Some people love to hurl “Liar!” at others. I see why, and that’s part of the reason I prefer more gently handing them their “lies.” It is considerably more kind and considerate to expose a statement as a lie than to expose a person as liar.
The essence of a lie can be distilled to facts and circumstances. The essence of a liar is a corrupt character. To be most charitable, a lie can be viewed as a momentary lapse. Being a liar implies life-long commitment. Reputation can be lost for lying. But gaining a reputation for being a liar is far worse.
There is no courtesy in labeling a person a liar. The epithet may be a perfect fit. It may true. It even may be appropriate. But it is neither courteous or civil. There also may be no honor in it.
There certainly is no honor in lying about whether one person said another was a liar. There is no honor in that lie even when the person lying is Your Honor. I say that because I’ve seen it. I’ve seen judges lie. I’ve seen judges lie about a lawyer purportedly calling judges liars. Those judges’ diatribes, however, are a story for a different day. Today, the point is that it is a far, far better thing to challenge a judge’s statement as a lie than to label a judge a liar.
Openly challenging a judge’s statement as a lie may, at first glance, seem discourteous. Yet, clearly it is a considerable courtesy. Openly challenging a judge’s statement as a lie affords the judge the opportunity and encouragement to offer an intelligent response. A lawyer in court proceedings challenging a judge’s statement as a lie is, in multiple respects, an affair of honor.
At the time of the Founding (to use a phrase popular among judges who purport to tell us what our Constitution means), an “affair of honor” meant a duel—generally, with pistols, often, to the death. At the time of the Founding, exposing the lies and crimes of judges could end with someone literally killing the messenger.
Even to this very day, when a lawyer or litigant exposes the lies and crimes of judges, too many judges try to kill the messenger, albeit usually in a less than literal sense. A challenge to a judge’s integrity should not (and cannot without violating the Constitution) be seized upon as an opportunity to kill the messenger in any sense. It should be seen and seized as an opportunity to prove the integrity of the judge.
Challenging a judge’s statement as a lie definitely is an invitation to duel, but the weapons are words and nobody dies. The challenge is simply, “Show me.” Judges who want us to believe they spoke the truth should show us the proof. As they used to say back in Britain (around the time of the Founding), “The proof of the pudding is in the eating.”
You can’t judge a book by its cover. You can’t judge a judge by his robes. Too many lying, cheating judges hide behind their robes like the Wizard of Oz hiding behind his flimsy curtain, using mere machinery of state to magnify and elevate a loud voice and a big head. For such judges, terror and intimidation are tactics more important than truth and proof.
At the time of the Founding, some of the best and brightest Founders were the Framers of our Constitution. They emphasized that the Constitution is king: The “Constitution” and “the Laws of the United States” that are “made in Pursuance” of the Constitution (and Treaties) are “the supreme Law of the Land” and all “Judges” everywhere are “bound thereby.” They emphasized that every public official is a public servant “bound” to “support this Constitution,” and that includes “all executive and judicial Officers.”
Immediately after the Constitution was ratified it was revised to include a Bill of Rights. The very first amendment was reserved for our First Amendment. Especially with pride of place and the stirring and strong words in the Preamble and the First Amendment, the Framers emphasized that all Americans are free to think, speak, publish, assemble and petition about any grievances against any government officer (including judges).
Even before the Founders and Framers wrote the 1776 Declaration, the original Constitution or the First Amendment, they identified the very heart of what they meant by “the freedom of speech, or of the press.” By that expression, they emphasized that “the freedom” of expression was the same regardless of whether characterized as “of speech” or “of the press.” Regardless of whether expression is spoken or written, private or public, it is protected from assault and abuse by any government officer.
Truly seeing what the First and Second Continental Congresses did and said is crucial to understanding what the freedom of speech and press meant to the first Americans and how it protects today’s Americans. The Founders vigorously exercised the freedom of speech and press, not only to state, but even to demonstrate, and in a legal and literal sense to prove, the freedom of speech and press.
