Thursday, April 14, 2022

Is Calling A Judge An Asshole At A Holiday Party Protected Speech?

In a lengthy opinion, the Ohio Supreme Court imposed a stayed six-month suspension of an attorney with a substance abuse assessment by the Bar's OLAP program

Bahan and her husband attended the annual Logan County Bar Association holiday event on December 8, 2018. During the event, the bar association presented a “mock award” to William Goslee, who at that time was a judge on the Logan County Court of Common Pleas. Bahan, who had consumed alcohol at the event and appeared to be intoxicated, loudly and rudely interrupted the presentation of the award and called Judge Goslee a “piece of shit,” an “asshole,” and a “motherfucker.”

Other incidents

 In its complaint, relator alleged that over a nine-year period, Bahan had engaged in seven additional incidents of improper conduct while under the influence of alcohol and that her conduct violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). 

The court rejected a protected speech defense to the holiday party outburst

Bahan contends that her speech at the event was political in nature because she intended to express her disapproval of Judge Goslee’s courtroom conduct that purportedly led the bar association to present him with a mock award that evening. Relator, in contrast, argues that this matter is not about the freedom of speech, but rather “the uncontrolled, self-indulgent, drunken behavior of a member of the bar.” For the following reasons, we find that Bahan’s objection is without merit.

...none of these regulations prohibit a lawyer from speaking on any subject matter. Instead, they require a lawyer to conduct herself with the dignity and respect that is commensurate with her role as an officer of the court to encourage civility and to preserve public confidence in the legal system.

Justice Kennedy concurred and dissented in part

 I part ways with the majority’s analysis regarding Count One, which alleges that Bahan violated Gov.Bar R. IV(2) by failing to maintain a “respectful attitude” toward the courts when she called a judge expletives during a  bar association holiday event.

I agree with the opinion concurring in judgment only that the First Amendment of the United States Constitution prohibits this court from discipling an attorney solely for exhibiting a disrespectful attitude toward the courts. The majority today has made Gov.Bar R. IV(2) a content-based regulation that prohibits lawyers from calling judges—but no one else—rude names. More alarming is that this case is just part of a recent trend in which the majority is ordering that any criticism of the judiciary be kept silent. Last year, this court disciplined an attorney for impugning the integrity of this court when that attorney asserted that one of this court’s judgments had been based on political motivations. Cleveland Metro. Bar Assn. v. Morton, ___ Ohio St.3d ___ 2021-Ohio-4095, ___ N.E.3d ___. Today, the majority punishes an attorney for failing to show the appropriate amount of respect toward a judge outside a courtroom. In barring attorney speech that supposedly erodes “respect for the rule of law,” majority opinion, ¶ 31, the majority chills an attorney’s ability to express dissatisfaction in the judiciary in words (that a judge is, perhaps, “incompetent,” “unreasonable,” or just “wrong”) or tone. Ohioans should no more countenance the majority slicing away bit by bit at their fundamental right of the freedom of expression any more than they would permit the government to enter their homes to cut away the legs of their dining-room tables.

Justice DeWine concurred in the judgment only

Today, the majority holds that an attorney may be punished under the Rules for the Government of the Bar of Ohio for speech that fails “to maintain a respectful attitude toward the courts.” Majority opinion, ¶ 26. In doing so, it exceeds the limits of our disciplinary authority. Our rules allow us to punish only attorney speech about a judge that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity. Prof.Cond.R. 8.2(a). What’s more, in holding that an attorney’s speech may be punished simply because it is disrespectful of the judiciary, the majority makes mincemeat of First Amendment protections. The unfortunate result will almost certainly be to chill other attorneys from engaging in legitimate criticism of the judiciary...

The majority’s view is that the First Amendment only “may be invoked as a defense for permissible criticism.” Majority opinion at ¶ 34. News flash. That’s not the way the First Amendment works. The First Amendment guarantees citizens permission to criticize their government; it doesn’t grant government the right to decide what criticism is permissible.

None of this is to defend Bahan’s conduct. By all accounts, her behavior at the holiday party was boorish, unprofessional, and embarrassing to herself and others. No doubt, regardless of any discipline that this court imposes, behavior of this sort has its own consequences. It’s a fairly safe bet that Bahan’s outburst did serious damage to her reputation among the lawyers and judges who were in attendance—damage that one may assume will have financial consequences to her and her practice. And there is a case to be made that independent of the communicative aspects of her drunken tirade, Bahan could have been disciplined for violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).

Oral argument before the court is linked here. (Mike Frisch)

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