6th Circuit sides with Ky. attorney in lawyer-speech case
LOUISVILLE, Ky. — After he criticized Kentucky’s Legislative Ethic Commission, a Louisville attorney was warned in a letter not to make such comments publicly again.
However, the letter to John M. Berry Jr. and the Kentucky Bar Association rule used to justify it amounted to an unconstitutional attempt at suppressing Berry’s free-speech rights, the 6th U.S. Circuit Court of Appeals ruled today in Berry v. Schmitt.
Judge John M. Rogers concluded that, because the letter implied that Berry would face disciplinary action in the future for similar comments, the letter had the effect of stopping further criticisms, even though his comments were fact-based.
Rogers wrote that there’s no point in waiting for the Kentucky Bar Association to punish Berry for similar conduct because there’s little indication the bar will alter its regulations.
“By contrast, Berry is faced with a present quandary — speak now and risk punishment or forever hold his peace,” Rogers wrote.
The decision limits the Kentucky Bar Association’s regulation barring attorneys from knowingly making false statements concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer.
Judge Jack Zouhary filed a concurring opinion wondering why anyone made a fuss over the case.
“Really? This matter is old news and will not likely be pursued by Berry, or anyone else,” Zouhary wrote. “While the law might be on Berry’s side, his long-running feud with the KBA is exaggerated.”
The Kentucky Bar Association issued a written warning to Berry after he knocked the commission over its handling of allegations concerning state Senate President David Williams’ fundraising practices in October 2007. Berry circulated a letter saying the “deck was stacked” in the commission hearing and that they improperly excluded the public from the hearing but allowed Williams in.
The letter said some people could conclude that Williams would be exonerated regardless of the evidence.
“I was not, and am not, willing to go that far, but I do believe that your Order … that exonerated him, was contrary to the undisputed evidence that was presented,” Berry wrote to the commission.
Berry then publicized the letter to the commission, the public and the news media.
The bar association began investigating in November 2007 and, after a lengthy probe, it issued a letter to Berry telling him to “conform your conduct” to the association’s rules in the future.
“Although Berry was not disciplined for his circulation of the October 5 letter, the warning letter implied a threat of future enforcement that elevated the injury from subjective chill to actual injury,” Rogers wrote.
Berry sued the bar association in 2009, saying he wanted to continue to criticize the commission’s investigation of Williams. But, Berry said, he couldn’t because of the threat of being disciplined.
Rogers found that Berry’s criticisms were a mixture of fact and expressions of opinion and not punishable without violating his free-speech rights.
“Had the KBA proven that any of those facts was untrue, Berry’s assertions could have formed the basis for discipline,” Rogers wrote.
Rogers wrote that the court didn’t take a position on the constitutionality of punishing a lawyer who uses profanity or directs threats against the courts or other “unmitigated expression of disrespect for the law.”
“Nothing like that was going on in this case,” Rogers wrote.
In a written statement, Berry, who was represented by the American Civil Liberties Union, praised the court’s ruling.
“The right of every citizen, including attorneys, to publicly express opinions about the performance of public agencies and officials is a constitutional right that is vital to the success of our democracy,” Berry said.
A spokeswoman for the Kentucky Bar Association did not return a message seeking comment in time for this story.
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