Julie Hilden

Should Lawyers Be Allowed to Blog Critically About Judges?

By JULIE HILDEN
Monday, September 21, 2009

Recently, The New York Times covered the case of Florida attorney Sean Conway, who suffered a reprimand from the Florida Bar when he called a judge an "Evil, Unfair Witch" on a blog frequented by criminal defense attorneys such as himself.

Importantly, Conway's harsh, childish words were coupled with some reasoned substantive points: Conway opined that the judge at issue provided far too little time (one lone week) for trial preparation in criminal cases. He added that she thus forced lawyers to convince their clients to waive their Florida speedy trial rights, in order to gain more preparation time – meaning that those rights, in effect, weren't treated as rights at all, but rather as privileges, to be revoked at will.

The case went to the Florida Supreme Court, where the ACLU submitted an amicus brief supporting Conway. Despite strong arguments by the ACLU, the Florida Supreme Court still affirmed the Bar's imposition of a reprimand and a $1200 fine based on Conway's remarks. (Conway agreed to that punishment, most likely simply so that he could avoid a worse penalty, such as suspension or disbarment.)

The case raises an important question: Can state bars constitutionally forbid attorneys from blogging their negative opinions about judges, or do they infringe First Amendment rights by doing so?

Courtroom Speech Restrictions that Have Been Upheld Have Very Different Purposes from the Rule at Issue

To begin, it's important to distinguish this kind of free-speech restriction from others that courts impose that are clearly constitutional – because they are driven by the rationale of protecting the integrity of judicial and jury decision-making.

For instance, courts can constitutionally impose gag orders on attorneys in a case, for fear of poisoning the jury pool. Courts also routinely forbid lawyers from speaking directly to jurors except while delivering their arguments; forbid jurors from speaking to each other except during deliberations; forbid jurors from speaking to any outside person about the case; and forbid attorneys from speaking to the judge unless the other side's attorneys are also present.

Attorneys also are prohibited from presenting false testimony -- a rule that leads to conundrums for criminal defense lawyers about when a lawyer truly knows (rather than simply suspecting) that her client is lying. This prohibition is imposed under the rationale that an attorney who appears before the court to present testimony is also an "officer of the court," and thus has a duty of candor to the tribunal.

Like the other speech-control rules above, this rule has the rationale of improving the quality of decision-making—in this case, of ensuring that a jury or judge's decision is not poisoned by testimony that is known to a certainty to be false by the very person who is presenting that testimony to the court.

Attorneys' Officer-of-the-Court Role Does Not Justify Blogging Restrictions

A legal expert quoted in the Times article, Professor Michael Downey, suggested that the same officer-of-the-court theory could also justify the fine imposed on Conway for his blog comments, too, because "When you become an officer of the court, you lose the full ability to criticize the court."

I strongly disagree with that logic. Indeed, I believe that silencing criticism of the judges turns the rationale behind other speech-control rules – including the false-testimony/officer-of-the-court rule -- on its head. Presenting false testimony or making false representations to the court raises the risk that a ruling or verdict will be unjust – an outcome that seriously damages the court and judicial system. By direct contrast, however, criticism of judges may actually improve the judicial system in important ways. As lawyers often say, sunlight is the best disinfectant. Not all criticism of judges and their rulings by attorneys will be useful or constructive, but some surely will.

Importantly, too, unlike the other speech restrictions noted above, bans on attorneys' blogging about judges typically are not based on the idea that judges' decision-making will be adversely affected. Generally, we believe that our judges are wise and good enough not to simply punish the attorneys who criticize them by ruling against those attorneys' clients in the future. Judges often face published criticism of their decisions and rulings in many venues, such as editorial pages, and one would hope that such criticism causes them to be more thoughtful, not more vengeful.

Let's suppose, too, that some small-minded judges would, in fact, change their rulings in order to punish the attorneys who had criticized them in the past. Even if so, it's not clear why this misconduct by the judges should somehow be laid at the criticizing attorneys' door and result in bar sanctions. Possibly, attorneys should need to disclose to potential clients that they have made critical comments about a judge to which the case has assigned – for a rational client surely might take this factor into account. But imposing a permanent gag on attorneys, banning them from criticizing judges, is a much more extreme solution than simply imposing a client-disclosure requirement when attorney do venture to comment.

Assuming clients are fully informed of what attorneys have said, then what justification is there for faulting – let alone punishing – an attorney for criticizing a judge? The ability to criticize government officials – even the President – is a right Americans truly cherish. And silencing a class of persons, attorneys, whose criticism is apt to be especially well-informed is a particular shame.

Even If Bars Shouldn't Regulate What Lawyers Say About Judges, Should They Regulate How Criticisms Are Phrased?

Readers may object, however, that even if what Conway said should be constitutionally-protected, the words he chose to use were unnecessary and offensive. Surely, it's hard to disagree that Conway could have chosen much more temperate and mature language, and he ought to be ashamed of the choices he made. He surely owes the judge a personal apology for his wording.

Yet there are good reasons for state bars to refrain from censoring lawyers' phrasing and seeking to control the wording of their criticisms. For example, a rule that tried to control the tone and phrasing of lawyers' comments about judges would risk chilling valuable speech, unless it contained a laundry list of prohibited words – in which case, it would be ridiculous and, inevitably, ineffective as speakers chose other words to circumvent the list.

Attorney bloggers who cross the line when it comes to wording should face backlash, but from their more decorous colleagues and fellow bloggers -- not from a quasi-governmental entity such as the bar, and not with the blessing of a governmental entity like a state supreme court.

Conway's blog entry itself makes the case against regulating attorneys' tone or wording. His "Evil, Unfair Witch" comment is an excellent example of speech that goes far over the line in its wording. Yet his point about speedy-trial rights – a point that, if listened to, could lead to changes in statutes or in judges' rules or practices – exemplifies the kind of worthwhile speech that could be chilled if bar rules leave attorneys unclear as to what they can and cannot say, and if attorneys decide, as a result, to stay silent.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.