The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Generally speaking, the law can't punish false statements about the government—even knowing lies—on the grounds that they damage the government's reputation. In the words of New York Times v. Sullivan (1964),
For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."
Likewise, Rosenblatt v. Baer (1966) made clear that "in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations." A claim "based on libel of government," rather than of a particular government official, "is constitutionally insufficient." And this offers more First Amendment protection than the more famous New York Times v. Sullivan rule that an alleged libel of a public official can't lead to civil or criminal liability without a showing of knowing or reckless falsehood. An alleged libel of the government can't lead to such liability, period.
But courts have long taken a different view with regard to attorney disciplinary proceedings; there, courts generally conclude that lawyers' knowingly or recklessly false statements, especially with regard to the judiciary, can lead to discipline, even if they are said in a political campaign (usually for judicial office). Indeed, some courts even allow such liability based on a showing of negligence, but I set this aside here. Here's how this analysis played out in Wednesday's Maryland Supreme Court decision in Attorney Grievance Comm'n v. Pierre, where a lawyer who was running for judicial office was accused, among other things, of making three false statements in her campaign (I also blogged about a related facet of the case earlier this morning):
MARPC [Maryland Attorneys' Rules of Professional Conduct] 8.2(a) provides: "An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." As we have noted, "the purpose of [MARPC] 8.2(a) is not to protect judges, judicial officers, or public legal officials from unkind or undeserved criticisms. Rather, [MARPC] 8.2(a) protects the integrity of the judicial system, and the public's confidence therein[.]"
To ensure that enforcement of MARPC 8.2(a) does not infringe on core speech rights, a high standard is embedded within that rule, which encompasses only speech that is false and made with knowledge of its falsity or with reckless disregard as to its truth or falsity…. "[I]n the First Amendment context, 'reckless disregard for truth or falsity' evokes the subjective test for civil liability for defamation of a public figure set forth in New York Times Co. v. Sullivan (1964)." Under that test, "reckless disregard" demands more than just a conclusion that a reasonable person would have refrained from making the comment or performed additional investigation. That standard demands that the plaintiff produce "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the defendant's] publication." Nonetheless, … "Every Maryland attorney takes an oath to act 'fairly and honorably.' Those who seek judicial office must resist the temptation to advance at the risk of violating that pledge." …
The court upheld the conclusion that one of the lawyer's statements was knowingly or recklessly false, and impugned the integrity of the judiciary:
[W]ith respect to the tweet that "some sitting judges who are only English speakers send people to jail because they could not speak English," Ms. Pierre conceded before the hearing judge that the statement is false, and the record establishes that it is. Ms. Pierre contends, however, that her campaign's tweet was not knowingly and intentionally misleading, or made with reckless disregard as to its truth or falsity, because it was based on her mis-recollection of a proceeding in which a judge had ordered her client to take English classes as part of a CINA reunification plan. She also suggests that her tweet was protected as a statement of opinion, rather than fact.
We find no clear error in the hearing judge's findings. First, even if Ms. Pierre's recollection about the single incident were accurate, it would have provided no support for her campaign's tweet. Second, other than that mistaken recollection, Ms. Pierre offered no basis at all for the tweet. Third, a statement that judges send people to jail because they do not speak English is a statement of fact, subject to demonstrable verification, not a statement of opinion. Whether viewed through an objective or subjective lens, the record supports the hearing judge's finding that Ms. Pierre, at a minimum, acted with reckless disregard for the truth or falsity of her statement at the time she made it. We therefore overrule Ms. Pierre's exceptions to the hearing judge's findings of fact concerning her campaign's tweet about judges sending people to jail for not speaking English….
Ms. Pierre argues that the statement did not impugn the integrity or qualifications of the sitting judges because she did not name anyone specifically. We disagree. Ms. Pierre's statement was made in the course of an election campaign in which she was running against a slate of four sitting judges on a bench of 23 active judges. The statement—made using the present tense, that "some" among that relatively small group of judges illegally send people to jail because they cannot speak English—impugned the integrity of the bench.
Note that in some ordinary libel cases, a false statement about a small group might be seen as defaming all members of the group; but here the court didn't claim that saying that "some" of 23 people do something unprofessional would be enough for liability in a normal libel case, and I doubt that it would. Rather, the concern here is about "impugn[ing] the integrity of the bench," which is to say damaging the reputation of one branch of the government; as I noted above, such statements are protected against criminal and civil liability, but not against bar discipline.
The court also upheld the conclusion that another statement was knowingly or recklessly false, but held it didn't impugn the integrity of the judiciary and thus didn't violate the rule:
[W]ith respect to the tweet that "[m]ost" of the sitting judges "have worked at the same law firm, go to the same church, and are related by marriage," Ms. Pierre excepts to all of the hearing judge's findings of fact. We overrule those exceptions. Ms. Pierre first contends that the statement is one of opinion, which she sincerely held, rather than one of fact. In making that argument, Ms. Pierre recasts the statement as a general allegation that the sitting judges are not diverse and are all part of "an in-group." Notably, however, the same tweet includes two other sentences that state exactly that—that the sitting judges "are not really diverse" and "are an in-group." Those sentences were not the basis for either the Commission's charges or the hearing judge's findings.
A statement that "[m]ost" sitting judges have worked at the same law firm is a statement of fact subject to objective verification. The same is true of statements that "[m]ost" sitting judges go to the same church and are related by marriage. At trial, Mr. McAuliffe testified from personal knowledge that all three contentions were false, and Ms. Pierre did not provide evidence that any of them were true.
