No, this isn't a joke, the punchline of which is "feed her rat poison." I don't spend much time paying attention to pundits on the loony left or right, but the issue of constitutional limits on professional discipline for speech is something I've followed for a while. Recently, right-wing talking head Ann Coulter gave a speech at a college in Arkansas in which she suggested that the pro-life cause would be helped by murdering a Supreme Court justice. "We need somebody to put rat poisoning in Justice Stevens' creme brulee," she said, hastening to add she was "just kidding." Putting aside the strategic questions of whether responding to Coulter's comment would only lend it credibility and give her the publicity she obviously craves, would a state bar association be empowered to discipline Coulter for this remark? (She's apparently a lawyer, admitted in New York. Who knew?)
There are tons of cases in which lawyers have challenged disciplinary sanctions imposed for disrespectful, insulting, even threatening comments: One lawyer referred to pending proceedings as a "travesty," a "kangaroo court," and a "legalized lynching." In re Hinds, 449 A.2d 483, 487 (N.J. 1982). Lawyers accuse judges of being crooks, harboring racial or religious biases, or being in love with one of the parties. See, e.g., In re Palmisano, 70 F.3d 483, 485-86 (7th Cir. 1995) (lawyer characterizing virtually every judge before whom he appeared as a "crook"); In re Evans, 801 F.2d 703 (4th Cir. 1986) (accusing magistrate judge of either incompetence or "Jewish bias in favor of the Kaplan firm"); In re Golub, 597 N.Y.S.2d 370 (App. Div. 1983) (claiming infatuation with the actor William Hurt). Some additional low moments in legal rhetoric include referring to judges as an asshole, Lebbos v. State Bar, 806 P.2d 317 (Cal. 1991), Nazis and child molesters, Statewide Grievance Comm’n v. Presnick, 559 A.2d 220 (Conn. App. Ct. 1989), "the biggest fool I’ve ever seen," In re Friedland, 376 N.E.2d 1126, 1128 (Ind. 1978), "a disgrace to the bench," Kunstler v. Gilligan, 571 N.Y.S.2d 930 (App. Div.), aff’d mem., 587 N.E.2d 286, 579 N.Y.S.2d (N.Y. 1991), "puppets and professional stooges," State ex rel. Nebraska State Bar Ass’n v. Michaelis, 316 N.W.2d 46, 50 (Neb. 1982), and "either incapable of recalling significant facts or an unmitigated liar,"Greene v. Virginia State Bar Ass’n, 411 F. Supp. 512 (E.D. Va. 1976); see also Bar Ass’n v. Carlin, 423 N.E.2d 477, 478 n.3 (Ohio 1981) ("the Judge is an unmitigated liar, unmitigated, unequivocal liar" [failing to add "pants on fire"]). Even Ann Coulter would have a hard time topping this harangue about a federal district court judge in Los Angeles:
It is an understatement to characterize the Judge as "the worst judge in the central district." It would be fairer to say that he is ignorant, dishonest, ill-tempered, and a bully, and probably is one of the worst judges in the United States. If television cameras ever were permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover. One might believe that some of the reason for this sub-standard human is the recent acrimonious divorce through which he recently went: but talking to attorneys who knew him years ago indicates that, if anything, he has mellowed.
Standing Comm. v. Yagman, 55 F.3d 1430, 1434 (9th Cir. 1995). Granted, none of these cases involve threats, but if courts uphold discipline in cases where the comments are merely accusations of impropriety, then a fortiori it seems that threatening comments could be made the subject of professional discipline.
What are state bar associations to do about all of this? Are these lawyers subject to discipline? There are a couple of rules on point, including Rule 8.2, which prohibits making a "statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge," and Rule 8.4(d), the catch-all rule proscribing conduct that is "prejudicial to the administration of justice." When the First Amendment's freedom-of-speech guarantee is raised as a defense to discipline (or some other official sanction), the analysis is made needlessly complicated by a great deal of doctrinal uncertainty at the Supreme Court level. Much of the blame for problem rests with Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), which is one of those splintered opinions that requires a scorecard to understand. It tends to be misinterpreted as standing for the following proposition:
Courts therefore may require attorneys to speak with greater care and civility than is the norm in political campaigns. . . . [T]he Constitution does not give attorneys the same freedom as participants in political debate.
In re Palmisano, 70 F.3d 483, 485-86 (7th Cir. 1995) (Easterbrook, J.). In other words, Gentile is understood as reviving the right/privilege distinction, in which people are deemed to surrender certain constitutional guarantees in exchange for government benefits such as a law license. Someone like Ann Coulter is therefore working with less First Amendment protection than an average citizen would enjoy.
This is important, because "average citizens" pretty clearly are permitted by the First Amendment to make utterances such as Coulter's rat poison comment. For example, in Watts v. United States, 394 U.S. 705 (1969), the defendant announced he would not report for a physical examination in connection with his conscription, and then said: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers." The Supreme Court overturned his conviction on the grounds that his statement constituted protected political speech, not a genuine threat. The law has been settled since Brandenburg v. Ohio, 395 U.S. 444, 448 (1969), that anything other than incitement to imminent lawless action is presumptively protected speech. Coulter's statement qua citizen would be protected under Watts and Brandenburg. Qua lawyer, how does she fare?
The narrow holding of Gentile is that a state bar association rule restricting pretrial comments (in this case, a press conference called by a criminal defense attorney) was void for vagueness. Dicta in Chief Justice Rehnquist's opinion, however, have been picked up to justify the right/privilege analysis above, as in Judge Easterbrook's opinion in Palmisano. For a bunch of examples, see, e.g., In re Frerichs, 238 N.W.2d 764, 768-69 (Iowa 1976) ("A lawyer, acting in a professional capacity, may have some fewer rights of free speech than would a private citizen"); Attorney Grievance Comm’n v. Alison, 565 A.2d 660, 665-66 (Md. Ct. App. 1989) (lawyers voluntarily accept restrictions on conduct more demanding than those applicable to other members of society); State ex rel. Nebraska Bar Ass’n v. Michaelis, 316 N.W.2d 46 (Neb. 1982) ("A layman may, perhaps, pursue his theories of free speech or political activities until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canons of Ethics; and if he wishes to remain a member of the bar he will conduct himself in accordance therewith."); In re Converse, 602 N.W.2d 500 (Neb. 1999); In re Raggio, 487 P.2d 499, 500-01 (Nev. 1971) ("We are never surprised when persons, not intimately involved with the administration of justice, speak out in anger or frustration about our work . . .. A member of the bar, however, stands in a different position by reason of his oath of office and the standards of conduct which he is sworn to uphold.").
This post is already way too long, but my point here is to emphasize that Gentile, properly understood, permits courts to regulate lawyers’ speech related to pending cases in which they are involved, at a threshold lower than "clear and present danger." Significantly, however, it still requires the state to show a substantial likelihood of material prejudice to a pending judicial proceeding. (This standard is now incorporated into Rule 3.6(a) of the Model Rules.) Only a very small set of lawyers’ utterances may be regulated under this standard, and a great many cases which cite Gentile do not involve speech that threatens concrete harm to a specific court proceeding. Everything in Gentile that doesn't relate to a pending judicial proceeding is pure dicta. The upshot is that Coulter’s stupid, unfunny remarks at her college speech do not lose their protected status just because Coulter is a lawyer.
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