Many judges think it’s just fine to lie about judges—as long as the lies flatter. That’s why some lawyers do it. What those judges and those lawyers won’t tolerate, however, is a lawyer who exposes the lies and crimes of judges.
Lawyers, quite reasonably, work quite hard to cultivate good rapport with individual judges and with judges generally. That is as it should be, most of the time. But as Voltaire made clear, waxing Panglossian makes no sense. It is contrary to the entire letter, spirit and history of our Constitution (and state constitutions) to pretend or presume—regarding the conduct of people in power or people with power—that all is for the best in the best of all worlds. When the emperor has no clothes, someone should say so. Otherwise, we all look ridiculous.
According to the U.S. Constitution (and according to state constitutions), judges are meant to be public servants, not public tyrants. All public officials are meant to be public servants. That was the whole point of the American Revolution and every state and federal constitution. No public servant has any power to punish any sovereign citizen merely for saying (much less for showing) that any public official’s conduct is unconstitutional or criminal. SCOTUS said so (many times in many ways).
In 2022, SCOTUS issued a decision, Shurtleff v. City of Boston, 596 U.S. 243, 142 S. Ct. 1583 (2022), for which many justices wrote opinions. Justice Breyer, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett, delivered the majority opinion. Justice Kavanaugh also filed a concurring opinion. Justice Alito, joined by Justices Thomas and Gorsuch, filed an opinion concurring in the result, but not all the reasoning of the majority. Justice Gorsuch, joined by Justice Thomas, filed another separate opinion concurring in the result, but not all the reasoning of the majority.
All SCOTUS justices agreed (and SCOTUS justices have long agreed) on the extremely fundamental, ironclad rule that any government “refusal to let” anyone speak anywhere (including a lawyer or litigant speak in court or court filings) “based on” any “viewpoint” necessarily “abridg[ed]” their “freedom of speech.” “When the government encourages diverse expression,” including “by creating a forum for debate,” one thing should be perfectly clear to all: “the First Amendment prevents” all government employees “from discriminating against [any] speakers based on their viewpoint.”
A court is a forum created by government—by the people for the people under state and federal constitutions—precisely for the purpose of “encourag[ing] diverse expression” and facilitating “debate” about the facts and law relevant to particular cases and controversies. Justice Kavanaugh, in his opinion, highlighted that this concept has a name. Courts are “a limited public forum,” and Justice Kavanaugh (quoting precedent) emphasized that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum [just because] the subject is discussed from a [particular] point of view.” Speech certainly may be excluded from a limited public forum because of its subject, but only if somebody proves facts establishing exactly how that entire subject is not even appropriate for that particular forum.
The majority and Justice Kavanaugh also emphasized particular precedent, Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995), which elaborated on the concept of a limited pubic forum. The following two paragraphs highlight relevant language from Rosenberger, adapted to apply to courts and judges.
When any public servant actually “targets” any person’s “particular views,” such “violation of the First Amendment” is “blatant” and “egregious.” Any “viewpoint discrimination” is unconstitutional “even” (actually, especially) “when the limited public forum is” of the government’s “own creation.” Certainly, courts “may legally preserve” courts and court filings “for the use to which” courts are “dedicated.” They may reserve court filings for use by “certain groups” (e.g., litigants and their lawyers, intervenors and amici) “or for the discussion of certain topics” (e.g., issues relevant the the particular case and proceedings). But all public servants (including judges) “must respect the lawful boundaries” that the Constitution, Congress and SCOTUS have “set.”
Public servants (including judges) “may not exclude speech” unless someone proves facts establishing how particular speech is not “reasonable in light of the purpose served by the forum.” Moreover, public servants (including judges) cannot ever “discriminate against speech on the basis of its viewpoint.” Any “viewpoint discrimination” by any public servant is “presumed impermissible [unconstitutional] when directed against speech” for which the entire subject has not been proved to be outside “the forum’s limitations.”
In Elenis, the majority and Justice Kavanaugh also emphasized additional important precedent, Matal v. Tam, 582 U.S. 218 (2017). Justice Kavanaugh (quoting additional SCOTUS precedent) emphasized that we must be wary of government (including judges) using any so-called “doctrine” that is, in fact, a mere “subterfuge for favoring certain private speakers over others based on viewpoint.” Quoting Matal, Justice Kavanaugh emphasized that so-called “doctrine” is “susceptible to dangerous misuse.”
Justices Alito, Thomas and Gorsuch provided an example. “Treating” any irrelevant “factor as significant” (potentially merely pretending to seriously consider relevant factors) merely “loads the dice in favor of the government’s position for no obvious reason.” “This approach allows governments to exploit public expectations” (or perception) “to mask censorship.” “To prevent” any so-called “doctrine from being used as a cover for censorship, courts must focus on” factors that really are relevant.
As Matal, itself, emphasized, “[T]he First Amendment forbids the government to regulate speech in [any] ways that [in any way] favor some viewpoints or ideas at the expense of others.” No “government” employee has (but too many judges pretend or presume they have) the power to “silence or muffle the expression of disfavored viewpoints.”
“At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.” “[T]he government” clearly “violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”
No purported “law” (no government rule or ruling) may “reflect[ ] the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.” Precluding or punishing lawyer or litigant speech about judges because it is “derogatory” clearly and merely “reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.”
In Iancu v. Brunetti, 139 S. Ct. 2294 (2019), SCOTUS emphasized that in Matal “ all Members of the Court agreed that” the government “violated the First Amendment because it discriminated on the basis of viewpoint.” Justice Alito filed a concurring opinion in which he emphasized why: “Viewpoint discrimination is poison to a free society.”