First Amendment Limits

First Amendment Limits

Rule 8.2(a) forbids a lawyer to make a statement about the qualifications or integrity of a judge, adjudicatory officer, public legal officer, or candidate for judicial or legal office when the lawyer knows the statement is false or makes it with reckless disregard for its truth.¹ A sanction under that rule is a government penalty for what a person said, and what the person said is criticism of how government uses its power, which lies at the very center of the First Amendment.² The rule's text therefore cannot settle whether discipline is allowed. A disciplinary body that finds every element satisfied must still ask whether the Constitution permits punishing this speaker for this statement.

That constitutional question sits on top of the limits the rule already contains: falsity, a culpable mental state, and a checkable assertion of fact. Its force varies with the setting. It is strongest when a lawyer speaks to the public as a citizen or takes part in an election, and it is least settled when a lawyer speaks inside a pending proceeding, a setting taken up under criticism inside litigation. Two reasons explain the pattern. Public debate about legal actors should not be chilled, and the judges and legal officials who enforce the rule may be the very people being criticized.³ And public discussion of a candidate's qualifications presents what the Supreme Court has called probably the strongest possible case for protection under the New York Times rule.⁴

Public Criticism of Officials

A lawyer who speaks publicly keeps the free-speech rights of any citizen. Outside a case in which the lawyer represents a party, a lawyer has the same fundamental right of free speech as other citizens, so public debate about legal actors should not be unduly chilled, and no official orthodoxy about acceptable views of the judiciary should be imposed by the officials who are the subject of the criticism.⁵ Disciplinary authorities must therefore be quite restrained when they consider sanctioning a lawyer's public speech.⁶ The rule itself points the same way, because it targets knowing or reckless falsehood and says nothing that reaches harsh criticism the speaker has no reason to doubt.⁷

The Sixth Circuit's decision in Berry v. Schmidt shows what that restraint requires. A Kentucky lawyer protested that a state legislative ethics commission had closed its proceedings to the public and media while the legislator under investigation was allowed to remain, and said the arrangement gave “grave cause for some to speculate that the deck was stacked.”⁸ After a lengthy investigation, the Kentucky Bar Association's Inquiry Commission dismissed disciplinary charges but still issued a warning letter finding that the lawyer had violated Kentucky's Rule 8.2(a) “by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”⁹ The Sixth Circuit held the rule unconstitutional as applied, even assuming a standard less strict than the actual malice standard of New York Times Co. v. Sullivan, because the statement was “opinion protected by the First Amendment.”¹⁰ Because the court reached that result on the less demanding standard, what the lawyer knew or doubted did not decide the case. The statement conveyed the public's belief about how a closed proceeding looked, and a belief of that kind asserts no fact that can be proved false.

Two features of the facts mark the reach of Berry. The lawyer spoke as an interested member of the public, and the subject was a government body's handling of an investigation of a legislator, the kind of topic on which citizens most need to speak freely. Because of the first feature, the court took “no position on whether our analysis would be different if it involved an attorney speaking during judicial proceedings.”¹¹ Berry thus protects the public critic and leaves open the lawyer who criticizes an official from inside a pending case.

Justice Kennedy's opinion in Gentile v. State Bar of Nevada gives a result like Berry its constitutional vocabulary, although the case arose under a pretrial publicity rule. Hours after his client was indicted, Gentile, a Nevada lawyer, held a press conference at which he asserted that the State sought the indictment of an innocent man as a “scapegoat” and had not “been honest enough to indict the people who did it; the police department, crooked cops.” The State Bar reprimanded him under a rule almost identical to Model Rule 3.6.¹² Justice Kennedy wrote that the case “involves classic political speech,” that the question was “the constitutionality of a ban on political speech critical of the government and its officials,” and that “speech critical of the exercise of the State's power lies at the very center of the First Amendment.”¹³ A lawyer's public remark about a judge or an ethics commission fits that description, because the words address public officials and their conduct in office.

Gentile does not make lawyers immune from regulation. The opinion did not call into question other States' prohibitions on attorney speech that will have a substantial likelihood of materially prejudicing an adjudicative proceeding, and it confined itself to Nevada's interpretation of that standard.¹⁴ Nevada lost because Gentile spoke at a time and in a manner that created no real threat to a fair trial, and because the record did not support a finding that he knew or reasonably should have known his remarks created a substantial likelihood of material prejudice.¹⁵ The fair-trial interest is the counterweight. Model Rule 3.6 is designed to balance the right to a fair trial against the right of free expression. It generally bars extrajudicial statements with a substantial likelihood of materially prejudicing an adjudicative proceeding, permits statements unlikely to cause prejudice or strongly in the public interest to disclose, and allows a lawyer a right of fair response.¹⁶ That rule has its own treatment. For present purposes the contrast between the two cases is enough: the Berry lawyer spoke as a member of the public about someone else's ethics inquiry, while Gentile spoke as defense counsel about his own client's prosecution.

