When it comes to attorneys speaking out about judges, there are several truths:
- Attorneys have a first amendment right to criticize the judiciary, theoretically subject only to a New York Times v. Sullivan-like standard of maliciousness should that criticism cross the line into defamation (see the page on “Criticism of Judges“);
- Except if the criticism involves an active case the attorney is involved with, and such criticism creates a material risk of interfering with the proceedings;
- But judges are people, too, and some of them are remarkable thin-skinned. They may put you through your paces regardless of the two provisos above.
Which brings us to the case of William Goode. Goode – a peripherally-involved player in a criminal case involving an attorney friend of his – was suspended from federal court practice in the Western District of Louisiana for 6 months. His crime? Publicly criticizing the government’s case after his friend, the criminal defendant, had shot and killed himself.
Goode successfully appealed this discipline, winning because the federal court rule in question was laughably overbroad, operating as a complete bar on any speech related to the trial, the parties, or the issues in the trial.
But it’s hard to muster too much happiness for Goode. He lost a friend, in one of the most painful ways imaginable. And when he publicly expressed his anguish and frustration, he was backhanded by the court for having the temerity to do so. He had to deal with the stressful, expensive process of vindicating himself.
Goode’s case is the living embodiment of the last truth about criticizing judges: your mileage may vary, and you may well be put through the wringer if you choose to exercise your rights.
(The case also illustrates how expansive the “interference with the adjudicatory process” limitation can be. The rule in Louisiana essentially operated as a gag order on anyone “associated” with a matter. Despite not being counsel of record, the 5th Circuit deemed that Goode was “associated” given that he admitted helping his friend’s counsel with trial prep.)