Friday, April 4, 2014

Indiana's Terry Case Laid Groundwork for Disciplining Attorneys for Judicial Criticism Despite First Amendment

Indiana's primary is little more than a month away.  Candidates for several offices will be on the ballot, including people running for county circuit and superior courts, the trial courts in Indiana's judicial system.  How does a voter find out about those judicial candidates?  The primary source would be the attorneys who practice in those courts and ask them their opinion of the judges.

However, attorneys are not free to speak their minds when it comes to judges and judicial candidates. In Indiana, if an attorney dares to offer a negative opinion, such as that a judge lacks temperament, doesn't prepare adequately for trials and hearings, or seems biased towards the prosecution in criminal cases, that attorney can be prosecuted for a violation of Disciplinary Rule 8.2 and be suspended, even disbarred.

But what about the First Amendment?   Doesn't the Free Speech clause protect that speech?
The late Lendall B. Terry

Believe it or not, despite ample U.S. Supreme Court precedent to the contrary, Indiana says "no."

To find out how Indiana arrived at that position, one needs to turn back the clock to the 1970s and travel to Versailles, the county seat of Ripley County, in southeast Indiana. In 1972, Terry was elected Ripley County Circuit Court judge  Within a couple years the situation between Terry and the Ripley County bar had so deteriorated that the attorneys in that county filed a formal complaint with the Supreme Court Disciplinary Commission (back the Commission disciplined attorneys and judges) asking for the judge be removed for several acts of misconduct. Over strong dissents from Justices DeBruler and Prenctice, the Indiana Supreme Court in a 1975 opinion written by Justice Hunter voted 3-2 to remove Judge Terry from the bench.

That wasn't the end of former Judge, now private attorney, Lendall B. Terry's brush with the Disciplinary Commission.  Terry began publishing and distributing in Ripley County a newspaper called "Voice Against Corruption" accusing government officials of being involved in illegal activity.  Terry also asserted in correspondence directed to public officials of the state that Justice Hunter had conspired with attorneys and others individuals in Ripley County to cover up the criminal activity of a person named William Greeman.  Terry asserted that was what motivated Hunter to suspend him. 

Terry was charged with misconduct under a previous disciplinary rule that regulated criticism of judicial officials by attorneys, a rule that has essentially been replaced by Rule 8.2 of Indiana's Rules of Professional Conduct, which new rules were adopted in the middle 1980s.  Terry responded that he had reasonable suspicion to believe that a conspiracy had been formed to protect William Greeman and that his letters to public officials accusing Justice Hunter of misconduct was protected by the First Amendment to the Constitution.

The remaining four justices of the Indiana Supreme Court were faced with the situation that a colleague of theirs on the Court had been accused of being involved in the worst sort of conduct, but the speech was protected by the First Amendment as interpreted in New York Times v. Sullivan.     That was when the Indiana Supreme Court came up with the novel theory that he First Amendment does not apply to attorney criticism of judges, a theory that allowed the justices to get around the requirement set forth by the New York Times v. Sullivan requirement that actual malice is required to sanction speech critical of public officials. As to the question of constitutional protection, the Respondent argues that his comments and speech were permitted under the First Amendment; it is his further contention that the cases sounding in libel and slander are persuasive and instructive in determining the standard of misconduct to be applied in this case. We do not concur in this analysis.

The Respondent is charged with professional misconduct, not defamation. The societal interests protected by these two bodies of law are not identical. Defamation is a wrong directed against an individual and the remedy is a personal redress of this wrong. On the other hand, the Code of Professional Responsibility encompasses a much broader spectrum of protection. Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations. In the past, this Court has noted that a disciplinary proceeding stands independent of the course of litigation from which acts of misconduct may arise. In re Crumpacker (1978), Ind., 383 N.E.2d 36; In re Wireman (1977), Ind., 367 N.E.2d 1368. This independence is predicated on the unique nature of the interests protected through the disciplinary process.

In the present case, the Respondent is charged with making false accusations against a Judge. This prohibition touches the very core of the judicial process. Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public's confidence in an impartial adjudicatory process.

Matter of Terry, 394 N.E.2d 94, 95-96 (Ind. 1979)

In short, the Terry theory is that attorney speech critical of judges deserves no protection whatsoever under the First Amendment because the "societal interest in the public's confidence in an impartial adjudicatory process" is so important that the First Amendment doesn't protect attorney speech critical of judges.  The Indiana Supreme Court emphasized that its conclusion the First Amendment didn't apply was based not on the need to protect, the judge, but rather to protect the public ("society as a whole") which would be harmed if an attorney had free speech rights to criticize judges just like other public officials.

What U.S. Supreme Court precedent did the Indiana Supreme Court rely on in Terry to carve out of the Free Speech Clause an exception for attorney speech critical of judges?  Absolutely none.  There is no U.S. Supreme Court precedent which supports the conclusion that attorneys speech critical of judges is not deserving of the same free speech protection as attorney criticism of any other public official.  Justice Hugo Black in 1951 considered and rejected the Terry notion that restriction on speech critical of judges actually protects the judiciary:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."
Bridges v. California, 314 U.S. 252, 270-271 (1941).
In 1991, Supreme Court Justice Kennedy rejected the Terry rationale that disciplinary rules can be used to discipline an attorney for speech that would otherwise be protected by the First Amendment.
At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law….. We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.
Gentile v. State Bar of Nev., 501 US 1030, 1054 (U.S. 1991)
Kennedy rejected the notion that attorney speech could be limited because attorneys are more persuasive when talking about the judicial branch:
To the extent the press and public rely upon attorneys for information because attorneys are well informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.
Gentile, which dealt with an attorney making public statements about an ongoing trial, is the last attorney free speech case considered by the United State Supreme Court.  Although the Court was sharply divided and featured two floating majority opinions, the justices were united in saying attorney speech is protected by the First Amendment.  Justice Rehnquist, the author of the other majority opinion in Gentile, outlined the narrow circumstance under which an attorney's constitutionally protected free speech rights can be limited by disciplinary rules:
When a state regulation implicates First Amendment rights, the Court must balance those interests against the State's legitimate interest in regulating the activity in question. See, e. g., Seattle Times, supra, at 32. The "substantial likelihood" test embodied in Rule 177 is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State's judicial system, and it imposes only narrow and necessary limitations on lawyers' speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by "impartial" jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. See, e. g., Sheppard, 384 U. S., at 350-351; Turner v. Louisiana, 379 U. S. 466, 473 (1965) (evidence in criminal trial must come solely from witness stand in public courtroom with full evidentiary protections). Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing such costs on the judicial system and on the litigants.

The restraint on speech is narrowly tailored to achieve those objectives. The regulation of attorneys' speech is limited—it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

            Id. at 1075-1076.

Unfortunately Indiana's Terry case set a precedent that became quickly adopted in other jurisdictions where state supreme court justices were looking to get around the First Amendment in order to sanction attorneys for criticizing their judicial colleagues. It is an approach that has zero chance of being upheld if and when the next attorney free speech case makes it to the U.S. Supreme Court.

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