Language of New York Times v. Sullivan Shows Attorney Criticism of Judges is Protected Speech

I continue to hear from attorneys all over the country who have had their licenses threatened or have been suspended because of their criticism of judicial officials.  These sanctions are always justified under a claim that limitation on an attorney's free speech is needed to protect the reputation and integrity of the courts and that such limits are okay because attorneys are "officers of the court" and their criticism might be more believed by the public.  It is the same argument - the need to defend the reputation and integrity of public officials - that Federalists used when defending the 1798 Sedition Act which criminalized criticism of the President and members of Congress.

It might be a good time for those state supreme courts sanctioning attorneys for judicial criticism to review the language of New York Times v. Sullivan that clearly rejected this approach:

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U. S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U. S., at 376, surely the same must be true of other government officials, such as elected city commissioners.^[14] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

New York Times Co. v. Sullivan, 376 US 254, 272-273 (1964)

It is inconceivable that the United States Supreme Court would prohibit state courts from using contempt powers to punish attorneys for judicial criticism but then say the more severe sanction of taking away someone's law license, and destroying their livelihood, would be permitted on that same basis.  State supreme courts interpreting Rule 8.2 to sanction attorney criticism of judges unrelated to a pending court proceeding are clearly violating the Constitution and Supreme Court precedent.  Yet these decisions continue to be handed down despite the fact these decisions would not even come close to surviving U.S. Supreme Court review should cert be granted.  There is no support on the Court, from liberals or conservative justices, for these types of limits on attorney criticism of judges.

As recently as 1991, the United States Supreme Court indicated that the only time an attorney's speech can be more limited more than a private citizen is when that speech "obstruct[s] the fair administration of justice" in a pending case. See Gentile v. State Bar of Nev., 501 US 1030 (1991).  Although the justices in Gentile split on whether the facts met this exception, they all agreed that this was the only time attorney free speech could be limited.

As discussed in a previous post, the commentary to Model Rule 8.2 shows that it was intended to adopt the New York  Times v. Sullivan standard and explicitly rejected the practice of state courts disciplining attorneys for judicial criticism that is "intemperate in tone."  Yet that practice continues.