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Free Speech for Everyone But Lawyers

The New York Times has an article today about how lawyers are facing disciplinary actions over their blog postings and updates on Facebook and social networking sites, particularly when it comes to criticism of judges.

Lawyers are held to a different standard, because they are officers of the court.

I wonder if the standard also applies to comments written by others on blogs belonging to lawyers. Do we have a duty to read and delete comments that are offensive to judges or other lawyers?

[More....]

It's one of the reasons I don't allow personal attacks and name-calling in comments here, but since I don't have time to read all the comments on this site, I may miss a few.

And what about judges and lawyers we don't know personally? For example, there's plenty of harsh stuff all over the internet about some of the Bush appointees to the bench and the lawyers involved in the torture memos. Must lawyers be careful of how they articulate their disagreement with them or their opposition to them obtaining or holding their jobs?

The best approach is a simple one: When criticizing someone, keep it civil, avoid personal character attacks and name-calling and think before you hit the send button.

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    Interesting topic (5.00 / 1) (#1)
    by Dalton Hoffine on Sun Sep 13, 2009 at 12:34:38 PM EST
    I'd think that it would be alright for a lawyer to express their opinion on cases and judges that they weren't involved with. If the Second Circuit is hearing a case that a lawyer from Texas is interested in opining about, and he/she isn't filing an amicus brief or otherwise personally involved in the case, I don't see what should stop them from discussing it.

    I DO think it's definitely a no-no to do such things when it's a case you're personally involved in--and doing personal attacks is something that should be avoided regardless of whether or not you're involved in the case or not--it's just unprofessional.

    Unfortunately though, I think a lot of lawyers opine more about local cases and the politics involved in them. Then you create a situation where even if you aren't currently involved in a case before a judge or against a proescutor/defendant you're criticizing, you always run the risk of affecting those who are associated with you, or yourself in future cases, should you find yourself before those people.

    I like your guidelines for things, though. I'd just add: it's probably best to stay away from people and topics who are close within your circles and locales. Being removed from the situation might free you up a bit.

    Maybe good advice for lawyers (none / 0) (#4)
    by oldpro on Sun Sep 13, 2009 at 01:54:12 PM EST
    (to stay away from people and topics who are close within your circles and locales) but not for the rest of us.

    When the judges are way out of line as they are currently in my locale, only a blog or a letter to the editor is possible if they are to be called out at all.  So I wrote a blog post and offered it to the local paper as a 'perspective' (citizen editorial).  

    Haven't heard back...yet  People are afraid of judges.  No one commented at my blog post but I got a dozen or more personal emails of thanks and congratulations.

    Wimps.

    Parent

    The ACLU Defends Free Speech for Lawyers (5.00 / 1) (#3)
    by Michael Masinter on Sun Sep 13, 2009 at 01:27:36 PM EST
    As the NY Times story notes, the ACLU of Florida wrote an excellent amicus brief urging the Florida supreme court to recognize that Conway's speech was protected by the first amendment even though Mr. Conway himself never made that argument.  [Full disclosure -- I chair the legal panel of the Florida ACLU but did not write the brief]  Here's a link to the brief:  http://jaablog.jaablaw.com/files/34726-32374/aclu_amicus.pdf and here's a link to the southern district of Florida blog coverage of the case: http://sdfla.blogspot.com/search/label/sean%20conway

    thanks, Michael (none / 0) (#10)
    by Jeralyn on Sun Sep 13, 2009 at 03:49:42 PM EST
    Much appreciated.

    Parent
    Free speech? (5.00 / 1) (#8)
    by TeresaInSnow2 on Sun Sep 13, 2009 at 03:17:44 PM EST
    The term 'free speech' is such a mis-nomer.  There is no free speech.   There is protected speech, but even that breaks down when you do things like "yell fire in a crowded theater" or joke about having WMD in your suitcase at an airport.

    But the most protected speech always has consequences.  If I criticized one of my work associates online, I would very likely quickly become a "dis-associate".  I would likely get no warning or censure, we'd just separate.  

    And on blogs you can get deleted, censured, or banned for what you say.  Internet providers can cut bloggers' accounts for saying something they disagree with or that violates their policies.  Allegre recently gave up blogging (but left her site to other bloggers) because she went to work for a senator(?) or Congressperson.  Employers can deny you employment for things you post online.

    Free speech is just a propaganda term you learn in kindergarden.  It isn't reality.  And it probably makes sense that it shouldn't be.

    Like Joe Strummer said... (none / 0) (#14)
    by kdog on Mon Sep 14, 2009 at 09:01:55 AM EST
    "You have the right
    to free speech.
    Provided of course
    you're not dumb enough
    to actually try it."


    Parent
    Isn't it lawyers who run the bar (none / 0) (#2)
    by Cream City on Sun Sep 13, 2009 at 01:07:35 PM EST
    and have self-determination -- as professions do, compared to trades -- to decide such discipline?

    Similar chilling effect from specific cases -- of what bloggers themselves wrote -- caused another profession to appoint a committee, now in progress, to review and recommend rules revisions re free speech.
       

