In the name of avoiding criticism by lawyers that might undermine respect for the legal system, lawyers sometimes lose normal First Amendment rights to comment about legal issues, including judges, because they may be subject to ethical sanctions for making negative comments. In other words, even though judges are public officials normally fair game — at the very core of First Amendment rights — lawyers, who are the citizens most familiar with judges and with the legal system in general, may face ethics sanctions for speaking out.
By this standard, constitutional scholars and political pundits commenting about Supreme Court decisions could be sanctioned, too. Indeed, there are examples of intemperate Supreme Court dissents in which some of our justices might be sanctioned, if they still had licenses.
The theory apparently is that having robust criticism by those most intimately aware of problems will cause the public to doubt, whereas foreclosing criticism will breed respect (through ignorance of reality). This is the same sort of logic that supports the approach to governance in Russia, China, and elsewhere, for example, to criticism of the government and its leaders.
For the rest of us, criticizing government entities and officials is fair game because, right or wrong, everyone is entitled to challenge the government. With the power of judges, prosecutors, legislators, agencies, and government-paid employees behind them, government actors have a decidedly unfair advantage, especially those who are willing to lie or are not smart enough to know better. As has all too often become obvious with the passage of time, “facts” that were labeled as untrue by government actors at one time, especially those labeled as untrue simply because the speaker was labeled as a crank, have a nasty habit of being revealed as true later on. If the NAACP’s lawyers had published similar comments in the 1950s, or even recently, would a court be so quick to demand objective proof? — be careful what you wish for if you demand proof of such accusations.
This reflexive government self-protection also becomes laughable when government actors try to employ the usual government denial machine (including law enforcement tools) to deny objective facts, like scientific facts. The world wasn’t flat, the earth wasn’t the center of the universe, and the globe will continue to warm. And there have been incompetent, corrupt, and otherwise deficient judges and other legal officials. Continue reading