1373Yes, 1st Amendment Right to Criticize, But Not Too Much!
- Dec 13, 2007Yes, 1st Amendment Right to Criticize,But Not Too Much!
~ ~ ~
Lawyer may lose license for blog entry on Broward judgeA defense attorney's law license is at risk because he posted an angry description on the Internet of embattled Broward Circuit Judge Cheryl Alemán, calling her an "evil, unfair witch."Last week, as Alemán was on trial for alleged misconduct before the Judicial Qualifications Commission, The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge's qualifications or integrity.
In the Halloween 2006 posting on a blog, Conway denounced Alemán for what he said was an "ugly, condescending attitude" and questioned her mental stability after, he says, she unlawfully forced attorneys to choose between unreasonable trial dates or waiving their clients' rights to a speedy trial.
Conway, a former Broward assistant public defender now in private practice, said Wednesday he feels justified in his comments.
"She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it," he said. "And that's why I stand by what I did. Sometimes the language the bar approves of doesn't get the job done."
Conway, 36, also filed a complaint against Alemán with the Judicial Qualifications Commission, the state agency that polices judicial conduct, citing her "deliberate refusal" to follow the law and insolent behavior. Conway says he hasn't heard from the commission since a May 29 letter acknowledging his complaint.
Alemán was unavailable for comment Wednesday.
In the meantime, the judge awaits the outcome of her three-day trial for allegedly threatening to hold defense attorneys in contempt and refusing to remove herself from cases in which she had an acrimonious relationship with the defense attorney.
If she's found guilty, she could face anything from a public reprimand to removal from the bench. Likewise, if Conway is found guilty of violating bar rules, he could face discipline ranging from a reprimand to disbarment.
"She is clearly unfit for her position and knows not what it means to be a neutral arbiter," Conway wrote in his commentary.
That posting on Jaablog, a courthouse weblog created a year ago to examine Broward County judges' performances and legal issues, is protected speech, says Conway's attorney, Fred Haddad.
"There's absolutely no reason that politicians, and that's all judges are here in Broward County, aren't open to criticism," Haddad said. "We've got a [Florida Bar] grievance committee that can't even conceptualize the First Amendment. You're dealing with a group of people that are entrenched in protecting each other."
In a Nov. 21 letter to the bar, Haddad cited a federal case, which found that Michigan bar rules restricting attorneys' criticism of judges to be overly broad and vague and unconstitutional.
In that opinion, U.S. District Judge Arthur J. Tarnow, of the Eastern District of Michigan, wrote: "Limiting an attorney's extrajudicial criticism of a branch of government in the name of preserving the judiciary's integrity is likely to have an unintended, deleterious effect upon the public's perception, since attorneys are often the best suited to assess the performance of judges."
That case is on appeal.
Bruce Rogow, a constitutional lawyer and professor at Nova Southeastern University, agrees that bar rules are overly broad and vague but thinks Conway may have overstepped boundaries.
"I don't think there's any excuse for that kind of crude and cruel language," he said. "The trouble with blogs is that people get carried away and sometimes go over the top. There's just some good judgment that needs to be used in criticizing a judge."
The Florida Bar will now write a formal complaint and submit it to the Florida Supreme Court, which will assign a judge to referee Conway's case.
Tonya Alanez can be reached at tealanez@... or 954-356-4542.
Copyright © 2007, South Florida Sun-Sentinel