Criminal defense in Austin Texas.

Free Speech and the Courts

Posted By on September 28, 2009

A Dallas lawyer wrote to ask what I thought about this New York Times article, which talked about cases where lawyers have gotten in trouble for blogging or using other “social media” to criticize judges.

“Lawyers, whose freedom to criticize courts is limited by conduct codes, face special risks when using social media.”

Basically, what I think is that the Constitution does not enforce itself, and that we, as lawyers, have a special obligation to stand up for First Amendment principles.

Here in Texas, as in other states, judges are elected.  Lawyers know, better than anyone else, which judges are honest, which are effective, and which ones show up for court.   This is another reason why lawyers should not be punished for saying what they think about courts.

For example, here in Texas, we have a presiding judge at the Court of Criminal Appeals who is an embarrassment to this state.   Unless we stand up and say so, we face the very real danger that Sharon Keller, and others like her, will continue to be elected to our courts.

Now First Amendment freedoms, like all freedoms, are not unlimited.  Perhaps it is not too much of a burden on free speech to require lawyers to refrain from vulgarity, or obscenity, or from name-calling, when criticizing judges.  And of course lawyers cannot disclose client communications or other privileged information.

But allowing public officials to use bar disciplinary rules to squelch public dissent is a kind of obscenity in itself.


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