Judges propose to stifle criticism

Monday, April 20, 1998

Several judges in the nation’s largest federal court district propose to punish attorneys who criticize the judiciary.

A proposal which is supported by a committee of judges in the Central District of California would allow for the fining, suspension or disbarment of attorneys who “impugn the character or integrity of any judicial officer.”

Under the measure, a 12-member committee of attorneys would investigate charges submitted by federal judicial officers and recommend disciplinary measures to a three-judge panel, which would then determine the punishment.

Supporters insist the measure is necessary to protect the administration of justice from certain reckless statements made by attorneys.

However, civil rights attorneys, law professors and others contend the measure is a blatant violation of attorneys’ free-speech rights.

Steven Gillers, a New York University law professor who specializes in legal ethics issues, criticized the judges’ proposal to the Los Angeles Times: “It’s terrible. One of the prices you pay for being a public official is that you’ll be subject to public criticism — including criticism that is wrong. It’s just part of our democracy and tradition of free speech.”

Those familiar with the California courts call the proposed rule “the Yag rule” after civil rights attorney Stephen Yagman, who was suspended from practicing before the U.S. District Court for the Central District of California for twice impugning the integrity of the court.

Yagman allegedly made several derogatory remarks about federal Judge William Keller, including comments that the judge was anti-Semitic and “drunk on the bench.”

However, the U.S. Court of Appeals for the 9th Circuit in Standing Committee v. Yagman reversed the suspension, writing that “lawyers’ statements unrelated to a matter pending before the court may be sanctioned only if they pose a clear and present danger to the administration of justice.”

The 9th Circuit relied on the reasoning of Justice Black’s opinion in the 1941 case Bridges v. California:

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”

The committee of federal judges will decide on the proposed disciplinary rule in approximately two months.