Herald-Leader Editorial

Stubbornness upheld free speech rights

Ruling reinforces First Amendment

August 1, 2012 

Henry County lawyer John Berry

Thanks to Henry County lawyer John Berry and the American Civil Liberties Union for successfully challenging the Kentucky Bar Association's interference in Berry's right to criticize a government decision.

The 6th Circuit U.S. Court of Appeals last week rebuked the KBA for violating Berry's free speech rights.

While everyone who wants a lively marketplace of opinions and ideas should applaud, lawyers, especially, should be pleased because their rights were directly on the line and also, as the appeals court said, what lawyers say can carry extra weight.

Because lawyers "are often the citizens best situated to criticize government abuse," it's especially problematic when rules governing their conduct are applied in a way that "impinges on the free interchange of ideas that is vital to self-government," said the majority opinion.

The KBA had scolded Berry for criticizing a decision by the Legislative Ethics Commission in 2007.

Legislative Ethics Commission member Paul Gudgel, a retired judge, took umbrage when Berry wrote and publicly circulated a letter criticizing the way the commission had dismissed a fund-raising complaint against Senate President David Williams. Gudgel filed a complaint against Berry under a KBA rule prohibiting lawyers from impugning the integrity of adjudicatory officers.

After a 15-month investigation, the KBA dismissed the complaint against Berry but sent him a letter warning him to refrain from such criticism in the future.

KBA has the power to reprimand, fine and disbar lawyers.

The appeals court ruled that KBA's action chilled Berry's exercise of free speech since it implied he could be punished for exercising his First Amendment right.

The court also ruled the KBA had applied rules governing lawyers' courtroom conduct to a public forum in which Berry was speaking as a private citizen.

Last year, U.S. District Judge Danny Reeves ruled in the KBA's favor. The Cincinnati-based appeals court overturned Reeves' ruling.

In a concurring opinion, Judge Jack Zouhary of Toledo took Berry to task, saying the law is on his side but that his "long-running feud with the KBA is exaggerated" and "this case is more about stubborn Berry having the last word in his dispute with the KBA than about the First Amendment."

To which we can only respond by paraphrasing the late Sen. Barry Goldwater's famous quote: "Stubbornness in the defense of free speech is no vice"

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