Sheldon Nahmod has a Blog
Gamso - For the Defense

Lawyers and the First Amendment

Two Pennsylvania judges sold children into slavery in the infamous Cash-4-Kids scam.  By law, lawyers who appeared before those corrupt judges were not allowed to stop the human trafficking. Why do judges put self-interest above the public interest?

Suspicious things happen in courtrooms across the country. In one Pennsylvania juvenile court, two judges would send children to juvenile prisons when 99% of other judges would have issued probation as the strongest sanction. There wasn’t a lawyer who appeared before these judges who did not realize that the only explanation was corruption. Had any of these lawyers spoken out, they would have lost their ability to earn a living.

Unlike the rest of the public, lawyers have limited First Amendment rights. A lawyer may not demean judges, or lessen the public’s trust in the judiciary. The New York Times and Gasmo: For the Defense have excellent anecdotes.  Thus, even true statements are sancionable.

In once case, a lawyer called a judge a “evil witch.” The lawyer was reprimanded. Later, that same judge was suspended from the bench for being – you guessed it – an evil with. The lawyer spoke truth to power. That earned him a six-month break from the law.  

Calling a lawyer an “evil witch” on a blog is childish, and not the time of speech we should expect of professionals. Scott Greenfield would no doubt criticize the practice in a post, properly issuing a social sanction to a childish lawyer.  Childish conduct shouldn't earn a lawyer the loss of license for six months. The effect of such suspensions chills lawyer speech.  How close to the line would you go, knowing that you'd lose six months' of income for your speech?

Imagine you were a lawyer who appeared before those Pennsylvania judges. Having done juvenile law for years, and having had thousands of cases of experience to draw upon, you realized something: Only corruption could explain the judges' conduct.

You had no proof. You are not the FBI. You cannot subpoena bank records or install wire taps. Yet you know something was wrong. You log onto TypePad, reading to speak truth to power.

You publish a post indicating your extensive experience in juvenile cases. You produce data showing that its statistically impossible for those judges to be reaching the conclusions they have reached.  You conclusion: Corruption is the only explanation.

There is no doubt that the Pennsylvania State Bar would have come after you. You would be censured, or perhaps lose your law license.

"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman," Supreme Court Justice Louis Brandeis observed.  It is lawyers who can shine the light on judicial corruption.  It is lawyers who are told to bury their lights under a basket.  It is lawyers who are reminded to shut off the lights.

If judges want to increase public trust, then they should – like the rest of us – earn the public’s trust.  Trust is earned by following the law.  Honest judges need not fear sunlight or electric lights.  Honest judges, then, should stop protecting dishonest judges.  Let lawyers speak.