No.

23-747

In The
Supreme Court of the United States

MARYLIN PIERRE,

Petitioner,
v.

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MARYLAND

BRIEF OF AMICUS CURIAE

FIRST AMENDMENT LAWYERS ASSOCIATION
IN SUPPORT OF PETITIONERS

JONAH K. DICKSTEIN GARY S. EDINGER

100 South Ashley Drive (Counsel of Record)
12425 28th St. N., Ste 600 305 N.E. 1st Street
D. GILL SPERLEIN Gainesville, Fla. 32601
345 Grove Street, 2nd FL (352) 338-4440
San Francisco, CA 94102 [email protected]
EDWARD S. RUDOFSKY
Five Arrowwood Lane Counsel for Amicus FALA
Melville, New York 11747
MATT KEZHAYA*
150 S. Fifth St., Ste 1850
Minneapolis, MN 55402

* On the Brief
 i

QUESTION PRESENTED

Does the actual malice test of New York

Times v. Sullivan protect lawyers’ First
Amendment rights in disciplinary
proceedings?
 ii

TABLE OF CONTENTS

Page

Question Presented ..................................................... i

Table of Contents ........................................................ ii

Table of Authorities ................................................... iii

Interest of the Amicus Curiae .................................... 1

Summary of Argument .............................................. 2

Argument .................................................................... 3

A. The Court should Specifically Hold that the

New York Times v. Sullivan Standard is
Applicable to Attorney Disciplinary Matters .. 3

1. Bar Punishments Are Government

Penalties...................................................... 8

2. Government has Almost no Valid Interest in

Suppression of Professional Speech ........... 8

3. The Judiciary Regularly and

Rightly Exercises Free Speech Without
Sanction..................................................... 10

Conclusion ................................................................. 15
 iii

TABLE OF AUTHORITIES

Cases Page

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023) ............................................... 6

Buckley v. Valeo,
424 U.S. 1 (1976) ....................................................... 4

Denver Area Ed’l Telecomm’s Consortium, Inc. v. FCC,

518 U.S. 727 (1996) ……………………………………..13

Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ............................................... 7

Hazelwood School Dist. v.Kuhlmeier,

484 U.S. 260 (1988) ............................................... 8, 11

In re Westfall,
808 S.W.2d 829 (Mo. 1991)……………………………..13

Matter of Dixon (1999)

4 Cal. State Bar Ct. Rptr. 23 ........................... 12, 13

McKee v. Cosby,
139 S.Ct. 675 (2019) .................................................. 4

Meyer v. Grant,
486 U.S. 414 (1988) ................................................... 4

Mills v. Alabama,
384 U.S. 214 (1966) ................................................... 4
 iv

Nat’l Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) ............................................... 9

New York Times v. Sullivan,

376 U.S. 254 (1966). .............................. 2, 3, 4, 5, 7, 8

Offutt v. United States,

348 U.S. 11 (1954) ................................................... 7

Olmstead v. United States,

277 U.S. 438 (1928) ................................................... 8

Sweeney v. Patterson,
128 F.2d 457 (D.C. Cir. 1942) .............................. 4

Thomas v. Collins,
323 U.S. 516, 545 (1945) ................................................ 11

United States v. $11,500.00 in United States

Currency,
869 F. 3d 1062 (9th ................................................. 11

United States v. Adams,

788 F. 3d 115 (4th Cir. 2015) .................................. 5

United States v. Cronic,

466 U.S. 648 (1984) ................................................... 3

Whitney v. California,
274 U.S. 357 (1927) ................................................... 6

Rules

Supreme Court Rule 37.6 ........................................... 1

 v

Other Authorities

Abraham Lincoln, “Fragment from a Law

Lecture,” Collected Works of Abraham
Lincoln (Univ. of Mich. 1953) ........................... 5 n. 3

Alexander Meiklejohn, Free Speech and its Relation

to Self-Government 106 (1948). ............................... 9

Alexander Meiklejohn, The First Amendment is an

Absolute,
1961 Sup. Ct. Rev. 245, 256 ...................................... 9

American Bar Association, ABA Profile of the Legal

Profession,
https://www.americanbar.org/news/abanews/aba-
news-archives/2019/08/profile-of-the-profession-re-
port/ ................................................................... 2 n. 2

