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Saturday, June 8, 2013

Citizens United v. Illinois ARDC–who will the winner be?

by jmdenison

One of the issues cropping up in Ken and mine ARDC's case is are the rules under 8.3 and 8.4 that provide, ( this is right from the Complaint sent to me):

a. 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, adjudicatory
officer or public legal officer, in violation of Rule 8.2 of the
Illinois Rules of Professional Conduct;
b. conduct involving dishonesty, fraud, deceit, or
misrepresentation, in violation of Rule 8.4C of the Illinois
Rules of Professional Conduct;
c. conduct that is prejudicial to the administration of justice,
in violation of Rule 8.4C of the Illinois Rules of
Professional Conduct;

Now, when these rules are applied to conduct by an attorney for lying to the court, stealing, fraud, theft and embezzlement, even a DUI or sexual abuse, murder, etc., the rules are clear. There is truly no problem in applying them.

The problem comes in, when the activities complained of encompass free speech activities of lawyers, and especially when they are applied to disseminating news or blogging. Then, the lawyer stands or should stand as a citizen to her job and the First Amendment should be given as wide a berth as possible.

In this case, the ARDC seems to think that an attorney cannot blog about corruption, irregularities, lack of service upon participants because that brings "disrepute" to the court system, when in fact it is the exact opposite.

One of the cases that KDD found which has some great language for keeping the First Amendment broad is Citizens United. Most of you should know the case because it created a furror when SCOTUS said 1) that corporations are elevated to the status of "person" when determining First Amendment rights and 2) it is part of free speech to make campaign donations to particular candidates to promote who should be elected or who should not be elected. The net effect of this decision is that corporations can now douse politicians with money who will support a corporate agenda that might be anti-green, anti-union, anit-worker, etc. and many people are fearful of that.

However, for the purposes of First Amendment rights, here are some excerpts of yours and my and Ken's First Amendment rights. One of the things that the ARDC is skipping is the fact that the First Amendment has to be given the broadest scope possible. It has to allow people to speak out against corruption and prior ARDC cases were concerned with that. In fact, I believe before Atty. Lanre's case, I don't know of an attorney disciplined for speaking out against corruption in the courts. The blogging world and even the Chicago Trib has stories of it, but for some reason the ARDC thinks attorneys should not mention it.

I have no idea where all of that came from.

In fact, if you read Ken's ARDC decision closely, the tribunal was clearly disappointed that his behavior in court was perfect. He did not yell, scream or shout obscenities like other lawyers did that got disbarred for ranting and raving and calling judges "corrupt", "crooks", etc.

All KDD did was call for an investigation.

Calling for an investigation is NOT the same as filing a police report or demanding prosecution. It is merely calling for the police and the GAL's to do their job. Go out and investigate. Pull bank records. Look at the house, get involved.

Where this escapes everyone, I don't understand.

From Citizen's United and Ken's brief, some great quotes:

with respect to blogging:

“Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 326, 130 S. Ct. 876, 891, 175 L. Ed. 2d 753 (2010)

“The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower *337 Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 153, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 108, 123, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan, 376 U.S., at 267, 84 S.Ct. 710; and subjecting the speaker to **897 criminal penalties, Brandenburg v. Ohio, 395 U.S. 444, 445, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 336-37, 130 S. Ct. 876, 896-97, 175 L. Ed. 2d 753 (2010)

The Citizen’s United has over-ruled Palmisano with the following dicta, to wit:
“While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts' own lawful authority. Substantial questions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 639, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

“**891 6 Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all to interpret a *327 law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, “ must give the benefit of any doubt to protecting rather than stifling speech.” WRTL, 551 U.S., at 469, 127 S.Ct. 2652 (opinion of ROBERTS, C.J.) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 269–270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964))” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 326-27, 130 S. Ct. 876, 890-91, 175 L. Ed. 2d 753 (2010)

The Virginia State Bar case 2013 WL 749494 is consistent with The Supreme Court decisions that over-rule the district Court decision of Palmisano.
United States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010)   _ the Court stated:
“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383, 112 S.Ct. 2538. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254–255, 72 S.Ct. 725, 96 L.Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).   United States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010)
    The Right to be critical and even disrespectful to elected officials is demonstrated on a delay basis and is clearly a protected activity under the First Amendment.