When Lawyers Criticize Judges, How Vague Must They Be?

[WSJ_law_blog]

Geoffrey Fieger, March 10, 2004. (AP/Jack Dempsey)

When a lawyer openly criticizes a judge on, say, a radio show, how far is too far?

A rather interesting 2-1 decision from the Sixth Circuit Court of Appeals addresses that issue head-on. The case concerns Michigan lawyer Geoffrey Fieger, whom many will know from his representation of Dr. Jack Kevorkian, the infamous champion of a patient’s right to die.

The Sixth Circuit ruled yesterday that Fieger was not wrongfully punished for lambasting three judges in a 1999 radio show, during which he called them “jack*****” and compared them to Nazis for overturning a $15 million verdict he had won. Here’s an NLJ report.

In 2007, the Michigan Supreme Court ruled that Fieger violated state rules of professional conduct with his “rude and vulgar” comments, and reinstated a formal reprimand against him. Fieger sued the Michigan Supreme Court over the state rules, which require lawyers to use “civility” when they criticize judges.

A federal district judge declared the rules overly broad and unconstitutional, but the Sixth Circuit reversed. “The Michigan Supreme Court,” the appeals court wrote, “emphasized that Fieger violated the rules, not because he criticized judges, but because he made vulgar, personally abusive comments about participants in a pending case.”

Dissenting, Judge Gilbert Merritt sided with Fieger on the vagueness issue.

“Saying that a judge is a “[jack***]” appears to be impermissible (despite the fact that the word is a non-vulgar name for a donkey). But would it be permissible to vary the ‘form and manner’ and say that he is a ’stubborn idiot,’ a ‘right-wing radical,’ a ‘doctrinaire ideologue,’ or “driven by party politics”? he continued. “In sum, the Michigan Supreme Court says that lawyers are free to criticize judges, but may only do so in a manner that shows courtesy and respect. The vagueness — and potential reach — of this requirement hardly needs further elaboration.”

I think you should be able to say anything about a judge apart from somethng that is defamatory.

The Sixth Circuit decision puts judges on a pedestal, above mean criticism. What if Fieger was a news reporter who also had a Michigan law degree and who made “vulgar” comments about a Michigan judge in a newspaper article?

Apparently, in Michigan the reach of the First Amendment stops at the judges’ chambers.

Comment by Judge Crater