From KDD – additional case law and Nov. 8, 2013 at 11 am is an important day!

Dear Readers,

KDD has found some wonderful case law, courtesy of the ACLU.  And in the meantime, as some of you are aware Atty Lanre Amu, and African immigrant to this country, has been prosecuted by the ARDC for speaking out against the troubles and travails over at the Daley center!

Since many of your are probate victims, I am sure you will want to come out to his oral argument and cheer him on this Nov. 8, 2013 at 11 am.  I will be there.  Meet and greet and support him.  His brief will be published shortly (with my comments, of course), but take a look at the case law Ken has found–good going Ken!

from Joanne


that would be the question to ask on cross of ANY sitting judge during a trial against an attorney for blogging about a troubled court system.  I mean, a sitting judge is not supposed to even read a blog about her or his case, they’re supposed to avoid news and blogs and commentary as much as they are able, and certainly not engage in discussing those cases.  As SCOTUS has directed when someone has read something he or she did not like, “avert thy eyes.”

These are all good questions and Mr. Amu, just let me know when we can meet tomorrow.



—–Original Message—–
From: kenneth ditkowsky
Sent: Oct 31, 2013 1:27 PM
To: JoAnne M Denison , “”
Subject: Re: I love your brief to the Review Board

I lifted the following argument out of brief filed by the ACLU for another attorney
The issue in this case is whether an attorney may be disciplined for true statements critical of a court simply because the court dislikes the tone of the statements.* Robert Snyder was suspended from practice solely because the Court of Appeals found his letter to the District Court to be “disrespectful.” In re Snyder, 734 F.2d at 337, 343 (8th Cir. 1984). The Court of Appeals agreed with Snyder that there are major problems with the implementation of the Criminal Justice Act. 734 F.2d at 337-341. Nonetheless, the court suspended him because it did not like the tone and words he used in addressing the court.
*8 Speech by attorneys is an essential way of exposing problems in the system and pressuring for reform. By virtue of their knowledge and dealings with the judiciary, lawyers have a unique ability to help improve the administration of justice. At times, attorneys must vigorously advocate their clients’ positions and criticize the way in which the courts are treating their clients’ cases. See In re Sawyer, 360 U.S. 622, 631-32 (1959). At times, attorneys must speak out about injustices they perceive in the administration of the courts. Such speech serves an invaluable public purpose and is protected by the very core of the First Amendment. See New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
Robert Snyder’s letter to the secretary of the district court was exactly the type of speech which should be encouraged. He was writing to a branch of the United States *9 government for redress of his grievance: his failure to receive prompt payment for services provided to an indigent criminal defendant. Furthermore, his letter complained about the administration of an important government program and the failure of the government to provide adequate representation of indigents. Attorneys perform an essential public function when they complain in this manner. Snyder’s letter prompted the United States Court of Appeals for the Eighth Circuit to propose a reconsideration of the manner in which the CJA is implemented in North Dakota. In re Snyder, 734 F.2d at 337-341. Snyder thus was performing the highest mission of the bar in seeking to improve the system.
Speech about courts does not lose its protection just because it is harsh or even disrespectful. In re Sawyer, 360 U.S. 622, 631-32 (1959); *10 Craig v. Harney, 331 U.S. 367, 372 (1947). Courts, like all parts of government, may be criticized, even in intemperate tones. Landmark Communications, Inc. v. Virginia, 436 U.S. 829, 839 (1978).
It is firmly established that speech about courts may be punished only if it poses a clear and present danger to the administration of justice. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845-46 (1978); Wood v. Georgia, 370 U.S. 375, 388 (1962); Craig v. Harney, 331 U.S. 367, 372 (1947); Pennekamp v. Florida, 328 U.S. 331, 348 (1946); Bridges v. California, 314 U.S. 252, 262 (1941). Speech never poses a clear and present danger just because it is critical of the courts. In order to discipline an attorney for his or her speech, there must be proof that the attorney’s statements actually interfered with a pending judicial proceeding. No such interference is even hinted at in this case.
In the Matter of: Attorney Robert J. SNYDER., 1985 WL 670169 (U.S.), 7-10
Ken Ditkowsky
On Thursday, October 31, 2013 1:18 PM, kenneth ditkowsky <> wrote:
These e-mails suggest that you have oral argument on early November 2013.
Let me respectfully suggest that you read the last paragraph of the Sawyer case 79 S. Ct 153 and you keep in mind he following quote:
The only substantial question raised pertains to the editorial. It called the judge’s refusal to hear both sides ‘high handed,’ a ‘travesty on justice,’ and the reason that public opinion was ‘outraged.’ It said that his ruling properly ‘brought down the wrath of public opinion upon his head’ since a service man ‘seems to be getting a raw deal.’ The fact that there was no appeal from his decision to a ‘judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make **1255 his decisions accordingly’ was a ‘tragedy.’ It deplored the fact that the judge was a ‘layman’ and not a ‘competent attorney.’ It concluded that the ‘first rule of justice’ was to give both *376 sides an opportunity to be heard and when that rule was ‘repudiated,’ there was ‘no way of knowing whether justice was done.’
6 This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or to belittle him * * *.’ See Craig v. Hecht, 263 U.S. 255, 281, 44 S.Ct. 103, 108, 68 L.Ed. 293, Mr. Justice Holmes dissenting. The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.
Craig v. Harney, 331 U.S. 367, 375-76, 67 S. Ct. 1249, 1254-55, 91 L. Ed. 1546 (1947)
Ken Ditkowsky

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