SCOTUS Repeatedly Emphasized that Judges Cannot Retaliate Against Attorneys under the Mere Guise of Punishing Professional Misconduct
Judges Cannot Pretend that "Professional Speech" Is a Disfavored Category of Speech
Generations of judges (including too many on the U.S. Supreme Court (SCOTUS)) have designed decisions to deceive Americans and defraud us of our First Amendment rights and freedoms. One SCOTUS opinion, and one contention in that opinion, stand out for multiple reasons.
In 1991, Chief Justice Rehnquist chose to include words in an opinion that have become the darling of judicial despots and con men, appearing in many judicial opinions. In Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991)) a minority of SCOTUS justices (for no apparent reason) included the contention that “in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.”
SCOTUS justices chose to make that pronouncement at that time even though they knew it was utterly irrelevant to that decision and it had no proper place in that decision (or any other). The attorney’s speech was not either in a courtroom or during a judicial proceeding. It was completely outside the courthouse in a press conference. Moreover, SCOTUS actually reversed the decision of the state court that punished the attorney for his speech. That result and the supporting reasoning were what was relevant in Gentile.
SCOTUS justices also chose to make that pronouncement even though they knew it was a far-less-than-half-truth. Many judges abuse the irrelevant, deceptive dictum, above, to attack only lawyers and attack even lawyers’ writing. For functional reasons, different rules govern speech in a courtroom during a proceeding, e.g., during a trial or hearing, than those that govern speech in court filings. Even if it’s true, lawyers or litigants cannot shout “liar” in a courtroom. They certainly may, however, in writing say that the judge lied. It is deceptive (and sometimes deceitful) to apply the contention, above, to writing in court filings.
There is an even greater reason to conclude the justices’ contention in Gentile was gravely misleading. The truth is far greater and far simpler, and it is in the Fifth Amendment (and Fourteenth Amendment) to our Constitution, itself: “No person” may be “deprived of life, liberty, or property, without due process of law.” Nobody ever has any contrary right or power—and the Fifth Amendment necessarily applies with at least as much force to government-employed judges as to non-government attorneys. Moreover, copious due process of law expressly permits (or even requires) and protects copious speech (by judges, jurors, lawyers, litigants and witnesses ) in courtrooms and court papers.
Lawyers cannot (logically or lawfully) be punished for the content of court filings exposing and opposing illegal, unconstitutional and criminal judicial misconduct. Judges too often pretend otherwise even though many SCOTUS decisions (that actually are controlling precedent) prove the point.
In Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), SCOTUS justices repeatedly emphasized that judges have no power to retaliate against attorneys under the “guise” of purported discipline based on the content of their speech, including speech critical of judges.1
Chief Justice Roberts and Justices Alito and Gorsuch joined in a concurring opinion to “underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern.” They emphasized it was “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” They further emphasized the crucial constitutional reason by emphasizing how courts must reason:
to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. [Any contrary rule or court ruling] imperils those liberties.
Justice Thomas, joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch, delivered the majority opinion. The majority repeatedly discussed the regulation of attorney or lawyer speech. They even quoted NAACP v. Button, 371 U. S. 415 (1963), which very strongly emphasized that the First Amendment protects lawyer (and litigant) speech in litigation. The majority in Becerra quoted Button precisely to re-emphasize that judges “may not” trample on or “ignore constitutional rights” of lawyers or litigants “under the guise of prohibiting professional misconduct.” They emphasized that SCOTUS “precedents” (including Button) “have long protected the First Amendment rights of professionals,” including by “appl[ying] strict scrutiny to content-based laws that regulate,” specifically, the “speech of lawyers.” “Content-based regulations” (rules or punishment) “target speech based on its communicative content.”
A profound presumption and the crucial burden of proof extremely strongly protect attorney speech in court proceedings: “As a general matter,” any restriction or punishment of the content of lawyer or litigant speech (in court filings and even in a courtroom) is “presumptively unconstitutional.” “Importantly,” government “has the burden to prove” its own conduct is constitutional.
Content-based restrictions or punishment of speech must be expressly “justified” by government, and they can “be justified only if the government proves that they are narrowly tailored to serve compelling [public] interests.” “This stringent standard reflects the fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.” “Speech is not unprotected merely because it is” by “professionals.” And SCOTUS “precedents are deeply skeptical of” restrictions or punishments that “distinguish among different speakers, allowing speech by some but not others.”
The majority also emphasized why: “The dangers associated with content-based regulations of speech” necessarily are “present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech poses the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”
“Further, when the government polices the content of professional speech, it can fail” to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” “Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields” and “the people lose when the government is the one deciding which ideas should prevail.”
Quotations herein have been cleaned up by this author, e.g., to remove internal quotation marks and brackets.