Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, August 1, 2012

Sixth Circuit: Kentucky Bar Association Rule As Applied To Attorney Speech Violates First Amendment

In Berry v. Schmitt, an attorney challenged a Kentucky Bar Association rule that forbade him to criticize the behavior of the State Legislative Ethics Commission. The District Court granted the Bar Association's motion for summary judgment.

Said the appellate court:

Although the district court did not address the merits of the as-applied challenge, we reach that issue because "[t]he usual judicial practice is to address an as-applied challenge before a facial challenge . . . because this sequencing decreases the odds that facial attacks will be addressed unnecessarily." ...

As a preliminary matter, it is not necessary for us to resolve whether the highly protective defamation standard applies in this case, because we ultimately determine below that Berry's speech may not be sanctioned even under a less demanding standard. Both parties recognize that Berry has a right to engage in speech involving "governmental affairs" and "the manner in which government is operated or should be operated, and all such matters relating to political processes" under Mills v. State of Alabama, 384 U.S. 214, 218-19, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966).  Berry contends that he can be punished only if his statements are knowingly false or made with reckless disregard of their falsity, applying the defamation standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). While "[j]udges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face," Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995), "there are significant differences between the interests served by defamation law and those served by rules of professional ethics," Standing Comm. v. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995). Defamation is essentially a private action that seeks to compensate individuals who are injured by false or reckless speech. Id. The ethical rules, by contrast, do not compensate judges or "shield [them] from  unpleasant or offensive criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice." Id. Because of this distinction, ethics rules can permissibly reach speech that defamation suits cannot. The New York Times standard is therefore arguably too restrictive to apply in all its strength to court-enforced ethical obligations.   The Ninth Circuit has compellingly articulated a more appropriate test in United States District Court v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993): a court should "determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances." "The inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made."Yagman, 55 F.3d at 1437. Because Berry's statements cannot be sanctioned even under this test, it is not necessary to resolve definitively whether the stricter New York Times test applies.


With these principles in mind, it is evident that the KBA acted unconstitutionally. In the October 5 letter, Berry stated in pertinent part:

The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, . . . .
This statement is a mixture of assertions of fact and expressions of opinion. Much of this excerpt—the portion discussing the exclusion of the public and media from the inquiry, Senator Williams's presence, and exclusion of the complainant—consists of assertions that describe objectively verifiable matters. Had the KBA proven that any of those facts was  untrue, Berry's assertions could have formed the basis for discipline. The KBA, however, appears to concede that these factual allegations are true.

The remainder of Berry's statement—conveying the public's belief that the "deck was stacked"—is opinion protected by the First Amendment. An opinion can "be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." Yagman, 55 F.3d at 1438-39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, "'I think [C] must be an alcoholic.' A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion." SeeRestatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A's opinion. See Yagman, 55 F.3d at 1439. On the other hand, a statement based on fully disclosed facts is only actionable where the "facts are themselves false and demeaning."  See id. at 1439. For example, if A told B:
"C moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic." The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.
Restatement § 566, cmt. c, illus. 4. The rationale for this dichotomy is that when facts are merely implied, a listener is unable to assess the basis for that opinion. Where the underlying facts are fully revealed, however, "readers are free to accept or reject the  author's opinion based on their own independent evaluation of the facts." Yagman, 55 F.3d at 1439.


Here, Berry disclosed all of the facts underlying his opinion, all of which were true and non-defamatory. His opinion was based on stated facts:   the exclusion of the public from the hearing, the inclusion of David Williams, and the exclusion of the complainant. Given this context, readers were free to form another, perhaps contradictory, opinion from the same facts.

Berry's opinion was not based on implied facts. The KBA contends that Berry's letter implied that the Commission illegally excluded the public from the hearing. Of course, contentions that adjudicatory bodies acted illegally are the staple of appellate briefs, and cannot without more constitute ethical violations. Berry's statements, in any event, did not necessarily imply that the Commission broke the law. Berry may well have known that the Commission was following its regulations, but believed that the regulations themselves were slanted in favor of accused legislators. Certainly, Berry could not be punished for advocating a change in the law. Even assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The public was free to investigate the Commission's procedures and draw its own conclusions. The speaker is not required to provide a comprehensive legal analysis to support his every utterance. For these reasons, Rule 8.2(a) was applied unconstitutionally.

The case is Berry v. Schmitt, 2012 U.S. App. LEXIS 15513; 2012 FED App. 0231P (6th Cir.).

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