Kudos to FIRE for highlighting the judges who highlighted the unconstitutionality of viewpoint discrimination by a New Hampshire school district. Isn't it time that FIRE also said something substantial about the flagrant and very common viewpoint discrimination by judges?
Almost a week ago, on Aug. 23 David Lat (a member of FIRE's Advisory Council) highlighted that on Aug. 18 a veritable militia of retired federal and state judges tried to have an attorney sanctioned based expressly on viewpoint discrimination.
128 retired judges sought to have an attorney "disciplined" for his speech, and with their own words they condemned themselves (and Florida's Supreme Court and the highest courts of other states). They proved clearly and convincingly they were motivated by unconstitutional viewpoint discrimination. They repeatedly focused on speech that they thought might merely "impugn" the purported "integrity" of a judge. They focused on attorneys' "making disrespectful" so-called "attacks on judges" instead of providing mere "respectful critique" of "rulings." They repeatedly focused on "statements" that "disparage the judges," "disparaging remarks against a judge;" "disparaging comments" and “ad hominem attacks on the judiciary." Some 21 times, the judges' letter used some variation of the word "attack." Viewpoint discrimination permeated their letter and condemned them, their complaint and the courts and judges who have acted on similar sentiments and words.
The truth about the Florida rule, itself, is that it is the epitome of unconstitutional viewpoint discrimination. All such so-called "rules" of every state (targeting attorney speech that merely "impugns" the "qualifications or integrity" of actual or potential public servants) clearly and irrefutably violate our Constitution. They expressly target only criticism (not false flattery) of judges.
Regarding this issue, it is very well worth thinking about what made the Sedition Act of 1798 unconstitutional. Many people like to say the Act was unconstitutional. But very few can say why. The reason is highly relevant here.
In New York Times Co. v. Sullivan, SCOTUS discussed "the Sedition Act of 1798" without ever bothering to explain how it violated our Constitution. In fact, the Act actually did (and John Adams emphasized that it was meant to) powerfully protect criticism of our public servants. It expressly permitted (and protected) criticism that would bring any national government official "into contempt or disrepute; or to excite against them" even "the hatred of the good people of the United States" unless and until the government proved--to a JURY (of the people) beyond a reasonable doubt--first and foremost, how such speech was "false" and then also proved how it was both "scandalous and malicious."
Even so, the Act violated our Constitution--for a reason that wasn't emphasized until well after Sullivan. Now, we commonly call it "viewpoint discrimination." “Viewpoint discrimination is poison to a free society;” so now we acknowledge that “it is especially important” that courts emphasize “that the First Amendment does not tolerate viewpoint discrimination” by any public servant against any people. Iancu v. Brunetti, 588 U.S. 388, 399 (2019) (Alito, J., concurring). It “is a bedrock principle underlying the First Amendment” that “government may not prohibit the expression of an idea simply because” somebody (especially a public servant) “finds the idea” merely “offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).
Any “regulation of speech because of disagreement with the message it conveys” violates our Constitution. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Judges “target[ing]” an attorney's “particular views” commit “blatant” and “egregious” “violation[s] of the First Amendment.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Courts are “limited public forum[s]” in which judges “may not” ever “discriminate against speech on the basis of its viewpoint.” Id.
FIRE should (finally) start telling the truth about unconstitutional viewpoint discrimination to which Americans have been subjected by judges in recent years. All Americans should impugn the qualification, as well as the integrity, of any judge who contends or pretends that any attorney may be punished or penalized for any expression because it merely is disrespectful to or disparaging of a judge or merely impugns the qualifications or integrity of a judge and it merely is "unfounded."
The standard stated in all such state rules of professional conduct comes directly from New York Times Co. v. Sullivan. In Sullivan, SCOTUS unanimously emphasized "the First Amendment guarantees” establish the impropriety of imposing "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" (first and foremost) a "falsehood" and then proves that it also was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
At the same time, in Sullivan SCOTUS (foreshadowing the subsequent statements in Garrison v. Louisiana) focused specifically on criticism of judges and invoked prior precedent focusing on criticism of judges:
"Injury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. [citing Bridges v. California]. This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ [citing Pennekamp v. Florida]. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. [citing Craig v. Harney and Wood v. Georgia]."
Clearly "judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate.' " (quoting Craig v. Harney). "Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations."
Months later, in Garrison v. Louisiana, SCOTUS (again unanimously) focused squarely and directly on statements by a government attorney who did something very similar to Percival. Garrison publicly implied eight judges were inexcusably lazy or maybe even criminally corrupt. Even so, SCOTUS emphasized that judges are "public servants" and the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including judges’ “dishonesty, malfeasance, or improper motivation.”
“Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” such “statements” as have been proved to be “false” may be punished with “either civil or criminal sanctions.” Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service.
As emphasized in Milkovich v. Lorain Journal Co. in 1990, expression and communication by even a government-employed attorney “relating to matters of public concern” must be proved (by the government) to “contain” at least a “false factual connotation.” Until the government bears that burden such expression and communication must “receive full constitutional protection.” Punished speech must be proved to at least “imply” an “assertion of fact” that was proved “false.” Our Constitution requires “a federal rule that prohibits a public official from” punishing or penalizing criticism “relating” to “official conduct” “unless [someone] proves” material facts establishing how it was a “falsehood” and how it “was made” with “actual malice.” “This rule” necessarily precludes any purported “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions.” (Milkovich quoting Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (quoting Sullivan).
I commonly say that far too many judges far too commonly lie, cheat and act like common con men, including especially regarding our First Amendment rights and freedoms. This particular letter from 128 retired judges clearly and convincingly proves my point.
In New York Times Co. v. Sullivan, SCOTUS emphasized two crucial principles. First, to support the repression of expression based on its content, the government must present “proof,” and such “proof” must have “the convincing clarity which the constitutional standard demands.” Second, “[t]he power to create presumptions is not a means of escape from constitutional restrictions.”
In an even more famous decision Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), which every law student and lawyer is supposed to have read, SCOTUS re-emphasized that “the First Amendment mandates a ‘clear and convincing’ standard” of proof.
That standard of proof was copied into the law of every state (as far as I’ve seen) regarding, specifically, attorney discipline.
The Florida Bar, for example, highlights that “The burden of proof is on the [disciplinary authority] to demonstrate with clear and convincing evidence that a rule violation occurred.” The Florida Bar v. McCain, 361 So. 2d 700, 706 (Fla. 1978). See also Standards §§1.3(c), 1.3 cmt.
The 128 retired judges highlighted how the judges on the Florida Supreme Court knowingly and willfully violate our Constitution and they even deceitfully pretend they had the authority to fabricate a rule or ruling that (somehow) authorized them to violate our Constitution and their own rule and their own precedent regarding who must bear the burden of proof and by what quantum of evidence.
“The [Florida] supreme court” purportedly “has explained that” it “utilizes an objective standard as to ‘whether the attorney had an objectively reasonable factual basis for making the statements.’ Once there is ‘evidence establishing that a lawyer made statements concerning the qualifications or integrity of a judge,” somehow “the burden” magically “shifts to the [attorney] to provide an objectively reasonable factual basis for making the statements.’ ”
The 128 retired judges purported to support the foregoing with the following in a footnote that highlighted how many judges in multiple states violate our Constitution (and their oaths to support it).
The Fla. Bar v. Ray, 797 So. 2d 556, 558–59 (Fla. 2001); Yeyille v. Speigel, 373 So. 3d 1238, 1240 (Fla. Dist. Ct. App. 2023) (“When determining whether the rule was violated, the question is not whether the statement is false, but whether [the attorney] had an objectively reasonable factual basis for making the statement”); see also In re Cobb, 445 Mass. 452, 469 (2005) (“A majority of State courts that have considered the question have concluded that the standard is whether the attorney had an objectively reasonable basis for making the statements”); Idaho State Bar v. Topp, 129 Idaho 414 (1996), cert. denied, 520 U.S. 1155 (1997); Matter of Terry, 271 Ind. 499 (1979), cert. denied sub nom. Terry v. Indiana Supreme Court Disciplinary Comm'n, 444 U.S. 1077 (1980). 55 Fla. Bar v. Jacobs, 370 So. 3d 876, 883-884 (Fla. 2023); Fla. Bar v. Patterson, 257 So. 3d 56, 62 (Fla. 2018) (“The burden is on the lawyer who made the statement to produce a factual basis to support the statement”). 56 Monyak, supra nt. 7.
I challenge anyone in this country to try to prove that the conduct of such judges and courts is not an absurdly deceitful violation of the Fourteenth Amendment, which expressly emphasizes that “No State” has any power whatsoever to purport to either “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (including those in the First Amendment) or “deprive any person of life, liberty, or property, without due process of law” (e.g., regarding who must bear the burden of proof by what quantum of evidence) or “deny to any person within its jurisdiction the equal protection of the laws” (e.g., regarding who must bear the burden of proof by what quantum of evidence).
