Dangerously Careless Speech about the Freedom of Speech (Part IV)
Smart Judges Say Some Dumb, Dangerous Things about the Freedom of Speech
Sometimes, some of the smartest people say some of the dumbest things. Sometimes, their speech isn’t just dumb. It’s dangerous. Sometimes, judges say some of the dumbest things. Sometimes what judges say is designed to be dangerous to our First Amendment rights and freedoms. Dumb gets dumber and dangerous gets more dangerous when it gets repeated by more and more men in black.
A warning by Justices Stevens, Blackmun and O’Connor when they dissented in United States v. Alvarez-Machain, 504 U.S. 655 (1992) seems to bear repeating (repeatedly): “As Thomas Paine warned,” an “avidity to punish is always dangerous to liberty” precisely “because it leads” some judges “to stretch, to misinterpret, and to misapply even the best of laws.” Paine wasn’t a lawyer or a judge. He did not need to be to know human nature.
Judges sometimes say dumb, dangerous things about our freedom of speech precisely so that other judges will repeat and reinforce them. Sometimes, courts are right where rights are killed. The Justices of the Kansas Supreme Court (copying federal judges) provided a recent example. In 2021, Justices on the Kansas Supreme Court retaliated against an attorney because, in written court filings, he exposed and opposed the lies and crimes of judges. Every judge on the Kansas Supreme Court (I was told) agreed with an opinion that included the following glittering and glaring absurdities:
[A] lawyer's in-court advocacy is not protected speech under the First Amendment. . . . This includes advocacy in motions filed in a court proceeding. See Mezibov v. Allen, 411 F.3d 712, 720 (6th Cir. 2005) ("[I]n filing motions and advocating for his client in court, Mezibov was not engaged in free expression; he was simply doing his job. In that narrow capacity, he voluntarily accepted almost unconditional restraints on his personal speech rights, since his sole raison d'etre was to vindicate his client's rights.").
[The Kansas attorney pointed out that] his freedom of speech is "no less" just because he has a law license, citing equal protection and due process principles [in the Fourteenth Amendment and SCOTUS precedent]. But [according to the judges on the Kansas Supreme Court and at least two federal judges on the Sixth Circuit Court of Appeals] "[t]he courtroom is a nonpublic forum . . . where the First Amendment rights of everyone (attorneys included) are at their constitutional nadir. In fact, the courtroom is unique even among nonpublic fora because within its confines [courts] regularly countenance the application of even viewpoint-discriminatory restrictions on speech." Mezibov, 411 F.3d at 718.
It’s hard to believe that kind of drivel would dribble from the pen of even one judge, state or federal. But the Mezibov opinion was written by Judge Alice Batchelder, and (at least) Judge Eugene Siler joined in. Then, their absurdities were repeated by (apparently) every judge on the Kansas Supreme Court. According to Wikipedia, Judge Batchelder was Chief Judge of the U.S. Court of Appeals for the Sixth Circuit from 2009 until 2014, and she even was considered by President George W. Bush as a potential SCOTUS nominee.
An earlier Sixth Circuit Judge (who intended to sit on the U.S. Supreme Court and did become Chief Justice (and who before that was the president)) apparently cared considerably more about the Constitution or was much better informed. Judge Taft presented (to a group of attorneys) a vastly different view of their freedom of speech and why it must be protected. The same subject was so important to President Theodore Roosevelt (and Congress) that the president repeated and supplemented what Judge Taft said when the president addressed the many attorneys in Congress and even more attorneys who would see or hear his speech. See 41 Cong. Rec. S23-24 (Dec. 4, 1906), 59th Cong., 2d Sess. (President Theodore Roosevelt Annual Message to Congress (Dec. 3, 1906) quoting Hon. William Howard Taft (6th Cir.), Recent Criticism of the Federal Judiciary, Address to American Bar Association Annual Meeting (1895) (https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5392 &context=penn_law_review).
Speaking of sixths, the Constitution was amended with the Sixth Amendment, specifically, to clearly and emphatically confirm that “[i]n all criminal prosecutions, the accused shall enjoy the right to” a “public trial.” Enjoy is a particularly peculiar word to choose to describe the right of the accused in a public trial for criminal prosecutions. But the point remains that hundreds of years ago the Constitution clearly and concisely confirmed that trials generally are not nonpublic, and courtrooms generally are not nonpublic forums. Contentions to the contrary, especially by judges, are absurd. They smack of the evil and outrageous arrogance of Star Chamber judges.
As SCOTUS emphasized in In re Oliver, 333 U.S. 257 (1948), even “in England” (which does not have a written constitution) all “secret criminal trial[s]” ended “in 1641” with the “abolition of the Court of Star Chamber.” So America’s very long, very well established “practice of guaranteeing a public trial” has even longer “roots in our English common law heritage,” which “likely evolved long before the settlement of our land as an accompaniment of the” even more “ancient institution of jury trial. In this country the guarantee to an accused of the right to a public trial first appeared in a state constitution in 1776.”