Attorney's Criticism of Judicial Acts as Ground of

Disciplinary Action, 12 ALR3d 1408; Lindsey
Keiser, “Lawyers Lack of Liberty: State
Codifications of Comment 3 of Rule 8.4 Impinge on
Lawyers’ First Amendment Rights,” 28 Geo. J.
Legal Ethics 629 (2015) ......................................... 14

Brian E. Mitchell, “An Attorney’s Constitutional

Right to Have An Offensive Personality - United
States v. Wunsch and Section 6068(f) of the
California Business and Professions,” Code 31
U.S.F. L. Rev. 703 (1996-1997) ............................. 14
 vi

Eric Foner, The Fiery Trial: Abraham Lincoln

and American Slavery (2010) ................................. 6

Henrici Bracton, De Legibus et Consuetudinibus

Angliae (“On the Laws and Customs of England”)
(c. 1235)...………………………………………………….5

In the Matter of Marla A. Brown,

The State Bar Court of the State Bar of California,
Case No. SBC-23-O-30270-DGS [State Bar’s
Closing Brief, 7/28/23 at 15] accessible on-line at
https://discipline.calbar.ca.gov/portal/
DocumentViewer/Index/YTjKffwuS2oU93--
UibgyIboxlfr8yT1mHrQPpN9wBVkVhBbnXMUu
wjxqb__h2_gaLYH5TTlfAjwEqcpBY4jqO7E8sknO
H3gPVDblOvij-w1?caseNum=SBC-23-O-
30270&docType=Pleading&docName=Brief
&docTypeId=269&isVersionId=False&p=0……..12

Jacqueline Thomsen, Outspoken Federal Judge

Condemns Antisemitism’s ‘Moral Rot’ Bloomberg
Law (Nov. 9, 2023, 10:20 AM EST; Updated ....... 10

Lawrence Lessig, The Path of Cyberlaw,

104 Yale L. J. 1743 (1995).…………………………..13

Louis D. Brandeis, The Opportunity in the Law,

Address Before the Harvard Ethical Society at
Phillips Brooks House, Cambridge, Massachusetts
(May 4, 1905) ........................................................... 7

Margaret Tarkington, Voice of Justice: Reclaiming the

First Amendment Rights of Lawyers (Cambridge
Univ. Press 2018)…………………………………….14
 vii

Margaret Tarkington, “A Free Speech Right to

Impugn Judicial Integrity in Court Proceedings,” 51
B.C. L. Rev. 363 (2010)……………………...……….14

Margaret Tarkington, “The Truth Be Damned: The

First Amendment, Attorney Speech, and Judicial
Reputation,” 97 Geo. L.J. 1567 (2008-2009) ….….14

Terri Day, “Speak No Evil: Legal Ethics v. the First

Amendment,” 32 J. Legal Prof. 161 (2008) 14

David Thomas, Lawyer who said George Floyd

protesters should be shot wins ethics trial, Reuters
(October 4, 2023, 2:55 PM), https://www.reuters.com/
legal/legalindustry/lawyer-who-said-george-floyd-
protesters-should-be-shot-wins-ethics-trial-2023-10-
04/ …………………………………………………………12

W. Bradley Wendel, “Free Speech for Lawyers,” 28

Hastings Const. L.Q. 305 (2000-2001). .............. 13, 14
 1

INTEREST OF THE AMICUS CURIAE

The First Amendment Lawyers Association

(FALA) is an Illinois-based, not-for-profit organization
comprised of over 150 attorneys who routinely
represent businesses and individuals engaged in
constitutionally protected expression and
association. FALA’s members practice throughout
1

the United States, resisting government censorship

and intrusion on speech in defense of First
Amendment freedoms.

Given the nationwide span of their experience

and the particularized nature of their practices, FALA
attorneys are uniquely poised to comment on the
important constitutional issues raised in this case.