Kudos to FIRE for highlighting the judges who highlighted the unconstitutionality of viewpoint discrimination by a New Hampshire school district. Isn't it time that FIRE also said something substantial about the flagrant and very common viewpoint discrimination by judges?
Almost a week ago, on Aug. 23 David Lat (a member of FIRE's Advisory Council) highlighted that on Aug. 18 a veritable militia of retired federal and state judges tried to have an attorney sanctioned based expressly on viewpoint discrimination.
128 retired judges sought to have an attorney "disciplined" for his speech, and with their own words they condemned themselves (and Florida's Supreme Court and the highest courts of other states). They proved clearly and convincingly they were motivated by unconstitutional viewpoint discrimination. They repeatedly focused on speech that they thought might merely "impugn" the purported "integrity" of a judge. They focused on attorneys' "making disrespectful" so-called "attacks on judges" instead of providing mere "respectful critique" of "rulings." They repeatedly focused on "statements" that "disparage the judges," "disparaging remarks against a judge;" "disparaging comments" and “ad hominem attacks on the judiciary." Some 21 times, the judges' letter used some variation of the word "attack." Viewpoint discrimination permeated their letter and condemned them, their complaint and the courts and judges who have acted on similar sentiments and words.
The truth about the Florida rule, itself, is that it is the epitome of unconstitutional viewpoint discrimination. All such so-called "rules" of every state (targeting attorney speech that merely "impugns" the "qualifications or integrity" of actual or potential public servants) clearly and irrefutably violate our Constitution. They expressly target only criticism (not false flattery) of judges.
Regarding this issue, it is very well worth thinking about what made the Sedition Act of 1798 unconstitutional. Many people like to say the Act was unconstitutional. But very few can say why. The reason is highly relevant here.
In New York Times Co. v. Sullivan, SCOTUS discussed "the Sedition Act of 1798" without ever bothering to explain how it violated our Constitution. In fact, the Act actually did (and John Adams emphasized that it was meant to) powerfully protect criticism of our public servants. It expressly permitted (and protected) criticism that would bring any national government official "into contempt or disrepute; or to excite against them" even "the hatred of the good people of the United States" unless and until the government proved--to a JURY (of the people) beyond a reasonable doubt--first and foremost, how such speech was "false" and then also proved how it was both "scandalous and malicious."
Even so, the Act violated our Constitution--for a reason that wasn't emphasized until well after Sullivan. Now, we commonly call it "viewpoint discrimination." “Viewpoint discrimination is poison to a free society;” so now we acknowledge that “it is especially important” that courts emphasize “that the First Amendment does not tolerate viewpoint discrimination” by any public servant against any people. Iancu v. Brunetti, 588 U.S. 388, 399 (2019) (Alito, J., concurring). It “is a bedrock principle underlying the First Amendment” that “government may not prohibit the expression of an idea simply because” somebody (especially a public servant) “finds the idea” merely “offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).
Any “regulation of speech because of disagreement with the message it conveys” violates our Constitution. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Judges “target[ing]” an attorney's “particular views” commit “blatant” and “egregious” “violation[s] of the First Amendment.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Courts are “limited public forum[s]” in which judges “may not” ever “discriminate against speech on the basis of its viewpoint.” Id.
FIRE should (finally) start telling the truth about unconstitutional viewpoint discrimination to which Americans have been subjected by judges in recent years. All Americans should impugn the qualification, as well as the integrity, of any judge who contends or pretends that any attorney may be punished or penalized for any expression because it merely is disrespectful to or disparaging of a judge or merely impugns the qualifications or integrity of a judge and it merely is "unfounded."
The standard stated in all such state rules of professional conduct comes directly from New York Times Co. v. Sullivan. In Sullivan, SCOTUS unanimously emphasized "the First Amendment guarantees” establish the impropriety of imposing "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" (first and foremost) a "falsehood" and then proves that it also was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
At the same time, in Sullivan SCOTUS (foreshadowing the subsequent statements in Garrison v. Louisiana) focused specifically on criticism of judges and invoked prior precedent focusing on criticism of judges:
"Injury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. [citing Bridges v. California]. This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ [citing Pennekamp v. Florida]. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. [citing Craig v. Harney and Wood v. Georgia]."
Clearly "judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate.' " (quoting Craig v. Harney). "Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations."
Months later, in Garrison v. Louisiana, SCOTUS (again unanimously) focused squarely and directly on statements by a government attorney who did something very similar to Percival. Garrison publicly implied eight judges were inexcusably lazy or maybe even criminally corrupt. Even so, SCOTUS emphasized that judges are "public servants" and the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including judges’ “dishonesty, malfeasance, or improper motivation.”
“Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” such “statements” as have been proved to be “false” may be punished with “either civil or criminal sanctions.” Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service.
As emphasized in Milkovich v. Lorain Journal Co. in 1990, expression and communication by even a government-employed attorney “relating to matters of public concern” must be proved (by the government) to “contain” at least a “false factual connotation.” Until the government bears that burden such expression and communication must “receive full constitutional protection.” Punished speech must be proved to at least “imply” an “assertion of fact” that was proved “false.” Our Constitution requires “a federal rule that prohibits a public official from” punishing or penalizing criticism “relating” to “official conduct” “unless [someone] proves” material facts establishing how it was a “falsehood” and how it “was made” with “actual malice.” “This rule” necessarily precludes any purported “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions.” (Milkovich quoting Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (quoting Sullivan).
I commonly say that far too many judges far too commonly lie, cheat and act like common con men, including especially regarding our First Amendment rights and freedoms. This particular letter from 128 retired judges clearly and convincingly proves my point.
In New York Times Co. v. Sullivan, SCOTUS emphasized two crucial principles. First, to support the repression of expression based on its content, the government must present “proof,” and such “proof” must have “the convincing clarity which the constitutional standard demands.” Second, “[t]he power to create presumptions is not a means of escape from constitutional restrictions.”
In an even more famous decision Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), which every law student and lawyer is supposed to have read, SCOTUS re-emphasized that “the First Amendment mandates a ‘clear and convincing’ standard” of proof.
That standard of proof was copied into the law of every state (as far as I’ve seen) regarding, specifically, attorney discipline.
The Florida Bar, for example, highlights that “The burden of proof is on the [disciplinary authority] to demonstrate with clear and convincing evidence that a rule violation occurred.” The Florida Bar v. McCain, 361 So. 2d 700, 706 (Fla. 1978). See also Standards §§1.3(c), 1.3 cmt.
The 128 retired judges highlighted how the judges on the Florida Supreme Court knowingly and willfully violate our Constitution and they even deceitfully pretend they had the authority to fabricate a rule or ruling that (somehow) authorized them to violate our Constitution and their own rule and their own precedent regarding who must bear the burden of proof and by what quantum of evidence.
“The [Florida] supreme court” purportedly “has explained that” it “utilizes an objective standard as to ‘whether the attorney had an objectively reasonable factual basis for making the statements.’ Once there is ‘evidence establishing that a lawyer made statements concerning the qualifications or integrity of a judge,” somehow “the burden” magically “shifts to the [attorney] to provide an objectively reasonable factual basis for making the statements.’ ”
The 128 retired judges purported to support the foregoing with the following in a footnote that highlighted how many judges in multiple states violate our Constitution (and their oaths to support it).
The Fla. Bar v. Ray, 797 So. 2d 556, 558–59 (Fla. 2001); Yeyille v. Speigel, 373 So. 3d 1238, 1240 (Fla. Dist. Ct. App. 2023) (“When determining whether the rule was violated, the question is not whether the statement is false, but whether [the attorney] had an objectively reasonable factual basis for making the statement”); see also In re Cobb, 445 Mass. 452, 469 (2005) (“A majority of State courts that have considered the question have concluded that the standard is whether the attorney had an objectively reasonable basis for making the statements”); Idaho State Bar v. Topp, 129 Idaho 414 (1996), cert. denied, 520 U.S. 1155 (1997); Matter of Terry, 271 Ind. 499 (1979), cert. denied sub nom. Terry v. Indiana Supreme Court Disciplinary Comm'n, 444 U.S. 1077 (1980). 55 Fla. Bar v. Jacobs, 370 So. 3d 876, 883-884 (Fla. 2023); Fla. Bar v. Patterson, 257 So. 3d 56, 62 (Fla. 2018) (“The burden is on the lawyer who made the statement to produce a factual basis to support the statement”). 56 Monyak, supra nt. 7.
I challenge anyone in this country to try to prove that the conduct of such judges and courts is not an absurdly deceitful violation of the Fourteenth Amendment, which expressly emphasizes that “No State” has any power whatsoever to purport to either “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (including those in the First Amendment) or “deprive any person of life, liberty, or property, without due process of law” (e.g., regarding who must bear the burden of proof by what quantum of evidence) or “deny to any person within its jurisdiction the equal protection of the laws” (e.g., regarding who must bear the burden of proof by what quantum of evidence).