Attorneys have a rule prohibiting them to "falsely" criticize a judge or a candidate for a judicial seat during election campaign.
Of course, the rule is interpreted as a complete gag on criticism of judges, with severe sanctions, up to loss of livelihood and incarceration.
As an example, attorney and publisher Roger Shuler, Alabama, was put in jail for an indefinite period of time for criticizing misconduct of police, the Alabama Governor and several judges, and was released after a media outrage after 5 month in jail.
Dr. Richard Fine, California was released after being put in jail for "contempt of court" by the very judge whose misconduct and corruption he was criticizing. Dr. Fine was put in jail for an indefinite period of time, and was "abruptly" released after 1.5 years in jail, with a major portion of it spent in solitary confinement. Yet, as a result of Dr. Fine - who was disbarred for his efforts to clean up the state judiciary - California legislature gave local judges a retroactive immunity for CRIMINAL corrupt acts, an unheard-of scope of immunity. And, no corrupt judges correctly pointed out by Dr. Fine suffered any accountability.
And, as the freshest example of retaliation, the Pennsylvania Attorney General Kathleen Kane was railroaded into a criminal felony conviction for her investigation of the "ol' boys' club" exposing misconduct in the highest judicial and prosecutorial offices in the state.
Seeing what is occurring - and is still occurring - to attorney whistleblowers against official, and judicial, misconduct, attorneys keep mum and fail to inform the public about their opinions about judges - which is a problem recognized 136 years ago by a Pennsylvania judge:
“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).
Now a similar rule came to the attention of the press and bloggers regarding the licensed mental health professions where mental health professionals actually asked to take that rule out because they wanted to express their opinion that the presidential candidate Donald Trump is not fit for office because he is nuts.
The mental health professionals openly asked the government to repeal the so-called "Goldwater rule" adopted by the American Psychiatric Association in 1973 (at the height of the Cold War, by the way) "declaring it unethical for any psychiatrist to diagnose a public figure’s condition “unless he or she has conducted an examination and has been granted proper authorization for such a statement.”
So far, 2,200 mental health professionals have trumped the rule to criticize Trump - by signing the "anti-Trump Manifesto" of "citizen therapists".
I do not know whether Donald Trump is nuts or not, and do not share the opinion of the mental health professionals, but I do not see why those mental health professionals cannot express that opinion openly if they see the signs. It is, after all, their liability for defamation to Donald Trump, and if they are willing to risk it - freedom of speech allows criticizing a candidate to public office.
But, in both cases, of attorney licensing and of mental health professionals licensing, the issue becomes - how do "gag" rules on criticism of people already occupying public office and who are running for public office, criticism fully protected by the 1st Amendment, comports with the declared purpose of occupational licensing - protecting the public?
Isn't fully informing the voters actually protecting them from bad decisions at the polls? And gagging criticism unhealthy for the democracy and the public?
Anyway, it is the second profession, after lawyers, starting to raise the issue that the licensed professionals should not be prohibited from criticizing candidates for public office using their professional knowledge.
And, in the situation with mental health professionals, they often see no more of the patient before diagnosing the patient than they see Donald Trump, and, possibly, they see a lot more of Donald Trump (on TV), and are a lot more capable of reviewing his reactions, mimics, body language, conduct etc., what is usually used to return a mental health diagnosis in a one-to-one meeting with a patient.
Granted, Donald Trump did not choose critics as his physicians.
And, granted, if he did, the diagnosis would have been covered by privacy laws.
And, granted, a mental health diagnosis, casually slapped on a person for his or her political views or behavior in a political campaign, may be, first, damaging, second, may smack of Soviet-type "punitive psychiatry", and, third, raises real defamation issues for the person publicly slapping somebody who never hired that person as a mental health professional with a mental health diagnosis.
That's why when mental health professionals publicly express their opinions about mental health of candidates for public office, those opinions are not valid medical diagnoses.
And, of course, such a long-distance mental health evaluation will not stand in court, if mental health professionals are sued for defamation.
And, accusing somebody to have a mental health disease in compatible with holding public office, while that person does not have such a disease, is not simply defamation, but defamation per se, where no harm needs to be proven.
Yet, it is the mental health professionals' own risk to take, and the state, as a condition of licensing their livelihood, has no right to impose any dating-back-to-Cold-War gag "ethical rules" on criticism of candidates for public office.
Which applies also to lawyers and to everybody else.
When a presidential candidate, a person who controls "the big red button", is sought to be elected, the public needs all information it can get to make a decision who to choose.
That's why the 1st Amendment is even in existence - to promote public debate of often sensitive issues and to thus help preserve the democracy in this country.
For that reason, there should be no "gag ethical rules" on criticism of public officers or candidates of public office for licensed professionals of any kind.
Not lawyers, not doctors, not mental health professionals, not anyone else.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
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