The Congress that was the first to speak for all the people of this entire country (the First Continental Congress) extolled the virtues of the living, beating heart of the freedom of expression in October 1774. They shined a spotlight on “the freedom of the press” by emphasizing that it always has been one of our “great rights” especially because it serves the “advancement of truth” about public affairs and public officials by protecting the “diffusion of liberal sentiments on the administration of Government” so that “oppressive officers” can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.”
When justices of the U.S. Supreme Court (SCOTUS) cared to inform Americans of that crucial truth about and vital purpose of the First Amendment, they kindly and conscientiously quoted that clarification by the First Continental Congress. SCOTUS justices did so in majority opinions in Near v. Minn., 283 U.S. 697, 717 (1931) and Roth v. United States, 354 U.S. 476, 484 (1957). The majority also did so in Thornhill v. Alabama, 310 U.S. 88, 102 (1940), which is a profoundly important opinion, but it substituted “ashamed” for “shamed.”
The last SCOTUS justice I found quoting the crucial clarification, above, was Justice Brennan in 1979. He did so in Herbert v. Lando, 441 U.S. 153, 186 (1979) (Brennan, J., dissenting). It speaks volumes about SCOTUS justices that the last time a SCOTUS opinion quoted the language, above, about shaming oppressive officials into more honorable and just conduct was in a mere dissent and it was more than 30 years ago. Such silence is all the more striking when contrasted with the rise of “originalism” as the purported key to construing the Constitution (according to most current SCOTUS justices).
I mentioned Justice Brennan, in part, to credit his courageous fidelity to the Constitution. Justice Brennan wrote the majority opinion in Roth, above. He also authored the majority opinions in two other crucial SCOTUS decisions, each of which emphasized the freedom of lawyers and litigants to expose the lies and crimes of judges. First, Justice Brennan did so in the famous decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (especially in pages 268 through 275). Then, he did it again in a decision that should be famous, Garrison v. Louisiana, 379 U.S. 64 (1964).
Justice Brennan’s writing in New York Times and Garrison about the First and Fourteenth Amendments should be read in the light of his quotations from the champions of the freedom of speech and press in the First Continental Congress, above. They courageously (at the risk of their lives) exercised the freedom of speech and press on behalf of all Americans. The First and Second Continental Congresses spoke quite clearly, and they quite clearly spoke for the people. They expressed the thinking of the very people who became the first generation of United States citizens in 1776.
In retaliating against attorneys who have criticized judges, lots of judges have lied about New York Times to pretend that it affords no protection to attorneys criticizing judges. But judges find it much more difficult to lie about Garrison not protecting attorneys. Garrison was an attorney. Not only was Garrison a lawyer licensed by the government, he was a lawyer employed by the government. Garrison openly and publicly attacked eight judges of the court of which Garrison also was an officer. He expressly and publicly criticized eight judges for being egregiously lazy and inefficient. Moreover, he at least implied that one or more judges might be criminally corrupt.
SCOTUS in New York Times emphasized how (and why) the Constitution protects citizens, in general, when any citizen criticizes how any purported public servant purports to serve the public. The First Amendment and copious SCOTUS precedent are proof of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” and that such debate certainly may “include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” “The constitutional guarantees [in the First, Fifth and Fourteenth Amendments] require” at the very least, “a federal rule that prohibits” any “public official from” punishing or penalizing any statement about any public official’s official conduct unless it was a “falsehood” and somebody “proves that the statement” actually “was false” as to some fact. The Constitution precludes making or enforcing any so-called law or rule or court ruling “that puts the burden of proving truth on the speaker.”
Within months, Garrison followed very closely to speak even more specifically and even more forcefully about lawyers exposing actual or perceived lies or crimes of judges. Such “speech concerning public affairs” (by lawyers about judges) is “the essence of self-government.” A real and substantive “debate” about whether judicial conduct is constitutional or criminal “should be uninhibited, robust, and wide-open,” and it certainly may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” The “public interest in a free flow of information to the people concerning public officials, their servants” (clearly including judges) is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including any judge’s “dishonesty, malfeasance, or improper motivation.”
The Constitution “absolutely prohibits” any type of content-based “punishment of truthful criticism” of any public servant’s public service. “Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” those “statements” that have been proved to be “false” may be punished (because of their content) with “either civil or criminal sanctions.”