Tuesday, January 20, 2009

Sixth Circuit Throws Out Fieger Suit

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)


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To avoid dismissal under Younger, the Attorney Feiger was forced to argue that the disciplinary rules chilled his First Amendment speech. Despite the attorney having faced discipline twice already for his speech and despite his stated intent to continue criticising the court in the same vocal manner and despite his having been forced to curtail his speech for fear of further prosecution, the Sixth Circuit nonetheless held that the threat was not sufficiently concrete. In truth, the Sixth Circuit is avoiding considering a claim which, if they ever were to actually consider, could only be decided one way.

I agree completely with the dissent:

>>> It is also worth noting that the majority’s apparent demand for detailed allegations about the sorts of decisions that Fieger will criticize and the specific language that he will use is particularly inappropriate in a suit for a declaration concerning the facial validity of the Rules. If plaintiffs had sought a declaration that certain specific actions could not be punished under the Rules — that is, “a pre-application, as-applied challenge,” Adult Video News Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 567 (6th Cir. 1995) (emphasis omitted) — it would be appropriate to require that they allege the behavior with a high degree of specificity and demonstrate the likelihood that they will undertake that behavior in the future. But where they seek a declaration that the law, on its face, is unconstitutionally vague and overbroad, what is the point of having plaintiffs’ standing turn on the specificity of their planned conduct? A facial challenge to the Rules will be resolved by reference to the text of the Rules and any limiting constructions Michigan courts have given them; the specific conduct that gave rise to the facial challenge is of little relevance and should not be determinative of the existence of a case or controversy.<<<


Posted by: FixedWing | Jan 22, 2009 3:27:37 PM

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