Attorney Argues His 'Witch' Comments About Judge Are Protected Speech

Jordana Mishory

Daily Business Review

Fort Lauderdale, Fla., criminal defense attorney Sean Conway agreed he was in the wrong when he called a controversial Broward judge an "evil, unfair witch" and "seemingly mentally ill" two Halloweens ago.

But following the intervention of the Florida Supreme Court, Conway is attempting to get his conditional guilty plea tossed on the basis that the First Amendment protected his comments.

An attorney should be able to have some liberty in expression and not face disciplinary action, lawyers argued in Florida Supreme Court briefs.

"Questioning a judge's qualifications for an elected position lies at the core of our First Amendment freedoms," the American Civil Liberties Union wrote on behalf of Conway.

He faces Florida Bar discipline for writing disparaging comments about controversial Broward Circuit Judge Cheryl Aleman on a popular law blog. But a deal with the Bar requiring a guilty plea in exchange for a public reprimand was called into question last month by the state's high court.

The justices directed both parties to file briefs by Monday on whether his comments are protected speech under the First Amendment.

The court raised the speech issue but also has been pushing for greater professionalism in the legal community.

In several recent cases, the Supreme Court has stiffened suggested penalties in an effort to make the point that it's getting tough on lawyer misconduct.

Conway and the ACLU, which filed an amicus brief, contend his comments on JAABlog were exaggerated opinions, which are constitutionally protected.

"On Halloween 2006, the respondent referred to Judge Aleman as a mean-spirited witch," Conway's attorney Michael Wrubel wrote. "His comment that Judge Aleman was a 'witch' is an example of figurative speech."

Wrubel also noted the limiting word "seemingly" in Conway's phrase about mental illness "falls squarely into the category of cautionary terms" and should be protected by the First Amendment. Both Conway and ACLU attorneys Randall Marshall and Maria Kayanan defended Conway's remarks as permissible hyperbole.

Aleman did not respond to a call for comment by deadline.

Wrubel said Conway was exercising a freedom exulted by founding father James Madison, and the court should reject his client's guilty plea and dismiss the Bar complaint.

In an interview, Conway said he pleaded guilty out of concern for the outcome in his case.

"With so many years of stagnant, unchanged, old-school policy, I had no faith that justice would make an appearance in my case in a South Florida courtroom," Conway said. Conway also pointed to the fact that Aleman had changed the policy that he blogged about, so he had accomplished the goal of his posting and now needed to move on with his life.

Wrubel said in an interview that just because Conway admitted in writing that he violated a Bar rule doesn't mean that he actually did. The ACLU of Florida contended the Bar's case against Conway "imperils the core values of the Constitution."

And the Supreme Court, which brought up the free speech question on its own, was also apparently troubled. In its order to show cause, the justices directed both parties to address "whether any of the respondent's comments should be considered protected speech under the First Amendment."

The Florida Bar did not see it the same way. Asserting the practice of law is a privilege, the Bar contended free speech rights don't shield an attorney from discipline. The Bar argued Conway did not have any reasonable objective basis to support inappropriate comments about a member of the judiciary. Conway, "as an officer of the court, made statements that directly attacked the qualifications or integrity of a judge," the Bar wrote.

He was accused of violating Bar rules forbidding attorneys from impugning the qualifications of a judge and making statements known to be false or in reckless disregard to the truth. But attorneys claim that you cannot measure the truth of hyperbole.

Nova Southeastern University constitutional law professor Robert Jarvis, who is not involved with the case, said Conway's statements don't mean that Aleman casts spells, wears black hats or flies on a broomstick. He said that just because a theater critic says a play is the worst show ever doesn't mean it's true. He said most readers would know that the critic had not seen and judged every play ever created but could say it for dramatic effect.

The Bar noted Conway agreed to a conditional guilty plea that hinged on him acknowledging his remarks about Aleman were either false or made with reckless disregard. But that does not mean the justices have an obligation to accept the Bar's findings. The Supreme Court has the final word.

