The Guiliani Alarm-bell: A New Free Speech Battleground.
At some point, Rudy Guiliani crossed the line from competent lawyering to being a little far out there in his representation of former President Donald Trump over the 2020 election results. His public statements were bold and, at times, out of touch with reality in my opinion. The truth, however, remains that he was representing a client in a political process and, as such, he indisputably uttered political speech on Trump’s behalf – speech that is protected by the First Amendment.
The New York Appellate courts, however, have taken a far different view of his speech. On June 24, 2021, a New York Appellate court temporarily suspended Guiliani’s license to practice law for allegedly making demonstrably false and misleading statements to courts, the legislature, and the public, posing an immediate threat to the public, and directly inflaming the January 6, 2021 Capitol riot. The decision actually highlights Guiliani’s repeated statements to the media as a primary example of the danger he poses to the public.
As someone who has been part of litigating contentious First Amendment cases and who has devoted substantial personal study to it, I cannot overemphasize how much this decision scares me for its nature as a naked attempt to punish political speech. Rudy Guiliani may be the world’s biggest liar. He may have manufactured every single public claim about the 2020 election. You are free and even thinking rationally to draw those conclusions. The First Amendment, however, protects his right, and by extension, Donald Trump’s right to play fast and loose with facts in the political arena and in advancing those claims in court as part of a political process.
What we see from the New York Appellate court is a blatant attempt to leverage the “officer of the court” definition for lawyers into some legal basis to heavily police lawyers’ speech. I have made no secret of the fact that I think that the “officer of the court” classification for lawyers is one of the biggest loads of malarkey that the American public is sold.
Yes, lawyers do have certain ethical obligations to courts (i.e., not knowingly making misleading statements of fact). They, however, do not work for the court, and they have equally strong ethical obligations to those that they represent, especially when it comes to assisting them in political processes and managing a public narrative pertaining to those processes – whether they be judicial or what we more commonly call political.
A critical part of assisting a client in navigating a high-profile political process is to clearly articulate their theories – no matter how far-fetched – to the public. In other words, a lawyer is not just hired to represent a client in the courtroom or in an adversarial government proceedings. He also takes on the role of being the client’s medium to speak publicly on his matters.
The number of judges who cannot accept or properly draw the line between a lawyer’s competing responsibilities is rapidly growing and poses a dangerous threat to free speech. By shutting a lawyer’s mouth outside the courthouse or punishing a lawyer for what he says outside the courthouse, the court are chilling the speech of actual parties in legal and political processes by preventing their counsel from articulating their theories to the public. Sanctimoniously guising this speech censorship as being in the public interest and to uphold the integrity of the legal process is a poor cloak for court systems that are steadily denying parties their right to comment on political processes – yes, actual court proceedings are political processes.
The speech castration of lawyers will not stop there either. For example, for the past four years, Connecticut has toyed with adopting ABA Model Rule of Professional Conduct 8.4(g), and other states already have. Connecticut’s latest attempt to adopt it drew its inspiration from a colleague of mine who chose to speak in blunt terms when a bunch of self-righteous race-baiters sought to educate him on his white privilege.
Model Rule 8.4(g) prohibits a lawyer from engaging in any conduct that is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This definition is purposely so broad as to target any speech that a lawyer utters – regardless of time or place.
I have had personal experience with the consequences of this rule although the set of woke knuckleheads who tried to set me up did not really understand its implications or what they could do with it. Let’s just say that I am a little disappointed and not surprised that their wokeness did not exactly inspire a little intelligence.
Tangent aside, but hypothesizing off the facts of my own personal brush with this “rule,” I could lose my law license or otherwise be sanctioned under this rule for going to a social event with other lawyers and saying that I think all homosexual people have bought a one way ticket to shoveling coal in hell while discussing morality-based law. The rule would give some woke jackass a foundation on which to “discipline” me despite the fact that I am clearly uttering speech on a political and social topic.
Unfortunately, courts are steadily charting a path toward a regime of speech censorship of “unacceptable” speech. Guiliani’s suspension is just an early alarm-bell.
Here’s news for the bench. The First Amendment protects unpopular speech from the wrath of an intolerant majority. Rest assured that I will be prepared to fight you to the bitter end when you try to shut my mouth.
