"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, August 30, 2017

Criminal contempt for criticism of a judge - the revival of seditious libel in the United States

There was a crime of seditious libel in the Old Country - the good old England.

Here is how its origins were described in a 1983 law review article:

It was supposedly replaced in the U.S. by the 1st Amendment, saying the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Then, the U.S. Congress delegated rule-making authority in criminal cases to the U.S. Supreme Court, and the U.S. Supreme Court produced a Rule 42, containing the following clause:

"If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."

Wait a minute - but, the U.S. Congress:

  • had no authority to re-delegate to the U.S. Supreme Court its Article I legislative authority delegated to the U.S. Congress by the People of the United States;
  • had no authority to make law to infringe freedom of speech, and thus could not re-delegate such a right to infringe.
And, the U.S. Supreme Court consistently rules in 1st Amendment cases that any content-based regulation of speech is subject to strict scrutiny.

But - a branch of the government, the U.S. Supreme Court, is allowed to make a rule making it a criminal contempt to criticize itself?  

And this is in the supposedly democratic United States of America in the 21st century?

So, how will we make the powerful 3rd branch, the judicial branch, accountable if judges are involved in misconduct and corruption, if:

  • they gave themselves a gift of absolute immunity for malicious and corrupt acts;
  • they gave themselves a gift allowing them, as alleged victims of a crime of "criminal contempt of court", to 
    • initiate criminal proceedings against their critics;
    • appoint prosecutors, private or public, those whose livelihood they completely and totally regulate through licensing; and 
    • adjudicate such crimes?

And, note that judicial corruption is now rampant, people who raise that issue are targeted and punished, no present political candidates - President Trump included - made eradication of judicial corruption as their campaign promise, and those who do criticize judges and do make eradication of judicial corruption their campaign pledge, are being prevented from practicing law for their efforts?

In 2013, the prominent constitutional scholar Eugene Volokh condemned criminal prosecution of a pro se litigant for criticizing a judge.  Of course, in 2015, the same Eugene Volokh ducked at the opportunity to voice to the U.S. Supreme Court that professional prosecution of an attorney on the same grounds of reasonable criticism of a judge is unconstitutional - but everybody has their limits of courage, especially on a topic that may involve their own livelihood.

In view of tremendous powers of courts to take away life, liberty, property, children, ruin careers, make people destitute, people are afraid to speak out against court corruption.

Instead, we see crowds of journalists and commentators in the social media treating obviously corrupt judicial decisions as Gospel and shredding commentators who dare to raise the issue of such bias and corruption - as long as court corruption is targeting individuals that the crowds do not like.

Apparently, it is not prohibited, and it will not constitute criminal contempt to praise corrupt court decisions.

So, is the American public aware that its 1st Amendment is no more in the American courts?

That judges who swear to uphold it as the condition of taking the bench, gave themselves a carte blanche to put you in jail for exercising it - by criticizing their own misconduct?

And, where are the crowds, the petitions to fight this blatant violation of the 1st Amendment and freedom of speech?  This rule by which American federal courts gave themselves the right to prosecute people for seditious libel, for criticism of the government?

But, silencing a discussion is, as Judith Koffler, author of the law review article I interlinked above, state, is an equivalent of claiming infallibility - that the judiciary is never wrong.

And, if we punish for criticism of a judge, it means that criticizing this particular branch of the government, that undertook to police criticism against itself, is "constructive treason".

Are we still in a democracy?

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