Tuesday, January 20, 2009
In a 2-1 opinion issued today, the United States Court of Appeals for the Sixth Circuit remanded with instructions to dismiss a lawsuit brought by Geoffrey Fieger and Richard Steinberg under the First and Fourteenth Amendments challenging as vague and overbroad Michigan's Rules 3.5(c) and 6.5(a). These rules are commonly referred to as the "courtesy and civility" provisions of the Michigan Rules. Fieger had been disciplined in Michigan for comments made on his radio show.
The court majority found he lacked standing to bring the action. Further, there was no contention that Fieger had been singled out by disciplinary authorities or is reasonably threatened by the rules. The court noted that he has been subject to a single, isolated reprimand for violating the rules despite his regular criticism of the Michigan judiciary in vocal, harsh and vulgar terms. The court also notes that he no longer has the radio gig.
Judge Merritt dissents. He takes issue with the suggestion that the rules at issue are saved by the Michigan Supreme Court's purportedly narrow construction of its provisions: "nothing in the opinion suggests where the line between permissible and impermissible [comments] might be drawn." (Mike Frisch)