1
Pursuant to Supreme Court Rule 37.6, amici curiae state that
no counsel for any party authored this brief in whole or in part
and that no entity or person, aside from amici curiae, their
members, and counsel, made any monetary contribution towards
the preparation and submission of this brief. Amicus curiae
certifies that it has given proper notice as required by Supreme
Court Rule 37.2.
 2

SUMMARY OF ARGUMENT

Attorneys are entitled to the full protections of the

First Amendment. Those rights are not limited just
because attorneys hold Bar cards. Rather, unique
limitations are properly imposed only where attorney
speech interferes with the administration of justice.
But even under such circumstances, the First
Amendment still requires protection of speech rights
in accordance with the standards adopted in New York
Times v. Sullivan, 376 U.S. 254 (1966).
The Sullivan standard, set forth decades ago, has
withstood the test of time: Sullivan requires the
government to prove, by clear and convincing
evidence, that the speaker was at least reckless
regarding the proven falsity of the statement.
In the public imagination, lawyers are encouraged
to forcefully critique (and thereby better) our political
and judicial processes. But as it now stands, hundreds
of thousands of lawyers2 operate under regimes much
different from what the public may believe: lawyers
stand ready to lose their livelihood, in many states, if
the government deems a controversial opinion to be
unfounded. In those States, lawyers have an
overriding self-interest to refrain from publicly
stating anything that could be perceived as negative
about any topic, public figure, or judicial action. This

2
According to the American Bar Association, there are 1.3
million attorneys in the United States. See American Bar
Association, ABA Profile of the Legal Profession,
https://www.americanbar.org/news/abanews/aba-news-
archives/2019/08/profile-of-the-profession-report/ (last accessed
1/18/24).
 3

reality stifles the free exchange of ideas, chills valid

criticism of government officials, and deters
improvements to the administration of justice.
Lawyerly public discourse benefits the public
interest. Lawyers are trained to say what others, of
more timid character, might not. No less so than
politics, the practice of law is—and should always
remain—a contact sport. Cf. United States v. Cronic,
466 U.S. 648, 656 (1984) (noting the vital importance
of ideas, in litigation, “to survive the crucible of
meaningful adversarial testing”).
Government actors seeking to punish lawyers for
their expression should have to prove liability. The
pre-existing First Amendment standard properly
balances the competing interests of preserving public
confidence in the legal system and ensuring its
integrity. But a preponderance of jurisdictions have
upset that balance and, as a result, chilled lawyers’
protected speech. This blots out the sun and lets the
rot grow.

ARGUMENT

A. The Court Should Specifically Hold

that the New York Times v. Sullivan
Standard is Applicable to Attorney
Disciplinary Matters

The Court should clarify that attorney disciplinary

proceedings based on protected speech must satisfy
the standards in New York Times v. Sullivan, 376 U.S.
254 (1966). That standard would require disciplinary
 4

boards to prove that a lawyer’s statement was “made

with ‘actual malice’—that is, with knowledge that it
was false or with reckless disregard of whether it was
false or not.” Id. at 280. While the American Bar
Association Model Rules of Professional Conduct
ostensibly incorporate this standard, various
jurisdictions have ignored it. See Petition at 16 n. 7.
The Sullivan standard must apply to speech by
attorneys about the judiciary. Sullivan instructs that
the First Amendment prohibits governments from
punishing merely erroneous reports about officials. Id.
at 279-83. Cases that hold to the contrary, as
catalogued by Petitioners, “reflect the obsolete
doctrine that the governed must not criticize their
governors.” Id. at 272 (quoting Sweeney v. Patterson,
128 F.2d 457, 458 (D.C. Cir. 1942)).
Sullivan emphasized the country’s “profound
national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-
open . . . .” Id at 270. Soon after Sullivan, this Court
noted the “practically universal agreement that a
major purpose of” the First Amendment is “to protect
the free discussion of governmental affairs . . . of
course includ[ing] discussions of candidates.” Mills v.
Alabama, 384 U.S. 214, 218 (1966). “In a republic
where the people are sovereign, the ability of the
citizenry to make informed choices among candidates
for office is essential . . . .” Buckley v. Valeo, 424 U.S.
1, 14-15 (1976). “First Amendment protection is ‘at its
zenith’” when applied to “core political speech.” Meyer
v. Grant, 486 U.S. 414, 420, 425 (1988).
There is an ongoing debate concerning the wisdom
of the Sullivan Court’s federalization of libel law. See,
e.g., McKee v. Cosby, 139 S.Ct. 675, 675-676 (2019)
 5

