"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."
3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).
In Rinaldi, New York top court (NY Court of Appeals) rejected the idea that an investigative journalist writing about judges in the criminal justice system of the State of New York could be sued for libel for saying, among other things that "the plaintiff was and is a corrupt, venal, biased, incompetent and unqualified justice of the Supreme Court of the State of New York who should be removed from office", and that "plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures."
So, impugning integrity or competence of a judge in New York, calling a judge corrupt, incompetent, and who should be taken off the bench is not actionable, because it is an opinion, and an opinion, no matter how wrong, cannot be sued upon (according to the top court of the State of New York), and, there does not exist anything such as a "false opinion", according to the U.S. Supreme Court in Gertz above.
Yet, rules of professional conduct for attorneys, in New York and in all other jurisdictions, continue to contain a rule prohibiting to make "false statements" about competence or integrity of a judge.
But, competence or integrity is what is called by scientists not "falsifiable" concepts (you say "black" about a white object - sheet of paper, dog, cat, sheep, dove, you falsified FACTS, you said that the judge is not competent or not honest - there is no way to measure his competence or honesty without involving subjective opinions, and thus, the concepts of competence and integrity are not falsifiable and cannot be false).
So, statements about competence or integrity of judges cannot possibly be false - because competence and integrity are non-falsifiable concepts.
Those statements are opinions.
And, as opinions, they are not actionable in New York.
And, as opinions, they are subject to the protection of the 1st Amendment to the U.S. Constitution, as there is no such thing as a false opinion - according to the U.S. Supreme Court in Gertz above.
So, why such an unconstitutional rule still exists and is enforced not only in New York but across the United States against attorneys?
Well, as to attorneys, there suddenly emerges the doctrine of waiver - that attorneys waive their constitutional rights, including their right to free speech about judges under the 1st Amendment, and attorneys supposedly waive those rights "in exchange for" the "benefit" of the "special status" of being "members of the bar".
Of course, waivers of constitutional rights should be voluntary, knowing and intelligent, and in writing. Thus, the claim that attorney waive any constitutional right simply be accepting a state license to practice law, has no merit.
It has even less merit when we consider a strong of cases decided by the U.S. Supreme Court clearly saying that government may not regulate speech (a constitutional right under the 1st Amendment) by giving or withholding a state benefit (a law license):
- Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
- Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a resuslt which it could not command directly'";
- Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) - government may not condition a benefit to a person on forfeiture of a constitutional right.
So, the claims that attorneys somehow "implicitly"
waive their constitutional rights, especially the right to free speech - when
speech is their working tool - are nonsense from all points of view.
In reality, being "members of the bar" is a euphemism of having a license to work as a lawyer from the government, which is part of the general scheme of occupational regulation by states and the federal government.
And, regulation of professions by states is done only for the declared purpose of benefits for the consumer, for protection of the consumer.
Lawyers - when cornered - ardently claim that they are not in there for the money only.
For example, in the case People ex rel Karlin v Culkin, 248 N.Y. 465, 4710-471, 162 N.E. 487, 489 (1928) the famous (or, rather in-famous) judge Cardozo, stated: "Membership in the bar is a privilege burdened with conditions. ... The appellant was received into that ancient fellowship for something more than private gain."
So, suddenly state licensing of attorneys is the equivalent of "receiving [the attorney] into an ancient fellowship" as a matter of "privilege burdened with conditions", and the privilege is so beneficial for attorneys that they are deemed to have implicitly waived their constitutional rights while entering that "ancient fellowship" (guild, right?).
Well, guilds existed NOT for the benefit of consumers. They existed as closed societies to obtain benefits from rulers in exchange of bribes and other benefits provided directly to rulers. And, the "ancient fellowships" of lawyers existed specifically as guilds, which, again, had no goal of benefiting the consumer, only themselves.
Of course, in a California decision, which is (like the Cardozo's decision in New York) is used as the basis of definition of the practice of law (because no clear definition exists of what it is that states license and prosecute so vigorously for practicing without a license), the judge calls treating the legal profession as a business as "sordid" - when discussing that lawyers cannot come together into corporations and work for corporations (something that, 95 years down the road, is happening without any problem):
""The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence.
It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client.
There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant.
The corporation would control the litigation, the money earned would belong to the corporation and the attorney would be responsible to the corporation only.
His master would not be the client but the corporation, conducted it may be wholly by laymen, organized simply to make money and not to aid in the administration of justice which is the highest function of an attorney and counselor at law.
The corporation might not have a lawyer among its stockholders, directors or officers.
Its members might be without character, learning or standing.
There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders.
The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state."
Of course, the U.S. Court of Appeals for the 2nd Circuit has, this month, messed up this honorable crap (oops, talk) some more, by stating that somehow
- ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer), BUT
- a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)
So, membership in the legal profession is:
- an equivalent of a privileged membership in an "ancient fellowship" (=guild) (Cardozo, New York);
- not meant only for financial gain (Cardozo, New York, and Judge Richards in California in 1922, but see the 2nd Circuit saying, as of March 22, 2017, 8 days ago, that it really depends, a private attorney, even a private civil rights attorney is only there for the money); and
But, people only waive certain rights in exchange for benefits FOR THEMSELVES.
When we talk of constitutional rights, there must be tremendous benefits for an attorney attained by membership in the state bar (= receiving a state law license) in order to waive (or "implicitly waive") their 1st Amendment rights and to shut up for a lifetime.
By arguing the concept of WAIVER of constitutional rights to criticize judges - something that is allowed, and is constitutionally protected for anybody else, as cases with which this blog article started, demonstrate - as a condition to receive the privilege of "entering ... the ancient fellowship" (Cardozo), the judiciary (licensing agency for attorneys) acknowledges that it is the ATTORNEYS, and not the CONSUMERS (whose protection is claimed to be the whole reason for existence for attorney regulation in the U.S.) who receive benefits under the attorney regulation scheme.
Courts lied again?
What a surprise...
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