Lawyers do not have complete, unfettered freedom of speech. Part of the price of a law license is giving up some First Amendment rights to bar association regulation. This creates a tension and sometimes "the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government" as the Sixth Circuit explained recently in Berry v. Schmitt, Nos 11-5456/5515 (6th Cir, July 27, 2012).
John Berry, a lawyer, attended a public session of the Kentucky Legislative Ethics Commission (KLEC) regarding alleged fund-raising violations by Senate President David Williams. Barry became dissatisfied with the way the hearing was conducted and wrote a letter to the commission, which was also passed out to the public and media, criticizing as follows:
The inquiry was conducted entirely behind closed doors with the exception of Sen. Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the public and the media was enough to arouse suspicion, but the exclusion of the complainant (except for brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave calls for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I believe that your Order ... that exonerated him, was contrary to the undisputed evidence that was presented.
The Inquiry Commission of the Kentucky Bar Association later started an investigation regarding whether Berry's letter violated Rule of Professional Conduct 8.2.(a), which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer." The rule was violated, the Inquiry Commission concluded, because Berry's letter "publicly impli[ied] that the Legislative Ethics Commission did not conduct its review appropriately." Berry filed suit claiming that the KBA had violated his First Amendment rights to freedom of speech.
The Sixth Circuit, in an opinion written by Judge John Rogers, a law professor at the University of Kentucky School of Law prior to joining the court, ruled that the KBA had violated Berry's First Amendment rights. The Sixth Circuit's ruling rested on three grounds. First, that "truth is a defense" and that the KBA did not contest the truth of the factual allegations in Berry's letter. Second, statements of opinion are protected by the First Amendment unless they 'imply a false assertion of fact.'" Third, the Court concluded with some pointed observations that Berry's opinion was not based on implied facts:
Berry's opinion was not based on implied facts. The KBA contends that Berry's letter implied that the Commission illegally excluded the public from hearing. Of course, contentions that adjudicatory bodies acted illegally are the staple of appellate briefs, and cannot without more constitute ethical violations. Berry's statements, in any event, did not necessarily imply that the Commission broke the law. Berry may well have known that the Commission was following its regulations, but believe that the regulations themselves were slanted in favor of accused legislators. Certainly, Berry could not be punished for advocating a change in the law. Even assuming that Berry believes that the commission had broken the law, he provided the public with the facts upon which his opinion relied. The public is free to investigate the Commission's procedures and draw its own conclusions. The speaker is not required to provide a comprehensive legal analysis to support his every utterance.