(Thomas, J., concurring in denial of certiorari, citing

several post-Sullivan concurrences of Justice White).
But one thing is beyond cavil: State governments,
including Bar associations, have a definite obligation,
to observe First Amendment constraints in at least
in some meaningful manner. Government censorship,
in the name of inculcating lawyers with civility,
strains the golden thread of self-government. That
thread depends upon the unfettered expression
of honest opinions—often in courts and about courts,
by and through lawyers.
Courts themselves rely on such candor. Hence the
tradition of publishing opinions, which dates to at
least the medieval era. See Henrici Bracton, De
Legibus et Consuetudinibus Angliae (“On the Laws
and Customs of England”) (c. 1235). This continuing
tradition promotes integrity of results and, in turn,
supports public confidence in the judges who serve the
public. Not all published judicial comments are
positive; some are decidedly negative: “I believe judges
need to say more, not less, to the political branches
about the serious deficits in our criminal justice
system.” United States v. Adams, 788 F. 3d 115, 117
(4th Cir. 2015) (Davis, Sr. Cir. J., concurring). Lest we
forget, sitting judges—full of opinions, and eager to
publicize them—are nearly all lawyers too. With time,
other outspoken, opinionated lawyers will eventually
fill the ranks of the judiciary.
While revered for his honesty3 as a humble

3
The Great Emancipator was quoted as saying: “If in your own
judgment you cannot be an honest lawyer, resolve to be honest
without being a lawyer. Choose some other occupation….”
Abraham Lincoln, “Fragment from a Law Lecture,” Collected
Works of Abraham Lincoln (Univ. of Mich. 1953), Vol. 2, p. 59-60.
 6

country lawyer. Abraham Lincoln, was not above the

political fray and could throw a few sharp elbows
when needed. One ponders whether, under current
jurisprudence, Lincoln’s Illinois Bar license would
have survived the Lincoln-Douglas debates. After all,
Lincoln repeatedly called incumbent Senator Stephen
Douglas “The Judge,” and impertinently accused
Douglas of seeking to make slavery legal throughout
the United States. Douglas refused to argue whether
slavery was right or wrong and went on to
defeat Lincoln in the 1858 Illinois United States
Senate election. See generally Eric Foner, The Fiery
Trial: Abraham Lincoln and American Slavery (2011)
(winner of the 2011 Pulitzer Prize - History).
Should we, like Lincoln, have “confidence in the
power of free and fearless reasoning?” Whitney v.
California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring). One should hope so. “If liberty means
anything at all, it means the right to tell people what
they do not want to hear.” 303 Creative LLC v. Elenis,
143 S. Ct. 2298, 2321 (2023) (internal quotation and
citation omitted).
Justice Brandeis spoke eloquently on this subject,
in relation to lawyers:
[T]he paramount reason why the lawyer
has played so large a part in our political
life is that his training fits him especially
to grapple with the questions which are
presented in a democracy…. His
profession rests upon the postulate that
no contested question can be properly
decided until both sides are heard….
The ordinary man thinks of the Bar as
a body of men who are trying cases….
 7