Public trials are not merely a practice. Public judicial proceedings (and publicity about them) reflects the long and deep “Anglo-American distrust for secret trials,” which was “variously ascribed to the notorious” abuse of secrecy in prosecutions and persecutions for speech “by the Spanish Inquisition,” the “English Court of Star Chamber,” and “the French monarchy’s abuse of the lettre de cachet. All of” those “obviously” were egregious and dangerous “menace[s] to liberty” wielded by “despotic” judges “for the suppression of [purported] political and religious heresies in ruthless disregard of the right of an accused to a fair trial.” “[T[he guarantee” that a “trial” will “be conducted in public” has “always been recognized as a safeguard against any attempt to employ” any American “courts as instruments of persecution.” The same must be said of publicity about court proceedings. Judges’ and the public’s “knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion” was designed to be “an effective restraint” on “abuse of judicial power.”
As “Jeremy Bentham” put it “over 120 years” before Oliver, secret trials make a “judge” both “indolent and arbitrary.” “Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.”
The fact that a courtroom is a limited public forum (in which restrictions are imposed on the judge) was emphasized in a fairly well-known decision, Bridges v. California, 314 U.S. 252 (1941):
A court is a forum with strictly defined limits for discussion. It is circumscribed in the range of its inquiry and in its methods by the Constitution, by laws, and by age-old traditions. Its judges are restrained in their freedom of expression by historic compulsions resting on no other officials of government. They are so circumscribed precisely because judges have in their keeping the enforcement of rights and the protection of liberties which, according to the wisdom of the ages, can only be enforced and protected by observing such methods and traditions.
Just in June of 2022, Justice Kavanaugh re-emphasized in Shurtleff v. City of Bos., 142 S. Ct. 1583 (2022) that each court, de facto and de jure, constitutes a “limited public forum.” SCOTUS re-emphasized that a limited public forum exists “[w]hen the government encourages diverse expression” by “creating a forum for debate,” as state and federal governments did with courts. SCOTUS in Shurtleff cited Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995), which had a lot more to say on the subject of limited public forums.
In Rosenberger, SCOTUS emphasized that courts (as limited public forums) “may legally preserve” court filings “for the [public] use to which” courts are “dedicated,” including limiting filings to “certain groups” (e.g., litigants, intervenors and amici) and “for the discussion of certain topics” (including relevant to motions to recuse judges or reconsider judicial conduct). But judges “may not exclude speech” unless they prove how it is not “reasonable in light of the purpose served by the forum.” Limitations that contravene the Constitution (as construed by SCOTUS) cannot be reasonable.
Courts “may not,” for example, ever “discriminate against speech on the basis of its viewpoint.” “When” any court “targets not [merely] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Any “viewpoint discrimination” is “presumed impermissible when directed against speech otherwise within the forum’s limitations.”
In Shurtleff, SCOTUS emphasized that any “refusal to let” someone speak in court “based on” their “viewpoint” clearly “abridg[es]” their “freedom of speech.” “When” any court excludes “speech based on” its “viewpoint,” that “constitutes impermissible viewpoint discrimination.” Any government “refusal to let” a person speak in court “based on” his “viewpoint violate[s]” the so-called “Free Speech Clause of the First Amendment.”
SCOTUS repeatedly has emphasized that the “right to petition” is “one of the most precious of the liberties safeguarded by the Bill of Rights.” SCOTUS did so, for example, in United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217 (1967) and again in BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002). In BE&K, SCOTUS emphasized that such “right is implied” by “the very idea of a government, republican in form,” so it “extends to all departments of the Government” and clearly includes “the right of access to the courts.”
In United Mine Workers and in Broth. of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964), SCOTUS repeatedly emphasized that “the rights of free speech and a free press” are “not confined to” (or categorically excluded from) “any field of human interest.” “[T]he principles announced in Button,” below, govern “litigation” both “for political purposes” and “solely designed to compensate” alleged “victims.”
In NAACP v. Button, 371 U.S. 415 (1963), SCOTUS repeatedly emphasized that courts clearly “may not prohibit” any “modes of expression and association protected by the First and Fourteenth Amendments” by merely invoking the mere general “power to regulate the legal profession.” “[I]t is no answer to” any “constitutional claims” that “the purpose of” any “regulations” (court rules or rulings) “was merely to insure high professional standards.” Judges clearly “may not, under the [mere] guise of prohibiting professional misconduct, ignore” (knowingly violate) “constitutional rights” of lawyers or litigants.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) quoting Bridges v. California, 314 U.S. 252 (1941), SCOTUS repeatedly emphasized that it “is a prized American privilege to speak one’s mind” on “all public institutions.” “[T]his opportunity” must “be afforded” even for “vigorous advocacy” in court proceedings. In Button, SCOTUS emphasized that “the First Amendment” necessarily, obviously and expressly “protects vigorous advocacy” in court proceedings “against governmental intrusion.”
As SCOTUS re-emphasized repeatedly, including in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), neither “litigants” (nor their lawyers) "surrender their First Amendment rights at the courthouse door." “[T]hose rights” merely “may be subordinated” when proved necessary to protect “other interests that” are even more constitutionally-protected “in this setting.”
The Gentile opinion was quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). The Gentile opinion, however, failed to include clear and crucial due process protections in the subsequent sentence that a considerably more Constitution-conscientious author included in Seattle Times. Any “restriction on the communications of trial participants” must be proved “necessary to ensure a fair trial.”