Judges to blogging lawyers: Don’t call us “Evil, Unfair Witches” or we’ll put a hex on you.
The New York Times has an important story today that publicizes how lawyers aren’t as free as others to speak their minds about the legal system and those who administer it, and how the popularity of online social media among lawyers and non-lawyers alike is highlighting that disparity. Particularly because practicing lawyers are naturally more knowledgeable than others about the legal system and those who administer it in their communities, this unequal treatment should trouble everyone who cares about the First Amendment and holding public officials accountable.
The NYT story is unfortunately padded with some recycled accounts of lawyers who used social media to do some genuinely stupid and indefensible things — revealing confidential information about clients in blog posts, blogging the details of a case while serving as a juror, partying all week and describing it on Facebook after requesting a trial delay because of a death in the family — but what the lede’s protagonist got in trouble for is in a fundamentally different category. What Ft. Lauderdale lawyer Sean Conway did was call a certain judge, Cheryl Aleman, an “Evil, Unfair Witch” in this blog post.
Did the shoe not fit? Non-lawyer readers will have to come to their own conclusions, since my unalienable right to speak my own mind on such matters is not as protected as theirs. According to the NYT story and Mr. Conway’s blog post, Ms. Aleman “regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.” As soon as the blog post exposed this practice she stopped it. Moreover, Ms. Aleman was herself publicly reprimanded in 2008 by the Florida Supreme Court for conducting herself towards attorneys defending a death penalty case in a manner that was “arrogant, discourteous and impatient” and that “erodes public confidence in the integrity and impartiality of the judiciary.”
To the credit of the Florida Supreme Court, even though Mr. Conway initially consented to a reprimand after being charged with a disciplinary violation for his online statements, the Court demanded briefs on the obvious First Amendment issues. But after putting him through the trouble the Court concluded at the end of the day that Mr. Conway’s “personal attack” was “not uttered in an effort to expose a valid problem” with the judiciary and therefore “fail[ed] as protected free speech under the First Amendment.” The Court imposed the reprimand and a $1200 fine after all.
Maybe Mr. Conway would have been better off, and could have persuaded the Court that his speech was “uttered in an effort to expose” what was clearly a valid problem, if he had expressed his speech in an op-ed in the local newspaper instead of posting it on a blog read mostly by other lawyers. Maybe he could have avoided discipline if instead of calling Ms. Aleman an evil, unfair witch he only said that she acted like an evil, unfair witch. After all, that’s what the Florida Supreme Court itself essentially said about Ms. Aleman when it publicly reprimanded her in 2008.
Should our First Amendment rights depend upon such fine and slippery distinctions? I don’t think so.
Mr. Conway’s counsel in the displinary proceedings, Fred Haddad, is one to take the bull by the horns. His comment: “There’s absolutely no reason that politicians, and that’s all judges are here in Broward County, aren’t open to criticism. . . . We’ve got a [Florida Bar] grievance committee that can’t even conceptualize the First Amendment. You’re dealing with a group of people that are entrenched in protecting each other.”
Although the effect of Mr. Haddad’s comment, like Mr. Conway’s blog post, is to undermine public confidence in the integrity and impartiality of the judiciary, Mr. Haddad should have nothing to fear from the grievance committee since his comment was published not on a blog but in the South Florida Sun Sentinel.
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I think the judicialsystem should be exposed for what it is! Judges do tend to use their power not in a non judgemental – unbias manner, but in a manner that is arrogant and a very judgemental manner. Besides our health care system needing an over haul so does our judicial system. No one realizes how unfair our system is until they are thrown in it. I feel that the media also contributes to this and is fearful of exposing the system. Both lawyers and judges need to be held accountable for their actions both in the court room and out of it.
1Beautiful post. I blogged about this NYT article also:
http://willworkforjustice.blogspot.com/2009/09/should-state-bars-shield-judges-from.html
I would say more, but it’s chilly in here…you know, as in “chilled” speech? 🙂
2Censoring criticism of judges is rarely about protecting the client or vulnerable people. These laws against criticizing judges are just to protect the profession’s own self-importance and unbridled ego.
3