"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, April 27, 2016

A new U.S. Supreme Court 1st Amendment case - factual mistake in sanctioning an employee for protected conduct is not a defense in a civil rights lawsuit

Yesterday, the U.S. Supreme Court has issued an interesting opinion where it protected, in a majority opinion, the right of governmental employees not to be punished for conduct protected by the 1st Amendment. 

Here is the opinion in full.

The case is decidedly weird, on many levels.

The gist of it is that a police officer was demoted because somebody saw him (and reported him to his supervisor) standing with a sign supporting a certain official in his election campaign and talking to that person's campaign workers.

The supervisor perceived that reported conduct of the police officer as participating in a political activity - which is not allowed to police officers and other government employees.

It was actually a misunderstanding.  The police officer held a sign he was bringing home to his bed-ridden disabled mother at her request, he did not support the campaign of that individual personally.

The big fight was that the officer was demoted and sued for discrimination on 1st Amendment grounds, among other grounds.

The dissent said that, since it was a misunderstanding and the officer did not ACTUALLY engage in political conduct, 1st Amendment cannot be invoked in his lawsuit.  In the opinion of the dissent, what was done to the police officer (demoting from investigator to patrol) was "callous, but not unconstitutional".

Whether the 1st Amendment could or could not be invoked by the officer in a discrimination lawsuit made a difference between whether the officer's civil rights case would be dismissed or allowed to proceed.

The U.S. Supreme Court reversed the lower courts' decisions and allowed the officer's case to proceed, stating that factual mistake is no defense.  If the officer's employer believed that the officer is demoted because of his participation in a political campaign, that was activity protected by the 1st Amendment, and the lawsuit could proceed.

The issue though is not that simple.

In fact, if the officer's employer believed that the officer did participate in a political campaign, and did that openly, so that his holding of the sign while talking to the campaign workers of a certain political candidate could send a message to the public that the local police endorses that political candidate, and where such political activity was prohibited as a condition of employment, the government was justified to demote or fire the officer, 1st Amendment or no 1st Amendment.

Such firing would definitely have met the required strict scrutiny test, because on the other side of the balancing test as to whether the 1st Amendment rights were violated and whether such a demotion or even firing would be permissible under the 1st Amendment, is the requirement of government neutrality and non-endorsement by the government of political candidates, to preserve integrity of democratic elections.

So, I am afraid, we did not see the last of that case, it can return to the U.S. Supreme Court after its round through the lower courts on remand, and, of course, I will report it if it does return.

Stay tuned.

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