But by far the greater part of the work

done by lawyers is done not in court, but
in advising men on important matters….
Louis D. Brandeis, The Opportunity in the Law,
Address Before the Harvard Ethical Society at Phillips
Brooks House, Cambridge, Massachusetts (May 4,
1905) (available at http://www.minnesotalegalhistory
project.org/assets/Brandeis%20-%20%20(1905).pdf)
(last visited January 21, 2024).
Society benefits when lawyers make their well-
informed perspectives known. That is no less true
when attorneys speak about the actions and
competency of the Judiciary and the legal system. See
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034–
35 (1991) (“There is no question that speech critical of
the exercise of the State's power lies at the very center
of the First Amendment…. The judicial system, and in
particular our criminal justice courts, play a vital part
in a democratic state, and the public has a legitimate
interest in their operations.”).
Our method of self-government requires toleration
of different viewpoints. This Court has long held that
“sitting in judgment on” a supposedly “misbehaving
lawyer” calls for forbearance. Offutt v. United States,
348 U.S. 11, 14 (1954) (“These are subtle matters, for
they concern the ingredients of what constitutes
justice. Therefore, justice must satisfy the appearance
of justice.”).
The Sullivan standard, no more and no less,
frames the appearance of justice in the context of
lawyers’ free expression.
 8

1. Bar punishments are

government penalties

When a Bar grievance committee issues a

punishment, it has engaged in a government-backed
penalty. When that punishment implicates speech
rights, lawyers merit First Amendment protection. All
such government-backed penalties for speech “must
be measured by standards that satisfy the First
Amendment.” Sullivan at 269. “Experience should
teach us to be most on our guard to protect liberty
when the Government’s purposes are beneficent. . . .
The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but
without understanding.” Olmstead v. United States,
277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).

2. Government has almost no

valid interest in suppression of
professional speech

The First Amendment protects “professional”

speech. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 272 (1988). This Court has
consistently reaffirmed that First Amendment rights
of professionals may be limited only in two narrow
contexts:
[T]his Court has not recognized
“professional speech” as a separate
category of speech. Speech is not
unprotected merely because it is uttered
by professionals. This Court… has been
especially reluctant to exemp[t] a
category of speech from the normal
 9

prohibition on content-based
restrictions…. afford[ing] less protection
for professional speech in two
circumstances—neither of which turned
on the fact that professionals were
speaking. First, our precedents have
applied more deferential review to some
laws that require professionals to
disclose factual, noncontroversial
information in their commercial speech.
Second, under our precedents, States
may regulate professional conduct, even
though that conduct incidentally
involves speech.

Nat’l Inst. of Family & Life Advocates v. Becerra, 138

S. Ct. 2361, 2371-72 (2018) (internal citations and
quotations omitted).
The Court should now clarify that such protection
includes attorneys’ speech. Lawyers’ public utterances
often address their professional activities—which
necessarily revolve around public policy itself. See
Alexander Meiklejohn, The First Amendment is an
Absolute, 1961 Sup. Ct. Rev. 245, 256 (concluding that
the First Amendment protects “the official expression
of a self-governing man’s judgment on issues of public
policy,” a freedom that “must be absolutely
protected”). “The guarding of the freedom of public
discussion is a preliminary step in the unending
attempt of our nation to be intelligent about its own
purposes.” Alexander Meiklejohn, Free Speech and its
Relation to Self-GovernmenT 106 (1948).
 10

3. The Judiciary regularly and

rightly exercises Free Speech without
sanction
Very recently, a sitting federal judge, Roy Altman,
wrote and gave speeches regarding the current Israel-
Hamas war. He took pains to do so only in his personal
capacity, but he also alluded to his service as a
lawyer—and as a judge—to establish that his
professional experience informed his opinions.
The media reported on the public controversy. See
Jacqueline Thomsen, Outspoken Federal Judge
Condemns Antisemitism’s ‘Moral Rot’ Bloomberg Law
(Nov. 9, 2023, 10:20 AM EST; Updated: Nov. 9, 2023,
6:26 PM EST), https://news.bloomberglaw.com/us-
law-week/outspoken-federal-judge-condemns-
antisemitisms-moral-rot. But as Judge Altman rightly
commented, “when federal judges are sworn in, they
‘didn’t give up [their] First Amendment right to talk
about—maybe even shed light on—the important
issues of our time.’” Id.
Justice Brandeis and Professor Meiklejohn would
both say that Judge Altman appropriately, and
meaningfully, contributed to public discourse. In
doing so, Judge Altman articulated perhaps-
controversial views. But his choice to express himself
is controversial only to those who expect only pablum
from a practicing lawyer or a sitting judge. Is Judge
Altman’s speech sanctionable by government, without
regard to First Amendment protection? That is what
the Court should clarify here.
Free Speech is no less expansive for lawyers (and
others) who are not judges. Thus, “the centuries-old
maxim cogitationis poenam nemo patitur (no one is
 11

