Lawyer Asserts First Amendment Right to Describe Judge as a Witch

Legal Ethics

Lawyer Asserts First Amendment Right to Describe Judge as a Witch

Posted Jul 16, 2008, 01:23 pm CDT
By Debra Cassens Weiss

A Florida lawyer who called a judge an “evil, unfair witch” on a blog has submitted a brief with the Florida Supreme Court that contends his comments were protected by the First Amendment.

Lawyer Sean Conway submitted the legal papers after the court asked him and the Florida Bar to brief the issue, the Daily Business Review reports. Before that, Conway had agreed to a public reprimand in a conditional plea deal with the Florida Bar. The settlement was subject to approval of the Florida Supreme Court.

Writing on JAABlog, Conway had called Judge Cheryl Aleman an "evil, unfair witch,” and said she was “seemingly mentally ill.” He later said he was angry because the judge was giving defense lawyers only one week to prepare for trial.

The brief (PDF) by Conway’s lawyer, Michael Wrubel, said Conway called Aleman a witch on Halloween 2006 and the comment was an example of figurative speech, the Daily Business Review story says. Conway’s use of the word “seemingly” was a cautionary term protected by the First Amendment, Wrubel asserted.

He also said the remarks were permissible hyperbole. The ACLU supported Conway in an amicus brief (PDF).

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Posted by Kay Sieverding - 1 month, 2 weeks, 6 days, 4 hours, 17 minutes ago

I think there should be an absolute rule that a defense attorney gets at least 20 days to prepare for a trial. If that is the guarantee for a civil motion, how can a criminal trial get less due process?

Don’t you think that there could be a list of names that shouldn’t be used in court or on legal blogs by litigants, lawyers, criminal defendants, or pro ses? I like the word “courtly”. It shouldn’t be that hard to come up with a list of words to be avoided. I was blogging on another web site recently and I tried up upload a reference to Dick Cheney and the blog wouldn’t load because it “doesn’t use the D--- word”. That was funny I thought but I don’t think that words like “b---, w---” should be used in either direction in either court or writing about court.
Posted by insomniac Kay - 1 month, 2 weeks, 5 days, 14 hours, 48 minutes ago

It looks from another post, Roscoe, like you are a lawyer in Broward who is a friend of “Sean’s” and personal experience with “Cheryl”

The Daily Business Review article said “the Bar wrote. “The respondent never sought judicial review of the judge’s continuance policy through an appeal nor did he file any complaint of judicial misconduct with the appropriate agency.”

Conway said he filed a Judicial Qualifications Commission complaint against Aleman and interviewed with the JQC’s special counsel who was prosecuting Aleman. Conway said he is shocked that the Bar would misrepresent that in a brief, when they could easily check with the JQC.

However, the state Constitution maintains that JQC complaints are confidential until probable cause is found against the judge.

So one issue seems to be whether a lawyer blogging under his own name can criticize a judge or whether criticisms of judges need to be confined to secret judicial complaints.

As you probably know, the federal judicial disability complaint procedure was recently revised so that results are supposed to be public. However, those that I have seen published don’t identify the name of the judge.
Posted by sleepless - 1 month, 2 weeks, 5 days, 14 hours, 38 minutes ago

There is a lot of info on judicial disability complaint procedures and results at Knowyourcourts web site such as

http://www.knowyourcourts.com/featured_article.htm

The Devil You Know: Judicial Selection In America
Working Draft by Kenneth L. Smith
Posted by Conlaw Buff - 1 month, 2 weeks, 5 days, 9 hours, 17 minutes ago

Evidently my Monty Python joke didn’t go over well.

First Amendment rights of lawyers trump Court rules and State Bar rules about maintaining the intergity of the judiciary. It undermines the judiciary when a Judge attempts to undermine Constitutional rights.
Posted by kay sieverding - 1 month, 2 weeks, 5 days, 8 hours, 26 minutes ago

I agree that it “undermines the judiciary when a Judge attempts to undermine constitutional rights.”
I think both the judicial complaint process and the attorney complaint process need to be more formal and predictable.

I think blogging is the most amazing political force and will change the world. Probably the judge wouldn’t have restricted defense attorneys to one week of preparation if she thought a blog would make it public.

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