|A free speech right to impugn judicial integrity in court proceedings… Boston College Law Review 2009 [Vol. 51 : 363] | by Associate Professor Margaret Tarkington, Associate Professor of Law, J Reuben Clark Law School, Brigham Young University) …
ABSTRACT: This Article examines why a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and legal rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right for the attorney preserves litigants’ access to courts and due process rights. Previous scholarly arguments, which are based on analogies to other areas of limited First Amendment protection, fail to account for the protection of litigant rights, the role of attorneys in our adversary system, and the constitutionally required role of our judicial system. By curbing free speech in the presentation of claims, the judiciary undermines the adversarial system and the role of attorneys therein, as well as undermining the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.
As guardians of constitutional rights, the judiciary often addresses and demonstrates its commitment to such important constitutional values as due process, court access, and free speech. Indeed, as the U.S. Supreme Court reaffirmed in 2009 in Caperton v A.T: Massey Coal Co., “[i]t is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process,’” and such fairness includes a fair and impartial adjudicator. [Footnotes deleted] Nevertheless, the judiciary does not always appreciate having its own integrity questioned. Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established by the U.S. Supreme Court in the seminal 1964 case New York Times Co. v Sullivan for punishing speech regarding government officials. The punishment imposed for impugning judicial reputation has often been severe, with suspension from the practice of law not uncommon and, in at least one state, mandatory. Although courts have sanction attorneys regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech – when made in court proceedings – is entitled to little, if any, constitutional protection. Indeed, in its 1991 plurality opinion, Gentle v State Bar of Nevada, a majority of the U.S. Supreme Court stated in dicta: “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Although Gentile did not involve any in-court speech or speech filed in a court proceeding, courts and commentators have relied on Gentile for the proposition that attorneys have little or no free speech rights in judicial proceedings, and have thereby rejected claims of First Amendment protection for attorney speech impugning judicial integrity that is contained in court filings. Despite the relative consensus to the contrary, it is my contention that attorneys have a free speech right to impugn judicial integrity in court filings and proceedings. [Emphasis added].
Notably in a number of cases where attorneys have been sanction for their speech, the arguments the attorneys made, though perhaps inartful and at times exaggerated, were relevant to a claim, argument or motion before the court. Attorneys have been sanctioned in both criminal and civil cases for impugning the judicial integrity for statements made in motions seeking recusal or disqualification of a judge, claims filed against judges …
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… As the U.S. Court of Appeals for the Fifth Circuit held in United States v Brown, when it reversed a district court’s suspension and fine of an attorney for an alleged violation of MRPC 8.2: “Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” [Emphasis added] Unfortunately, there have been a number of cases where comments have been so misconstrued and sanctions imposed.
Moreover, allowing attorneys to raise such claims preserves the role of the attorney in the American adversarial system, where each side is required to raise the arguments of its own clients. A viewpoint-based prohibition on court speech is particularly problematic in the adversarial system because it ensures that only one side’s view of the matter will be heard. Although it has been argued that speech regarding the judiciary is punishable in part because the judiciary does not generally respond to such criticisms, that concern is largely superficial in the context of court proceedings. Notably, the judiciary, in response to allegations of judicial bias or incompetence raised in court filings, can respond to such allegations and address them in the form of an opinion. Moreover, the opposing side will often have an incentive to articulate the opposing viewpoint and thus to vindicate the judiciary’s reputation. Although judges may “not take to the talk shows to defend themselves,” it is likely that an opposing party who does not want a new trial granted, for example, will vigorously advocate on behalf of the judge and the fairness of the underlying proceedings. The judiciary need not take up the soapbox or punish the attorney who questioned the integrity of the proceedings to vindicate its reputation. Further, the adversary system is intended to help ensure the fairness of the proceedings by allowing both sides to air their views of the facts, law, and proceedings. By silencing only one side and one viewpoint, the premise and purpose of the adversary system is frustrated. [Emphasis added]
Somewhat ironically, to the extent that the judiciary deters and punishes speech questioning the integrity of an underlying proceeding, it also frustrates its own role in the proper functioning of the judicial system. As pointed out in by the U.S. Supreme Court in Legal Services Corp v Velazquez, stifling “the analysis of certain legal issues” and “truncating presentation to the courts … prohibits speech and expression upon which the courts must depend for the proper exercise of the judicial power.” This is because the judiciary relies on attorneys to bring arguments and claims – including those of constitutional magnitude – to it for resolution. The judiciary does not investigate and determine on its own whether a particular party has been afforded due process. The judiciary can only examine and rectify such problems when attorneys raise the problems for judicial review. Nevertheless, the judiciary serves a special role in preserving and protecting constitutional rights when abridged by the government, and ought to be particularly jealous of ensuring that it fulfills these constitutional imperatives. Yet, the judiciary cannot ensure that due process is being afforded by judges when it turns a blind eye to possible judicial deficiencies in providing due process, and even enforces that blindness through punishment. [Emphasis added]
Beyond all this, the judiciary does not need to carve out an exception to Sullivan to preserve its legitimate judicial functions. It already has rules that are both content-neutral and viewpoint-neutral, and supported by significant interests in the fair and just resolution of cases that require attorneys to have a reasonable basis in fact for assertions made in court proceedings. Courts can use those rules and standards, and can enforce them to the same extent when assertions concern non-judicial actors. Thus, employing the Sullivan standards in applying MRPC 8.2 or other rules protecting judicial reputation does not give attorneys free license to fill their court filings with irrelevant and frivolous claims of judicial corruption and bias. Rather, using the Sullivan standard for MRPC 8.2 ensures that the judiciary punishes speech that is irrelevant for being irrelevant; and punishes speech that disrupts a judicial proceeding for that disruption. This in turn ensures that the judiciary is in compliance with the Free Speech Clause when it punishes speech to protect its own reputation.
In the words of Justice Thurgood Marshall:
“It would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”
Courts that carve out an exception to Sullivan for themselves – even in the context of court proceedings – frustrate the protection of the underlying constitutional and other legal rights of litigants, the relationship between attorney and client, and the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.
You can download a printer friendly copy of Associate Professor Margaret Tarrington’s Paper “A free speech right to impugn judicial integrity in court proceedings”, here.
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(in the) Australian House of Representatives