Ms. Pierre also argues that the hearing judge erred in finding that she knew the statements were false or acted with reckless disregard for their truth or falsity at the time they were made. We disagree. At the hearing, Ms. Pierre identified the sole bases for her purported belief that her statement was true at the time she made it as: (1) having overheard an anonymous source state that two active judges and one retired judge were related by marriage; and (2) having been told by a member of the bar that four (out of 23) active judges attend the same church. Ms. Pierre also contends that she identified a sufficient number of relationships among the active judges to provide general support for her belief that her statement was true. However, the comments on which she relies, even if true, would not come close to supporting her statement, and the general support she purports to have identified in her Exhibit P is sufficiently deficient, see discussion above at note 14, that it lends significantly more weight to the Commission than to her.
We therefore overrule Ms. Pierre's exceptions to the hearing judge's factual findings that Ms. Pierre's tweet about most sitting judges working at the same law firm, attending the same church, and being related (1) were false, and (2) were made knowing they were false or with reckless disregard for their truth or falsity….
[But k]eeping in mind that we are addressing core political speech entitled to the highest level of First Amendment protection, and that the purpose of our inquiry is not to protect judges "from unkind or undeserved criticisms," but to "protect[ ] the integrity of the judicial system, and the public's confidence therein," we do not agree that Ms. Pierre's statement impugned the qualifications or the integrity of the sitting judges. The message expressed in the tweet is not that any sitting judge is unqualified or lacks integrity. Instead, the message is that they are not sufficiently diverse from each other.
The facts Ms. Pierre asserts to prove that point are false, but that does not alter the character of the point. And although the hearing judge found that the tweet contains an implicit criticism of the basis on which the judges were appointed, such an implication is insufficient to provide clear and convincing evidence given the level of protection afforded to campaign speech under the First Amendment….
But as to a third statement, the court found that there wasn't enough evidence of knowing or reckless falsehood:
Finally, Ms. Pierre also excepts to all of the hearing judge's findings concerning her several campaign statements about an answer Judge Berry gave at a candidate forum attended by Ms. Pierre. At that forum, when asked about a study identifying a high rate of incarceration of Black men in Maryland, Judge Berry provided an answer that discussed various alternatives to incarceration and concluded: "I understand that it is an issue, but it's not as much of an issue as being portrayed by [the other two candidates.]" The first statement with which the Commission takes issue, which is representative of the others, is an October 20, 2020 text message stating:
Hi [voter], this election matters. When a sitting judge says "it's not much of an issue" that Black males are jailed at a higher rate in MD it's clear we need Marylin Pierre, who understands restorative justice. Can we count on your support?
Mr. McAuliffe objected to Ms. Pierre's message on the grounds that it took Judge Berry's statement out of context and because it omitted the word "as" before "much," which he contended changed its meaning. Ms. Pierre took that statement down and posted a different one that included the "as," although in only one of two places where the quote appeared. Mr. McAuliffe again objected and demanded that the post be removed, stating: "Your adding the word 'as' to the portion of the quote … does not correct the intentionally misleading nature of your post but only serves to prove that your actions are deliberate misrepresentations." The hearing judge found that Ms. Pierre's campaign used other versions of the quote three more times, once including the "as," once not, and a third time shortening the quote to only "much of an issue."
At the hearing, Ms. Pierre testified that she had believed her initial quote was accurate based on what she heard Judge Berry say. She also testified that the omission of "as" in the subsequent statements was inadvertent. However, the hearing judge found that even if that were true, Ms. Pierre
had a responsibility to completely and accurately correct her campaign literature once notified of her error on October 12, 2020. Instead, she republished the incomplete, misleading quote on October 13th, 17th, 23rd and 31st. The court finds that she knowingly and intentionally misrepresented the substance of Judge Berry's quote and repeatedly attributed the incomplete, misleading quote to Judge Berry.
The hearing judge thus concluded that, more than the omission of the word "as"—which was not missing from all the communications identified—Ms. Pierre violated the MARPC by failing to provide "complete[ ] and accurate[ ]" context for the statement.
Ms. Pierre excepts to the hearing judge's findings concerning these communications on the grounds, among other things, that her omission of the word "as" did not change the context of the quote because her point was that the sitting judges were not taking seriously the high rate of incarceration of Black males in Maryland; that Ms. Pierre, by contrast, was a candidate "who understands restorative justice"; and that voters should therefore choose her.
In this case, the protection afforded by the First Amendment for this core political speech is not overcome. The comments at issue attempted to draw a distinction between Ms. Pierre and her opponents on an issue of significant public importance. Ms. Pierre's statements conveyed a message that she believed one of her opponents was minimizing the importance of that issue. That Ms. Pierre did not endeavor to provide full context for a statement she attributed to her opponent and did not get the quote completely accurate is neither commendable nor, in the context of an election, exceptional. The issue, however, is whether it is sanctionable as misconduct under the MARPC. As noted, "imprecision in language" is an inevitable feature of campaign speech.
The question before us is not whether the words within the quotation marks were a full and accurate transcript of that portion of Judge Berry's remarks. In some of the quotes they were and in some they were not. Nor is the question whether Ms. Pierre provided sufficient context around the quoted language to convey Judge Berry's point as Judge Berry originally made it. Ms. Pierre did not. The relevant question, instead, is whether, understanding the circumstances and the nature of campaign speech and the First Amendment interests that protect it, there is clear and convincing evidence that the campaign statements at issue were knowingly and intentionally false or misleading. We do not find evidence in the record to meet that high standard. We therefore sustain Ms. Pierre's exceptions to the hearing judge's findings of fact concerning the statement attributed to Judge Berry….
The court ultimately reprimanded Pierre based in part on the first statement, though also based on some other unrelated misconduct that she was accused of. (The court threw out most of the accusations against her, and rejected Bar Counsel's recommendation that she be disbarred.)