Sixth Circuit Rules Even Attorneys Have First Amendment Rights


Cincinnati, Ohio, and New Castle, Kentucky. Late last month the U.S. Sixth Circuit Court of Appeals overturned a lower court judgment and found that the Kentucky Bar Association had violated the First Amendment rights of one of its own members, John M. Berry, Jr. Mr. Berry is a Henry County lawyer, a retired state senator, and the brother of Wendell Berry.

I first wrote about this case for FPR in April of 2011.

Back in 2007, Mr. Berry wrote and circulated a letter to Kentucky’s Legislative Ethics Commission complaining about its dismissal of a complaint against powerful state Republican David Williams. Mr. Williams was allowed to remain present during the ethics hearing on his case, while his accusers were not, which “gave cause for some to speculate that the deck was stacked and the Senator would be exonerated,” Mr. Berry wrote. “I was not, and am not, willing to go that far,” he added, “but I do believe that your Order . . . that exonerated him, was contrary to the undisputed evidence that was presented.”

LEC member Paul Gudgel, a retired Court of Appeals judge, was unhappy with those comments and asked the bar association to investigate. It did, and filed a disciplinary complaint against Mr. Berry with its own Inquiry Commission. That Commission dismissed that complaint, but nevertheless threatened Mr. Berry with future disciplinary action if he continue to circulate his letter. Mr. Berry found that threat plausible and chilling–and hence the court case.

Writing for the majority, Judge J. Rogers of the Sixth Circuit found that the “balance between an attorney’s right to free political speech and a state’s right to regulate attorney conduct is delicate….[and sometimes] the balance is upset and the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government. This is especially problematic when the speech is made by attorneys, who are often the citizens best situated to criticize government abuse.”

The judge took pains to distinguish speech made outside of a courtroom, with the greater limits placed on speech made in court.  

The case was returned to U.S. District Court Judge Danny Reeves, who on August 21 ordered the KBA to pay $185,251 in fees to Mr. Berry’s ACLU attorneys and $6,337 in costs. The KBA will also have a substantial bill from its own attorneys at the white-shoe firm Stites & Harbison.  

The Legislative Ethics Commission keeps its appearance of weakness, and Mr. Williams keeps his exoneration–but now Mr. Berry has his, and for critics of poor government, this is a victory.  


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Katherine Dalton has worked as a magazine editor, freelance feature writer and book editor.  She started in journalism in college, working at The Yale Literary Magazine during most of its controversial few years as a national magazine of opinion based at Yale.  She then worked briefly at Harper's magazine in New York, and more extensively at Chronicles magazine in Illinois, where she was a contributing editor for many years.  She has has written for various publications ranging from the Wall Street Journal to the University Bookman, and was a contributor to Wendell Berry: Life and Work and Localism in the Mass Age: A Front Porch Republic Manifesto.  She lives in her native Kentucky.

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