punishable solely for his thoughts) permeates our

law.” United States v. $11,500.00 in United States
Currency, 869 F. 3d 1062, 1075 (9th Cir. 2017). “Even
in its capacity as educator the State may not assume
an Orwellian ‘guardianship of the public mind’….
.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,
286 (1988) (Brennan, J., with whom Marshall, J., and
Blackmun, J., join, dissenting) (quoting Thomas v.
Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring)).
The Petitioners in the instant case are not the only
outspoken attorneys who have faced Bar ethics
sanction for controversial statements on matters of
public interest. Attorney Marla Brown, who FALA
member Krista Baughman represented, was forced to
defend herself in a recent Bar proceeding for political
statements having nothing to do with any ongoing
case or court proceeding:
“A Los Angeles attorney who posted
‘shoot the protesters’ on social media
during racial justice demonstrations ….
has persuaded a California judge that
she should not be sanctioned. Judge
Dennis Saab of California’s state bar
court on Tuesday said state bar
prosecutors had not established that
Marla Brown meant to incite violence or
a riot with a series of posts she made….
Krista Baughman… who represented
Brown, said in a statement that Saab’s
decision is a victory for ‘all California
attorneys who wish to exercise their free
speech rights without fear of
punishment.’ … The state bar in March
 12

charged Brown with four counts of

professional misconduct, including
moral turpitude…. Saab found that
Brown’s social media posts were
‘unbecoming of an attorney,’ but also
that she posted ‘in her capacity as a
private citizen’ and that her posts were
‘completely unrelated to the practice of
law.’”
David Thomas, Lawyer who said George Floyd
protesters should be shot wins ethics trial, Reuters
(October 4, 2023, 2:55 PM), https://www.reuters.com/
legal/legalindustry/lawyer-who-said-george-floyd-
protesters-should-be-shot-wins-ethics-trial-2023-10-
04/.
In Brown’s court case, the headings in the State
Bar of California’s brief made its constitutional
interpretation quite clear: “The First Amendment
does not Shield Respondent’s Misconduct . . .
Statements Imbued in Falsity do not Enjoy
Constitutional Protection.” In the Matter of Marla A.
Brown, The State Bar Court of the State Bar of
California, Case No. SBC-23-O-30270-DGS [State
Bar’s Closing Brief, 7/28/23 at 15] accessible on-line
at https://discipline.calbar.ca.gov/portal/Document
Viewer/Index/YTjKffwuS2oU93--
UibgyIboxlfr8yT1mHrQPpN9wBVkVhBbnXMUu
wjxqb__h2_gaLYH5TTlfAjwEqcpBY4jqO7E8sknO
H3gPVDblOvij-w1?caseNum=SBC-23-O-
30270&docType=Pleading&docName=Brief&docT
ypeId=269&isVersionId=False&p=0
In support, the California Bar’s brief cited In the
Matter of Dixon (1999) 4 Cal. State Bar Ct. Rptr. 23.
 13

