Legal News

When Talking Smack About a Judge, Proceed With Caution

By Ashby Jones

Question: When is publicly railing out against a judge not allowed? Answer: When you’re a lawyer.

Over the weekend, the NYT’s John Schwartz tackled this issue by shining a light on a situation that seems to be coming up more and more: disgruntled lawyers using social-media sites (Facebook, Twitter and the like) to criticize judges’ behaviors.

The lead anecdote to Schwartz’s article:

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an "Evil, Unfair Witch."

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Conway's statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Conway paid $1,200.

Huh. On first blush, it seems to us a pretty straightforward abrogation of one’s First Amendment rights. But Schwartz quotes Michael Downey, who teaches legal ethics at the Washington University law school: "When you become an officer of the court, you lose the full ability to criticize the court.”

For his part, Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel's criticism of what it called an "arrogant, discourteous and impatient" manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.)

But the State Supreme Court ultimately accepted Conway’s earlier reprimand agreement with the bar, which had argued in its brief to the court that the online "personal attack" was "not uttered in an effort to expose a valid problem" with the judicial system, and so the statements "fail as protected free speech under the First Amendment."

A couple years ago, we blogged on an article written by University of Tennessee law professor Benjamin Barton (click here for our blog post), which asked whether judges, in their rulings, favor the interests of the legal profession. It’s hard not to think of Barton’s article whenever we read tale of judges ruling on decisions that affect other judges. In light of Schwartz’s article, we think it’s probably worth yet another look.

Full post as published by Law Blog - WSJ.com on September 14, 2009 (boomark / email).