Free Speech

"A Court Cannot Tell [Anyone] That He or She Cannot Be Rude, Insulting, or Boorish"

Words of wisdom from Rhode Island Judge Richard Licht.

|The Volokh Conspiracy |

The case in which this arose is Fuoco v. Polisena, decided Thursday. Eileen Fuoco, a former Johnston, R.I. city councilwoman sued Mayor Joseph Polisena for slander over some statements he made at a city council hearing; the jury awarded her $34,000 in damages, but the judge set the verdict aside, concluding that Fuoco hadn't proved the statements to be false statements of fact, or at least hadn't proved the statements were said with knowledge or recklessness of their falsehood. Here's part of the judge's summary:

The Meeting was more than robust, some might say it was raucous, and some might contend that Mayor Polisena's conduct lacked the civility one would hope to see at a public meeting. However, politics is not played by the Marquis of Queensbury rules. The heart of the American experience is free expression.

Plaintiff's position, and indeed this case in its entirety, evinces a concerning lack of veneration for the First Amendment. A Court cannot tell an elected official, a candidate for office, or a member of the public that he or she cannot be rude, insulting, or boorish. The Courts may not like what someone says or how it is said, but it is the duty of the Courts to protect the right of anyone to express oneself about a public official as long as the statements are not knowingly false or made with a reckless disregard for the truth.

The judge, by the way, knows something of political debate; he had been, in his day, a Rhode Island state senator and Lieutenant Governor. He also sits in the courthouse named after his uncle, Frank Licht, who had been Governor.

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  1. For one thing, I think it’s the *Marquess* of Queens*berry.*

    For another thing, this metaphor should be retired, since the Marquess is most famous for leaving a calling card calling Oscar Wilde a “somdomite” (sic), which may perhaps have been true, but it wasn’t really all that civil.

    Wikipedia says he’s “remembered for his atheism, his outspoken views, his brutish manner, for lending his name to the “Queensberry Rules” that form the basis of modern boxing, and for his role in the downfall of author and playwright Oscar Wilde.”

    Someone should do a law-review article about judges using this metaphor, I bet it goes way back.

    1. Agreed, in fact we should purge all historical figures who failed to live up to today’s enlightened standards. Columbus was a serious a-hole, better get rid of the holiday and rename that city in Ohio. Lincoln didn’t believe that blacks were the equal of whites, looks like we’ve got some city names and currency to change. And maybe the holiday, although it’s not really celebrated any more since it was combined with Washington’s birthday. Speaking of which, with Washington we have a trifecta – currency, the seat of the federal government AND a state name that’s gotta go.Or quadrafecta (is that a word?) if we decide yes on the holiday.

      Or we can go whole hog – I’d bet a dollar that old Mr. Vespucci was mean to someone at some point.

      This is fun.

      1. Could we at least agree that the judge should spell the name correctly, if we’re to maintain this Important Tradition of using the term?

        Or will the opinion be edited in the final version?

        You can’t have it both ways – defending a traditional term and then not spelling the guy’s name right. Spelling someone’s name right is proverbially the minimum.

        1. I’m sure Ibrahim Lunecoln agrees with me.

          1. And we should keep tradition alive by preserving Tim Jeffertson’s mansion at Monte Cassino.

        2. “Marquis” is the French spelling for, and a commonly used form of, “Marquess.”

          1. “Marquis” is the form normally used in Scotland, where the Marquess of Queensbury is a Peer.

            1. “the Marquess of Queensbury is a Peer”

              Really? All over the rosebushes?

      2. Don’t forget about dumping relativity now that Einstein’s racism has been revealed.

        1. And he’s Jewish, which is of course problematic vis-a-vis Israel’s Palestinian genocide.

      3. Hey Hey! Ho! Ho!

        Amerigo has got to go!!!

        Your’re right, this is fun–even more so when you make it rhyme! Does he have any statues we can topple over?

          1. Is not to be messing with history, comrade!

            1. Someone should tell antifa that he was a confederate general. 70-30 they’d buy it.

  2. I consider grammar and spelling to be equally important. So I think that someone complaining of spelling should not use a comma splice.

    1. Comma, comma, comma, comma, comma, chameleon.

  3. Unless of course that person is in court before a judge then it’s just fine.

    1. “Your Honor, it would be impossible for me to underestimate the intelligence of this Court.”

    2. ^^ This guy gets it.

      1. I mean Soronel Haetir.

        1. LAWYER 1: “You are the greatest crook ever!:

          LAWYER 2: “No, *you’re* the greatest crook ever!”

          JUDGE: “Have you forgotten that I am in the room?”

    3. Not necessary to be in court (assuming we lawyers are persons). Courts all the time tll people not to be rude or boorish — in depositions, emails, letters, conversations, filings.

  4. That councilwoman is a piece of work. Employed as a secretary for her husband for 9 months every year, then is laid off and collects unemployment. During this time she lives in her condo in Florida and, according to the mayor, doesn’t show up to meetings. Her big issue she was pressing was the repaving of roads within her district, which the mayor hadn’t acted upon, but she admitted during trial that she only cared about getting her own road paved.

    1. “… but she admitted during trial that she only cared about getting her own road paved.”

      Best. Euphemism. Ever.

      1. Especially when combined with, “That councilwoman is a piece of work.”

  5. This may be a stupid question but with a case so obvious that the judge set aside the jury verdict in its entirety, why did this go to a jury in the first place? Why wasn’t this case thrown out at some earlier stage?

  6. “Being miserable and treating other people like dirt is every New Yorker’s God-given right.” – City of New York v. Ghostbusters

  7. So how are hate speech laws justified?

    1. What “hate speech laws” are you referring to?

  8. “it is the duty of the Courts to protect the right of anyone to express oneself about a public official as long as the statements are not knowingly false or made with a reckless disregard for the truth.”

    If that is true, then contempt of court is misapplied in a large number of cases. Particularly ones I’ve read about where the contempt ruling was applied to conduct outside of the court room — for example, the guy hauled into the courthouse by bailiffs after he made a lawyer joke on the public sidewalk outside.

    Judges, after all, are public officials too.

    1. I guess the judge in the case you mention was an honorary non-public non-official.

    2. Can you tell me more about the lawyer joke case? I hadn’t heard of it. Generally speaking, under modern First Amendment law, contempt of court prosecutions for criticizing judges (or lawyers) are sharply limited by the First Amendment (though it took several Supreme Court cases to establish that).

      (I do agree that insulting statements in court or in court papers are indeed less protected under current law.)

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