering

208 See Button, 371 U.S. at 445. 209 See Sullivan, 376 U.S. 279; Garrison, 379 U.S. at 73. 210 See Yagman, 55 F.3d at 1437.

211 Id. See also In re Hickey, 258 S.W. 417, 430 (Tenn. 1924) (noting because judges cannot defend themselves they should “receive the support of the bar against unjust criticism”). 212 Yagman, 55 F.3d at 1438.

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their nature and the context in which they were made."213 Proponents of an objective test also argue a subjective test protects attorneys no matter how outrageous the criticism so long as the attorney subjectively believed.214 Opponents seem to misunderstand the subjective test, however. Courts disliking the subjective test misconstrue it by warning it “would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth.”215 But Sullivan requires a showing of either knowing falsity or recklessness. Under it, a defendant does not automatically win by “testifying that he published with a belief that the statements were true;” an attorney may still be punished where the finder of fact determines the publication or speech was not made in good faith.216 Moreover, an attorney will not likely prevail where “allegations are so inherently improbable that only a reckless man would put them in circulation” or where the attorney purposefully avoided the truth.217 Since the subjective standard adequately protects the state interest and is less restrictive than an objective test, it is the correct standard under a strict scrutiny analysis.

The use of the subjective actual malice test finds support in prior Court precedent as well. Returning to the analogy of attorneys as public employees, in cases involving public employee speech on matters of public concern, the Court has previously utilized the subjective actual malice test. For example, in a case involving teacher speech, the Court balanced the interest of the state in protecting administration of the educational system and a teacher’s right to inform the public about educational matters by holding that the Sullivan test applies: “absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”218 This is because the “public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great that it has been held that

213 Yagman, 55 F.3d at 1437. See also Gardner, 793 N.E.2d at 432 (arguing “under the objective standard, an attorney may still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney turns out to be mistaken”); In re Chmura, 608 N.W.2d 31 (Mich. 2000). 214 West Virginia State Bar v. Farber, 408 S.E.2d 274, 285 (W.Va.1991) (noting “sincere personal belief will, in the sweet bye and bye, be an absolute defense when we all stand before the pearly gates on that great day of judgment, but it is not a defense here when respondent's deficient sense of reality inflicts untold misery upon particular individuals and damage upon the legal system”). 215 Holtzman, 577 N.E.2d at 35. 216 St. Amant v. Thompson, 390 U.S. 727, 732 (1968). 217 Id. 218 Pickering, 391 U.S. at 574.

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a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity.”219

The subjective test also addresses other problems such as the tendency “[o]n the part of judges to find speech critical of members of the bench worse or less acceptable than speech critical of others, including other public officials.220 By adopting a subjective test, the courts relieve charges of judges granting themselves special protections. “[J]udges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”221

Finally, the subjective test also recognizes that a reasonable person (or attorney) standard is inherently difficult – if not impossible -- to apply in areas where profound disagreements exist.222 The First Amendment protects speech no matter how unpopular it may be. Matters “of ‘integrity’ and ‘qualifications’ of judges do not lend themselves to standards of objective proof” and thus such “statements of opinion should never be the subject of a disciplinary proceeding.”223 Holding otherwise permits “an unreasonably chilling effect on the free speech of attorneys because any criticism of judges or judicial officers, no matter how timid, would run the real risk of being interpreted by some judge as involving his ‘integrity or qualifications.’”224 Furthermore, although policy reasons behind defamation law and attorney discipline may be dissimilar, the subjective standard protects the same First Amendment interest in both. The Supreme Court rejected a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” on the pain “of libel judgments virtually unlimited in amount” because it leads to "self-censorship."225 The Court reasoned “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even

219 Id. This rationale is limited to cases where the employee speaks out on a matter of public concern. The employee is afforded much less protection where speech is personal in nature and not of public concern. See e.g., Connick v. Meyers, 461 U.S. 138, 147 (1983). The determination of whether an issue is of public concern depends upon a myriad of factors including “content, form, and context.” Id.

220 Federal appellate judge speaks out on the First Amendment, at www.curriculumunits.com/catcherweb/federal_appellate_judge_speaks_o.htm (last visited Feb. 4, 2004). See also Freedman, supra note 14, at 737 (“[m]uch of the judicial hand-wringing about criticism of judges has more to do with judicial vanity than with judicial independence”). 221 Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting). 222 Garrison, 379 U.S. at 80. 223 Shelton, supra note 129, at 905. 224 Id. 225 Sullivan, 376 U.S. 279.

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though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so."226 The stakes, and deterrence factor, are even higher for the attorney because penalties for professional misconduct are severe. Additionally, courts are subject to making mistakes in determining what statements constitute provably false communications. The subjective test alleviates and mitigates the chilling effect caused by these mistakes through a second, significant level of protection to attorney criticisms.227

CONCLUSION

This Note argues that criticisms of judges are criticisms of political officials

and are protected under the First Amendment, subject to some caveats, because if the First Amendment protects nothing else, it protects the ability to criticize the government and its officials. Since regulation of attorney criticisms involves political speech and excises certain speech based on content, the proper level of review is strict scrutiny. Under a strict scrutiny analysis, many of the state’s “compelling” grounds used to justify silencing criticisms made by attorneys are actually, at best, shaky, and at worst pretextual. Nevertheless, attorneys should exercise caution when speaking out against judicial officials because many courts have shown marked hostility towards critical attorney speech. Until the Supreme Court steps in and provides guidance, lower courts will discipline attorneys as they see fit and there is no reason to think that they will suddenly become speech protective. Furthermore, even under a very speech protective analysis, not all attorney speech critical of judges is protected under the First Amendment. False statements of fact and comments causing substantial interference with the administration of justice are almost definitely punishable. But even when an attorney offers what is clearly an opinion, he should be careful as decisions also show hostility towards unpopular beliefs.

226 Id.

227 In truth, there may be little actual difference in the outcome in most cases between the “subjective” and “objective” tests, because the subjective test has an element of objectivity in its recklessness provision.