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.
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a previous disciplinary rule that regulated criticism of judicial officials by attorneys, a rule that has essentially been replaced by Rule 8.2 of Indiana's Rules of Professional Conduct, which new rules were adopted in the middle 1980s.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.
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)
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."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.
Bridges v. California, 314 U.S. 252, 270-271 (1941).
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:
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.
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.