I’m as American as apple pie.
In the blog post by Jamison Koehler that I wrote about here, Jamison remarked:
Six or so months ago I wrote about the malleability of truth at trial. While I have since taken down this blog entry on the advice of Virginia bar counsel, I continue to believe that the objective truth is rarely, if ever, introduced at trial.
If Virginia bar counsel advised you to take down a blog entry “about the malleability of truth at trial,” and you acted on such advice, I’m probably not long for this profession based on many of my own blog entries. Yet, believe it or not, I believe everything I’ve written is protected by the First Amendment, and don’t go out of my way to court trouble, and do give some thought to whatever uncertain and slippery line might be out there in the ether. It seems the real danger area is appearing to call into question the “integrity” of a specific judge, which I try to steer clear of. The rules of professional conduct, at least in my state, forbid 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.” Supposedly, though, we’re still allowed to criticize judicial decisions. But doesn’t any such criticism — to the degree it asserts the decision is contrary to the law and/or the facts — implicitly concern either the qualifications or the integrity of the judge(s) making the decision?
[I mean, what if I were to say, as the Indiana Supreme Court recently said about a decision by a local trial judge, that “there is not a single shred of evidence” supporting a judge’s decision? How different, really, would that be from what got this Indiana attorney disciplined by the Indiana Supreme Court?]
Jamison replied to my comment:
I have read your blog, and, yes, depending on the rules in Illinois [I assume he meant Indiana], you do seem to skate much closer to the edge than I.
The Indiana Rule of Professional Conduct I quoted in my comment above is Rule 8.2. The official “Comment” on this Rule states:
Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
Here’s my dilemma: The very purpose of this blog is to do my small part to “undermine public confidence” in the State — which happens to be a time-honored goal of a whole lot of American political speech, dating all the way back to Thomas Paine’s undermining of the colonial public’s confidence in the British Empire. And I’ve got news for you: The judicial branch is very much a part of the State.
I’ve recently said here that the President of the United States is a “contemptible hypocrite.” I’ve also recently said here of certain members of the Indiana legislature that they “make me sick” and are either “ignorant . . . rubes . . . or something far worse.” But I don’t believe I’ve said on this blog anything similar about any specific, identifiable judges. I haven’t, for example, said here anything as defamatory as what Indiana Governor Mitch Daniels (a member of the Indiana Bar) said when he publicly called a decision by the Indiana Court of Appeals “transparently partisan.” (The Indiana Disciplinary Commission, so far as I know, has declined to discipline the Governor for those statements.) I haven’t on this blog said about any specific, identifiable judges what Justice Scalia said about his fellow judges on the U.S. Supreme Court when he wrote in a dissenting opinion that “[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”
What I have done here is to try to “undermine public confidence in the administration of justice.”
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