As Mr. Markus notes, the Broward Blog and allegedly intemperate judicial commenter Sean Conway made the front page of the Sunday NYT:
I am a strong advocate for professionalism and civility among members of the Florida Bar.
For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.But the State Supreme Court ultimately accepted Mr. Conway's earlier reprimand agreement with the bar, which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under the First Amendment.”
And without wading into the particulars of Mr. Conway's case, I also obviously feel there is a value in lawyers commenting on -- and sometimes even criticizing where appropriate -- the courts and the legal process and attorneys and judges who participate therein.
In my view the entire panoply of expressive tools should be available for that purpose -- sober essays, humor, satire, irony, poetry, song, drum circles, Bo Derek photos whatever.
But when is too far too far?
Some of the situations identified in the Times article are unique -- if you are practicing before a particular judge in a particular case, you owe specific obligations to the Court that arise from that representation, whether you are in court, on the beach, in bed with your significant other, or posting on this crappy blog.
But what are the constraints that should apply in situations where we don't have a case in front of a particular judge, but still have an opinion? Do we as lawyers have the right to express it, and if so, how and where? In a classroom, in a law office, at a restaurant, or on a blog?
A related question is what is the appropriate sanction, if any, for comments that go "over the line."
Is the disciplinary process always necessary, or is opprobrium by peers or persuasive counterarguments a better solution?
Should the test for disciplinary action be, as the Bar suggests, whether or not the comment "was uttered in an effort to expose a valid problem"?
Look at poor Mr. Liar Liar Pants On Fire Joe Wilson, the new Joe The Plumber/Bob Roberts of the 20 percenters.
Should he be formally censured or admonished by the House, or is it sufficient that fair-minded people reacted with shock and derision at his outburst?
To me the latter is the best course. We live in a democracy, not a monarchy, and an idiot should be allowed to heckle the President without fear of formal sanction, even an idiot who coincidentally has spent much of his career defending the Confederate legacy.
Besides, what will a censure mean to Joe Wilson as compared to a solid arse-kicking by Jon Stewart?
What about the tea baggers who marched on DC over the weekend? What is the best way to deal with this type of free speech:
Or how about Serena Williams, who threatened to shove a tennis ball down a line judge's throat on Saturday, then showed up at the MTV Video Music Awards later that night and will be playing in the women's doubles final today? Is there a point to the formal $10k fine, or does treating her like a superstar on MTV send a bigger message?
The line of protesters clogged several blocks near the Capitol, according to the D.C. Homeland Security and Emergency Management Agency. Demonstrators chanted "enough, enough" and "We the People." Others yelled "You lie, you lie!" and "Pelosi has to go," referring to House Speaker Nancy Pelosi, D-Calif.
Throngs of people waved U.S. flags and held signs reading "Go Green Recycle Congress" and "Obama Bin Lyin.'" Men wore colonial costumes as they listened to speakers who warned of "judgment day" - Election Day 2010.
Other signs - reflecting the growing intensity of the health care debate - depicted President Barack Obama with the signature mustache of Nazi dictator Adolf Hitler. Many referred to Obama as a socialist or communist, and another imposed his face on that of the villainous Joker from "Batman."
Obama was articulate and bright on 60 Minutes last night as usual (see, Joe was right!), lamenting that "civility" is not very interesting and there has been a general coarsening of discourse in our culture generally.
He's right, of course. The bigger question is what tools do we use to address this problem, and which ones should be used, and when.
My own view -- save formal sanctions for the really bad stuff.
Mockery, derision, and robust condemnation with a few YouTube clips thrown in should be adequate most of the time.