In re Kendall–3rd circuit–Clear and present danger Speech explained

Dear Readers;

One of the issues my trial stated out with was Atty Melissa Smart of the ARDC going on and on about how my blog is like “yelling fire in a crowded theater” which, I believe, is fairly akin to the Nelson 7th circuit case wherein 2 Aldermen in Chicago (Bobby Rush and Dorothy Tillman) entered the Art Institute of Chicago — one brandishing a gun– and claimed that a painting depicting former Mayor Harold Washington in ladies undies and a garter belt “would incite riots” in the street of Chicago, making that speech a “clear and present danger.”

So when and why is speech a “clear and present danger”.  Is there any belief amongst reasonable people out there that this blog in any means or manner could ever incite any sort of violent action, other than perhaps a paper cut? (pixels generally don’t damage anyone or anything, except maybe a backache from carrying a too heavy laptop so you would have to print it out to get even a paper cut).

In re Kendall, a 3rd circuit case, explains the standard Atty Smart was trying to invoke.  The only problem is, I don’t know of a single disciplinary case at any level–where a lawyer was able to incite a riot or any sort of violence other than the Civil War of 1860 and that involved slavery of a huge chunk of the United States.  Even the suffrage and women’s movement was not particularly successful in creating any riots or wars.  So what then is Atty Smart even talking about?

The concept, while largely unused (and certainly not for a blog or an atty not involved in any case but only commenting upon it) is explained in this case In re Kendall

In the realm of speech about ongoing judicial
proceedings, the government’s authority as sovereign
provides only limited power to criminally punish speech by
those outside the judicial system. As the Supreme Court
made clear in a trio of cases involving members of the
press held in criminal contempt for their news stories, speech
about ongoing judicial proceedings is criminally punishable
only if it poses a clear and present danger of obstructing or
prejudicing the ongoing proceedings. Craig, 331 U.S. at 372,
67 S.Ct. 1249; Pennekamp v. Florida, 328 U.S. 331, 348, 66
S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314
U.S. 252, 260–63, 62 S.Ct. 190, 86 L.Ed. 192 (1941); see
*826 also Standing Comm. on Discipline of U.S. Dist. Court
for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1442 (9th
Cir.1995). The government has greater authority to discipline
speech about an ongoing judicial proceeding, though, when

the speaker is an attorney involved in that proceeding. See
Gentile, 501 U.S. at 1075, 111 S.Ct. 2720. Because the
attorney is likely to be viewed as “especially authoritative”
and his statements are more “likely to influence the actual
outcome of the trial,” the government has an overriding
interest in limiting the attorney’s prejudicial comments to
preserve the litigants’ constitutional rights to an impartial jury.
Id. at 1074–75, 111 S.Ct. 2720. Consequently, the attorney’s
speech is subject to discipline at a lower threshold: when it is
substantially likely to prejudice the proceedings. Id. at 1075,
111 S.Ct. 2720.

The only thing this blog has done is call for an investigation.  It has pointed out a court that does X when the law is clearly Y.  How that prejudices a proceeding is unknown to anyone at this time.

The ARDC wants to use a different standard, and that is any speech THEY deign to not like must be disciplined.  Two little problems with that are the free speech provisions of both the US and Illinois constitutions even they are sworn to uphold — and this becomes yet one more example of a government body doing X when the laws are clearly Y.

But that is a “blame the media” solution to their problem of reporting on what is going on in court–courtrooms where the attorneys reporting and commenting on the case have no appearance on file and are acting as bystanders to the proceeding.  Further, there is no prejudice to any of these cases:  Gore, Wyman, Sykes, Spera, etc. because there is no jury involved.  Presumably judges can spot bias and interpret the laws on their own, thank you very much.  They must avoid reading legal blogs with commentary about their own cases.  Judge Stuart said she did not read this blog.  Now she is retired, she can read it all she wants.

So what does this court have to say about a judge’s opinion that was denoted as

” The opinion characterized the Virgin Islands
Supreme Court’s reasoning as erroneous, “improper,” having
“no rational basis,” lacking “merit,” and “making no sense.”
In re Kendall, S.Ct. Misc. No. 2009–0025, 2011 WL
4852282, at *4 & n. 6 (V.I. Oct. 12, 2011). Indeed, the
opinion went so far as to say that the writ of mandamus “was
apparently sought and issued to facilitate [Bethel’s] blatant
misconduct and perpetrate a fraud on the [Superior] Court.”
Id. at *4 n. 6. Its issuance, Kendall wrote scathingly, was
therefore “contrary to law and all notions of justice.” Id.

but the ruling of the 3rd court was as follows:

we hold that the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings. Kendall’s opinion did not pose such a threat. We also agree with Kendall that there is insufficient evidence that his recusal was pretextual. Consequently, we will reverse the Virgin Islands Supreme Court’s judgment and vacate all of Kendall’s contempt convictions.

It is hard to see anything happening other than that.  Atty Kendall worked as a prosecutor and found a number of problems with the conviction of a certain criminal defendant.  At some point in time later, the case came back to him now as a sitting judge.  He then  wrote a scathing opinion on the plea bargain involved.  A new set of prosecutors and judges charged him with criminal contempt at the state appellate level.  The case eventually ended  up in the 3rd circuit where those Justices upheld the first Amendment and reversed Judge Kendall’s criminal contempt conviction.

Nonetheless, the standard, even for attorneys commenting on a case is good law.  The First Amendment requires that comments made by judge or attorney must present a “clear and present” danger.  While the ARDC does not like that Gloria Sykes, John Wyman Ken Ditkowsky and many, many others (Lisa Belanger, Rosanna Miller, Janet Phelan) have commented on cases and published on this blog where the law is X and the court did Y, none of this in a million years, even with stretching the truth like a weather balloon, could produce the resultant effect of this blog ever being a “clear and present danger” to anything or anyone.  It pretty much repeats what the litigants have said, and why they are extremely unhappy and it also explains why many of them have PTLD (post traumatic litigation disorder) and behave as probate victims do (fearful of attorneys, judges, court tied in or appointed personnel, etc.)

In re Kendall is very good case law.  The only question is, why the ARDC is doing X to Ken and I and Mr. Lanre Amu when First Amendment law is Y.


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