Jarvis said the high court's order to show cause indicates that the justices want to take a closer look at this issue instead of rubberstamping the Bar's findings. Jarvis called this case a "no brainer."

"Lawyers are people, too," Jarvis said. "If you cut us, do we not bleed? And just because you become a lawyer doesn't mean you give up your First Amendment rights."

However, he added that Conway's colorful language on the blog diminished his criticisms. He said Conway should have turned to more tangible facts to criticize Aleman than name-calling. Conway also is in trouble for saying Aleman had an "ugly, condescending attitude," was "unfit for her position" and there was "nothing honorable about that malcontent."

In his brief, Conway claimed his statements were all protected opinions rather than false. His comments surfaced in a blog posting claiming Aleman forced defendants to waive their right to a speedy trial by setting trials just a few weeks after arraignment.

Aleman is one of Broward's most controversial judges -- making headlines since she was sworn in more than six years ago. The 4th District Court of Appeal overturned her in several high-profile cases for overstepping the "wide latitude" afforded judges and sentencing a defendant in excess of the statutory maximum. Last February, the Judicial Qualifications Commission, which regulates judges, filed formal charges against Aleman for threatening to hold or holding attorneys in contempt of court and not removing herself from cases where she had prior problems with attorneys.

The state JQC recommended she receive a public reprimand for engaging in a pattern of arrogant and discourteous conduct. She appealed the ruling to the court, which has not weighed in yet. Both Conway and ACLU attorneys maintained Conway was exposing a potential problem in Aleman's courtroom. If Conway were sanctioned, the ACLU contended his First Amendment rights -- and the rights of the public -- would be trampled.

Both Conway and the ACLU noted a 2001 disciplinary case cited in the Supreme Court's order to show cause. The justices in the old case noted attorneys "play an important role in exposing valid problems within the judicial system." Attorneys should only be prohibited from making false statements that would "erode public confidence" without publicizing "problems that legitimately deserve attention."

Conway and the ACLU said the Bar never challenged Conway's account of what happened in Aleman's courtroom, and his referee never conducted any evidentiary hearings to vet the truthfulness of Conway's claims. They argued his comments can be seen only as opinion because the referee never found that Conway lied about what happened.

The ACLU went a step further saying that even if Conway's statements were false, they should not violate the Bar rules unless Conway knew what he was saying was wrong or reckless. "In short, Judge Aleman's rulings provided the respondent with an objectively reasonable basis in fact to express the opinions which he posted the following day on JAABlog," Wrubel wrote.

The Bar countered that the reason the claims were never vetted was because of Conway's plea agreement. The Bar also claimed his intent was not to expose a wrong but to lash out at Aleman. He "never sought redress by any other means other than posting his blog on the Internet," the Bar wrote. "The respondent never sought judicial review of the judge's continuance policy through an appeal nor did he file any complaint of judicial misconduct with the appropriate agency." Conway said he filed a Judicial Qualifications Commission complaint against Aleman and interviewed with the JQC's special counsel who was prosecuting Aleman.

Conway said he is shocked that the Bar would misrepresent that in a brief, when they could easily check with the JQC. However, the state Constitution maintains that JQC complaints are confidential until probable cause is found against the judge. Citing case law, the Bar said courts have ruled vile attacks and angry outbursts "by their very nature are likely to indicate a reckless disregard for the truth of what is being said and not protected free speech under the First Amendment." The Bar pointed to a 2003 Minnesota case where that state's Supreme Court rejected the argument that a lawyer had a First Amendment right to state a judge won election to the bench "by appealing to racism." The court wrote, "merely cloaking an assertion of fact as an opinion does not give the assertion constitutional protection."

The Bar also cited a 2000 case where the Delaware Supreme Court found that a lawyer's statements claiming a judge "suffered a progressive mental disability" causing "mood swings and injudicious conduct" was not protected because they were made with reckless disregard to the truth. The Bar pointed to Conway's comments that Aleman was "seemingly mentally ill," saying that he did not have the medical background to make such a claim. .