Monday, December 15, 2014

Advice to Avoid Criticizing Judges on Blogs Defeats the Premise of an Elected Judiciary

Charles W. Kramer has this letter to the editor among those in the Inbox feature in the latest issue of Wisconsin Lawyer.
"Our ethics rule follows the standard for libel set forth in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), that is, in order to be actionable, a libel of a public official must be “made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Obviously, if the ethics rule forbade more conduct than actionable civil libel, there would be grave constitutional issues. Equally obviously, there is a great deal of room between silence and actionable libel for legitimate criticism of those who hold a public trust."
Dean R. Dietrich, Vice Chair, Professional Ethics Committee, and author of the ethics column "Keeping Blog Posts Ethically Clean" in the previous issue of Wisconsin Lawyer replies,
"My advice, however, is based on past experiences and contains a strong recommendation that a blogger should not criticize a judge in a blog post. There is a great risk in doing that from an ethics-prosecution perspective."