The 'Mel Brooks Saga':
or, 'The 1st Amendment Case'
A: It wasn't Mel Brooks, the brilliant comedian and filmmaker. This was in 2006, in the defense of an indigent man who just also happened to be named Melvin Brooks. The case was significant because it was one of the first cases testing the bounds of a lawyer's freedom to criticize an elected official outside of Court. The judge was giving defendants only a week and a half or so (12 days in Mel's case) from Arraignment to Trial to announce if they were ready for trial. I saw it as an obvious ploy to get people to waive their right to a speedy trial by forcing them into requesting a continuance.
Q: So what did you say to the judge that got the Florida Bar involved?
A: Well, I didn't say anything to the judge. I merely made my objections on the record, cited the applicable Rule of Criminal Procedure, and waived speedy trial like everybody else. What happened is I told my friend who was starting up a legal blog & he encouraged me to post an article on it as he needed content to get his blog going. Of course, in the spirit of the 1st Amendment, I used many of the vibrant words any American would feel free to use in a public forum against a misguided public official.
Q: In addition to exposing her actions, you wrote she was an 'evil, unfair witch'?
A: I think I came up with 'witch' because it was Halloween - but I included other words too, like her 'condescending attitude', and how she was 'unfit for her position'. I chose powerful and colorful words because I was exposing an illegal practice and wanted people to read about it. Unlike others, I signed my name to it - adding even more interest to the article. The judge herself was later reprimanded for what was described by the Supreme Court as 'hostile, arrogant, and impatient' conduct.
Q: What was the outcome of the matter?
A: As the blog article spread, the judge's policy changed almost overnight and she was soon giving the usual 4-6 weeks or so that all the other divisions gave people. However, that blog continued to grow in popularity with anonymous writers exposing all kinds of interesting problems in the Broward criminal justice system. Then, about 6 months after that Halloween posting, the Bar claimed to have received an anonymous complaint. The Supreme Court handles lawyer discipline cases - so I was faced with the risk of having to pay the Bar's costly legal fees if I rejected their offer of a simple reprimand and chose instead to fight it with legal briefs. As it turns out, however, I got the benefit of both.
Q: What do you mean 'you got the benefit of both'?
A: When the Supreme Court received the reprimand, I lucked out: they refused to accept it, asking instead for briefs on whether my words were "protected speech under the First Amendment", and noting that an attorney's comments "play an important role in exposing valid problems within the judicial system". It took about 6 months from then for all the briefs to be written. Unfortunately, during that same time, 2 Justices retired and were replaced by two new Justices appointed by the Republican Governor. The reprimand was affirmed, and no opinion was ever issued answering the Court's own question, effectively leaving attorneys with no guidance on the boundaries of free speech outside of court when exposing 'valid problems within the judiciary'. So, I ended up getting the full benefit of Supreme Court review, but without having to pay costly Bar legal fees had I lost. The attorney representing me had been recommending I not take the reprimand - so I am very lucky I did not follow that advice. The Court rejected my arguments, so I would have been stuck paying thousands for the Bar's legal fees.