    I think (none / 0) (#11)
    by MrConservative on Sun Sep 13, 2009 at 06:38:04 PM EST
    that this is a little tricky from a free speech perspective.  Yes, the organizations are run privately by lawyers, but they are given power by the government to revoke the license of anyone in the profession.  In my mind, that definitely at least raises questions about free speech, since it's essentially the government giving power to people to punish them for speech, even if such punishment isn't judicial in nature.

    Parent
    No, professions that self-regulate (none / 0) (#12)
    by Cream City on Sun Sep 13, 2009 at 08:59:06 PM EST
    -- which, again, is a crucial criterion that defines a profession (I've read studies on this or would not know the lingo:-) -- are not given that power by the government.  Or it wouldn't really be self-regulation; it would be policed regulation.

    Professions that self-regulate do so to avoid ceding that power to the government -- the history of it is interesting to see when professions do so, often under pressure that could lead to governmental oversight.

    The government has been given power to license some occupations, often owing to their resistance to and lack of self-regulation.  

    Parent

    I think its ok to muzzle lawyers (none / 0) (#6)
    by NMvoiceofreason on Sun Sep 13, 2009 at 02:32:59 PM EST
    They get a pass on the small stuff - like being a sitting federal appeals judge when you got the job as payment for your participation in and coverup of mass murder, torture, and other crimes.

    When life and liberty are meaningless, when there is no court with jurisdiction to hear your claims because your prison doesn't have an address, when the State can torture you, and rape you and your family, and murder you, and no one is ever held to account -

    Why do we need lawyers in the first place?

    And why are we worried about muzzling them when they do nothing to show they have any regard for their sworn oaths?

    Yet lawyers who are criminals on a scale beyond the pale of any of the rest of us get a pass.

    The rule of law is dead in America. Once that little secret gets out, Katy bar the door. All thanks to lawyers. The end of the social contract. The end of civilization as we know it.

    So I think its OK to muzzle lawyers. Don't sweat the small stuff.

    There was a time when (none / 0) (#7)
    by scribe on Sun Sep 13, 2009 at 02:57:40 PM EST
    advertising - even in the most arcane sense - was a serious wrong for which lawyers were sanctioned by courts and the bar.  Even a listing in the phone book which said "Attorney" next to your name could be construed as a violation (especially if TPTB in the local bar did not like you).

    A look at daytime and late night TV lawyer ads, or your local yellow pages, classified ads and Craigslist will tell you what happened to that.

    There was likewise a time when prices for various services were set by the local bar, and deviation (downward, only - if you could get more, fine) from them was a sanctionable offense.  

    That, too, went the way of all things.

    The ban on advertising took it on the chin in the 70s on First Amendment grounds but it had to go all the way to the Supreme Court.

    The ban on fixed fees went out the same way, but on antitrust grounds, also per a Supreme Court case.  

    I've been hanging around courthouses long enough (too long, some might say) to see a bunch of judges and, like any other group, there's a bell-curve distribution.  Some really really smart, some dumb as a post.  Some hard-working, others more interested in making sure their schedule accommodated hitting an bucket of balls at lunch.  Most really honest, and a few real crooks who more than balance out the honest ones.  Sober ones and drunk ones.

    People want to believe that all the judges are on the "good" end of the distribution, but they aren't, no more than any other politicians or professionals.

    Most of them are gossips (they got to be judges by being in politics, after all) - a colleague who was the son-in-law of a leading local judge once said that judges gossiping made any stereotypical kaffeeeklatsch sewing circle look positively tame by comparison.

    Unfortunately, the stupid, lazy, venal, vain, crooked and drunken judges are pretty uniform in one aspect of their personalities - they have very thin skins and simultaneously think very highly of themselves and their abilities, regardless of the accuracy of that thought.  And, they live out an old saw:

    Give someone a little power, and you'll soon find out how small they are.

    The funny thing is, when someone who's a real crackpot takes critcism of a judge as his/her pet project, they blow it off - because it's a crackpot doing it.  When someone takes the time to document and properly support their criticism, they go ballistic.

    Is Ezra a lawyer? (none / 0) (#9)
    by oculus on Sun Sep 13, 2009 at 03:38:50 PM EST


    No, Ezra is not a lawyer (none / 0) (#15)
    by Jeralyn on Mon Sep 14, 2009 at 11:51:40 AM EST
    How can we elect Judges? (none / 0) (#13)
    by Carolyn in Baltimore on Mon Sep 14, 2009 at 07:40:30 AM EST
    Our District Judges are elected. They run as a block (Elect the sitting Judges!) so no newcomer can get in unless one resigns or is indicted. There is no easy-to-find public information on the Judges unless you want to study their decisions individually.
    Before one election I asked an attorney friend about the Judges because I wanted to know about the current ones (one had issued a very controversial decision and I was wondering which others I should not vote for. I got an earful of stuff apparently every lawyer in town knew but which was not allowed out to the public who votes these people into office, apparently for life unless they get a promotion.
    The press only discusses the egregious cases that have sex appeal. But the skirt-chasing, the sexism, the rudeness, even tthe jaul/treatment philosphy doesn't get out much unless you're involved in a case.
    As a voter I deserve to know more.