And though Dixon never adopted anything like an

“imbued with falsity” standard, decisions like Dixon
are readily subject to misinterpretation. For example,
the Missouri Supreme Court, in In re Westfall, 808
S.W.2d 829, 366-67 (Mo. 1991), stated that “an
attorney’s voluntary entrance to the bar acts as a
voluntary waiver of the right to criticize the judiciary.”
Id.
If regulators silence expression of the informed
opinions of lawyers—which is lawyering itself—they
silence justice. Attorneys speak, associate, and
petition to invoke law, enable judicial power, and
obtain justice.
This Court consistently shows humility about
what the future may hold, and willingness to revisit
and refine its rulings: “I have to accept the real
possibility that ‘if we had to decide today . . . just what
the First Amendment should mean in cyberspace, . . .
we would get it fundamentally wrong.’” Denver Area
Ed’l Telecomm’s Consortium, Inc. v. FCC, 518 U.S.
727, 777 (1996) (Souter, J., concurring) (quoting
Lawrence Lessig, The Path of Cyberlaw, 104 Yale L.
J. 1743, 1745 (1995)).
Here, something important remains unresolved.
“The Supreme Court has addressed numerous First
Amendment issues involving lawyers, of course, but in
all of them has declined to consider directly the
central conceptual issue of whether lawyers possess
diminished free expression rights, as compared with
ordinary, non-lawyer citizens.” W. Bradley Wendel,
“Free Speech for Lawyers,” 28 Hastings Const. L.Q.
305, 305 (2000-2001). Thus, remaining “unanswered...
is how the constitutional guarantee of freedom of
expression ought to apply to the speech of attorneys
 14

acting in their official capacity.” Id.; see

generally Margaret Tarkington, Voice of Justice:
Reclaiming the First Amendment Rights of Lawyers
(Cambridge Univ. Press 2018); Margaret Tarkington,
“A Free Speech Right to Impugn Judicial Integrity in
Court Proceedings,” 51 B.C. L. Rev. 363
(2010); Margaret Tarkington, “The Truth Be Damned:
The First Amendment, Attorney Speech, and Judicial
Reputation,” 97 Geo. L.J. 1567 (2008-2009); Terri
Day, “Speak No Evil: Legal Ethics v. the First
Amendment,” 32 J. Legal Prof. 161 (2008); Brian E.
Mitchell, “An Attorney’s Constitutional Right to Have
An Offensive Personality - United States v. Wunsch
and Section 6068(f) of the California Business and
Professions,” Code 31 U.S.F. L. Rev. 703 (1996-
1997); Attorney's Criticism of Judicial Acts as Ground
of Disciplinary Action, 12 ALR3d 1408; Lindsey
Keiser, “Lawyers Lack of Liberty: State Codifications
of Comment 3 of Rule 8.4 Impinge on Lawyers’ First
Amendment Rights,” 28 Geo. J. Legal Ethics 629
(2015).
Professor Tarkington explains, in A Free Speech
Right to Impugn Judicial Integrity in Court
Proceedings (citations removed), at 365-66:
Notably, in…. cases where attorneys
have been sanctioned for their speech,
the arguments the attorneys made,
though perhaps inartful and sometimes
exaggerated, were relevant to a claim,
argument, or motion before the court.
Attorneys have been sanctioned in both
criminal and civil cases for impugning
judicial integrity for…. seeking recusal
or disqualification…. claims filed against
 15

judges, arguments that a litigant or

criminal defendant was denied due
process… and arguments regarding
judicial incompetence…. [S]anctions
imposed have been severe [and
sometimes] imposed on the client as
well…. Indeed, citing one such case, the
Utah Supreme Court warned criminal
defense attorneys to be wary of the
“pitfalls” that accompany making
arguments that a criminal defendant
was denied due process because of a
biased judge.

CONCLUSION

Legal ethics sanctions for attorneys expressing

sincere but controversial ideas violate the First
Amendment. Lawyers must not be subject to such
speech-chilling ethics regimes as now exist, which
deny First Amendment protection for attorneys’
individual opinions expressed about matters of public
interest. This Court should clarify that such sanctions
regimes have no place in a nation committed to open
discourse.
 16

Respectfully Submitted,

JONAH K. DICKSTEIN GARY S. EDINGER

100 South Ashley Drive (Counsel of Record)
12425 28th St. N., Ste 600 305 N.E. 1st Street
Gainesville, Fla. 32601
D. GILL SPERLEIN (352) 338-4440
345 Grove Street, 2nd FL [email protected]
San Francisco, CA 94102
Counsel for Amicus FALA
EDWARD S. RUDOFSKY
Five Arrowwood Lane
Melville, New York 11747

MATT KEZHAYA*
150 S. Fifth St., Ste 1850
Minneapolis, MN 55402

* On the Brief