The protection Berry and Gentile describe stops at the knowing or reckless falsehood, and that boundary explains why Rule 8.2(a) can survive constitutional challenge. Sullivan held that a statement about a public official may be punished only if it was both false and made with actual malice, meaning knowledge of falsity or reckless disregard for the truth. The drafters of Rule 8.2(a) apparently meant to adopt that standard.¹⁷ The reasoning behind Sullivan tolerates the honest mistake in public debate, but it does not reach a speaker who knows the statement is false or recklessly disregards its truth, because neither contributes to a good-faith willingness to take part in public discourse. Such a statement has no First Amendment value and therefore no First Amendment protection.¹⁸

An exam problem on public criticism therefore asks three questions in order. Does the statement assert a checkable fact, or does it state an opinion? Did the speaker know the fact was false or recklessly disregard its truth? And does the setting, such as a pending case, change the constitutional analysis? Honest opinion, honest criticism, and honest error fall on the protected side of the line, and the lie falls on the other.

Judicial Election Campaigns

Rule 8.2(a) reaches statements about “a candidate for election or appointment to judicial or legal office,” so a lawyer who campaigns for a judgeship, or who speaks for or against someone who does, is speaking inside the rule's coverage.²⁰ The comment explains why the coverage matters in both directions. Assessments by lawyers are relied on in evaluating the fitness of people considered for judicial and public legal office, and honest and candid opinions on those matters improve the administration of justice. False statements, in contrast, can unfairly undermine public confidence in it.²¹ The same comment that welcomes honest assessments condemns lies, and the First Amendment cases draw the line in the same place.

In Attorney Grievance Commission v. Stanalonis, the Maryland Court of Appeals declined to find that a candidate for judicial office had violated Rule 8.2 through an exaggerated description of an opponent's position on an issue.²² The court observed that, even if the objective test is normally applied, “there is a significant argument that a subjective test should be applied in an election context, in light of the ‘core’ First Amendment values at stake.”²³ It also recognized that “there inevitably is some imprecision in language used during the heat of a political campaign,” and that “campaign flyers are not appellate briefs.”²⁴ The second remark carries the reasoning. A flyer is compressed, hurried, and rhetorical by nature, and holding it to the precision expected of a brief would punish the ordinary vigor of campaigning along with real misconduct. The court raised the argument for a subjective test without adopting it, so the election-setting position remains a minority view. The safest exam statement is that a few courts apply the rule less strictly to campaign speech.

The Supreme Court has said something similar about candidate speech in a case unconnected to lawyer discipline. In Harte-Hanks Communications v. Connaughton, the Court called public discussion of a candidate's qualifications “probably the strongest possible case for application of the New York Times rule,” and it said that value “must be protected with special vigilance.” A candidate who enters the political arena “must expect that the debate will sometimes be rough and personal.”²⁵ Read with Stanalonis, those statements put discipline for campaign speech on its most exposed constitutional footing.²⁶

The vigilance has a boundary, and the Court drew it too. Protection stops at a statement published with knowledge of its falsity or with reckless disregard for the truth, and the test for recklessness is subjective. The question is whether the speaker actually had a “high degree of awareness of . . . probable falsity,” so a failure to investigate does not establish reckless disregard, even when a reasonably prudent person would have investigated.²⁷ Voters are served by rough, even unfair argument over a record. They gain nothing from an invented fact, and it does not matter that the setting is an election, because a lie about a candidate stays outside the First Amendment's protection.²⁸

Students are tempted to treat a campaign as a safe harbor, and the better analysis asks what the speech asserted. Heated characterization of an opponent's views or record draws the strongest constitutional protection and, in some courts, a more forgiving test. A fabricated credential, a made-up accusation of misconduct, or any other knowing or reckless falsehood about a candidate's qualifications or integrity stays within Rule 8.2(a) in any setting.

Rule 8.2 also contains a companion provision aimed at the lawyer who is running rather than at what the lawyer says about others. Subsection (b) provides that a lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.³⁰ The comment gives the aim: when a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.³¹ A candidate for a judgeship is a prospective judge, and the limits the Code places on judges' political activity should not be avoidable because the candidate has not yet taken the bench. A violation of an applicable provision of the Code is then also a violation of the lawyer's own professional rules.

Subsections (a) and (b) test different things. Rule 8.2(a) asks whether a statement about someone is false and was made with the required mental state. Rule 8.2(b) asks whether the lawyer-candidate's own conduct complies with the applicable provisions of the Code, which depends on the Code adopted in the jurisdiction. A campaign statement can be entirely true and still breach an applicable provision of the Code, and a statement the Code permits can still violate Rule 8.2(a) if it is a knowing falsehood about an opponent.