First Amendment Sacred, Except When Criticizing Judges

Famous Lawyer Loses Fight for Right to Criticize Judges
The Associated Press by Ed White - January 21, 2009

A federal appeals court threw out a lawsuit Tuesday by Geoffrey Fieger, who claims his criticism of Michigan judges is protected by the First Amendment. The court, in a 2-1 decision, overturned a significant ruling that had gone in Fieger's favor in a long-running clash between the outspoken and often unbridled trial lawyer and the Michigan judiciary. Fieger got in hot water in 1999 when he gave a blistering critique of three state judges who reversed a $15 million malpractice verdict against his client. "I declare war on you," he said on a radio show -- and much more. The Michigan Supreme Court said Fieger violated rules of professional conduct. But a federal judge in Detroit found the civility rules overly broad and unconstitutional.

The 6th U.S. Circuit Court of Appeals has reversed that ruling, saying, in part, that Fieger can't show any harm from a reprimand. And the "threat of future injury arising from a general desire to criticize the Michigan judiciary is significantly diminished" by the state Supreme Court's narrow rules, the 6th Circuit said. "The Michigan Supreme Court emphasized that Fieger violated the rules, not because he criticized judges, but because he made vulgar, personally abusive comments about participants in a pending case," the appeals court said. Fieger said the judges who reversed his medical-malpractice verdict were "three jackass ... judges." He likened them to Nazi leaders and said Judge Jane Markey was "Eva Braun," wife of Adolf Hitler. Fieger agreed to a reprimand while reserving his right to go to court to challenge certain rules of professional conduct for Michigan lawyers. A message seeking comment was left at his office Tuesday.

In a dissent, Judge Gilbert Merritt of the 6th Circuit said there's nothing "narrow" about Michigan's rules for lawyers. "Comparing judges to Hitler and Goebbels evidently falls on the wrong side of the line," he said. "But would it be permissible to ... say that the judges 'behaved dictatorially?' "Saying that a judge is a 'jackass' appears to be impermissible -- despite the fact that the word is a non-vulgar name for a donkey," Merritt wrote. "But would it be permissible," he added, "to vary the 'form and manner' and say that he is a 'stubborn idiot,' a 'right-wing radical,' a 'doctrinaire ideologue' or 'driven by party politics?'" Former Michigan Supreme Court Chief Justice Cliff Taylor, who in 2006 wrote the 4-3 opinion reprimanding Fieger, said he was trying to address conduct "at the very center" of incivility. "I want lawyers to speak about what the court has done professionally, not as vulgar backroom brawlers," Taylor said.