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Two of the nations leading bar associations recently issued warnings about attorneys who mislead the public, make baseless charges, or blatantly lie about highly charged matters to be resolved in court. Both associations were responding to false claims made by attorneys for former President Donald Trump about the search of his Mar-a-Lago resident, challenging its lawfulness and the integrity of the federal government.

Some of the statements have been shown to be verifiably false, while the rest lacked a scintilla of evidence. Yet confronted with contrary facts, none of those attorneys provided support for their statements or corrected the record. Words are consequential, the associations underscoredthey can invoke violence directed at judges, FBI agents, and everyone involved in law enforcement.

Such lies by lawyers are nothing new. They continue a rampant pattern of lies offered in court and in the public sphere by election deniers.

The New York City Bar Associations report starkly reiterated that attorneys should not make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect. Nor should attorneys, especially in a highly charged environment of public interest, make comments about the judicial processes or judicial officers that they know to be demonstrably misleading or palpably false.

A week earlier, the New York County Lawyers Association called out the danger of threats and antisemitic slurs aimed at the federal magistrate judge who issued the Mar-a-Lago warrant, as well as the identification of two FBI agents involved in the search, and the subsequent armed attack on the FBIs Cincinnati office.

Such warnings implicitly raise a crucial First Amendment question: Do lawyers lies have the same First Amendment protections as lies by others?

As I explained in A Right to Lie? Presidents, Other Liars, and the First Amendment, the Speech Clause impedes the states power to punish most lies. Long-standing exceptions to that principle include regulation of defamation, exemplified in current lawsuits brought by Dominion Voting Systems and Smartmatic against Fox News and others.

However, First Amendment protection for knowing falsehoods does not amount to an affirmative right to lie. The state violates the Constitution when it punishes speech simply because a court believes it to be false. The US Supreme Court has indicated that the government may only punish verifiable false statements of fact that harm others or unjustly benefit the liar.

The First Amendment may create an insuperable obstacle to state regulation of lies attorneys tell about pending proceedings, but it does not apply to private discipline by professional organizations. Arguably, as the New York City Bar suggested, attorneys waive some of their First Amendment rights to lie about public events and submit to the jurisdiction of the bar association as a condition of their license to practice law.

It is important to distinguish several settings in which lawyers might knowingly misrepresent the facts.

First, lawyers who represent clients in the dispute must be truthful in all statements to a court as well as to third parties, including the public. The ABA Model Rules of Professional Conduct prohibits attorneys from making false statements of fact or law before a legal tribunal as well as to the public.

A federal judge in Michigan explained in sanctioning Trump attorney Sidney Powell for her lies about the 2020 election and referring her to the Texas bar for professional discipline that conjecture and speculation are neither permitted nor welcomed in a court of law.

Referencing a 1991 Supreme Court opinion, she added, it is well-established that an attorneys freedom of speech is circumscribed upon entering the courtroom. In court, attorneys do not retain personal First Amendment rights because they are just doing their jobs. The legal definition of lies does not include conjecture, opinion, and the like, but courts require more of attorneys than not technically lyingassertions must be backed by evidence.

Of course the Michigan court did not mean to suggest that lawyers representing clients can lie outside of judicial proceedings. Powell carefully limited her fabrications to extrajudicial settings. She was cautious in court filings, and even asked the court to disregard her public statements as too incredible to be taken seriously.

Indeed, a New York appellate court upheld the suspension of Rudy Giulianis law license in part because of his false statements of material fact or law to third persons, that is, the general public. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large while trying to overturn the 2020 presidential election results.

A third and more nuanced situation involves lawyers who are not involved in the controversy. The Model Rules of Professional Conduct generally apply to attorneys in the course of representing a client, and the Supreme Courts conclusion that lawyers doing their jobs in court lack First Amendment rights does not seem to apply to attorneys without a client who speak about matters of public concern.

But the New York City Bar exhorted all attorneys to refrain from falsehoods. The specific setting and the lawyers choice of hat may matter. If speaking as myself, a concerned citizen, or as a legal opinion commentator, the scope for prevarication may be wider than if the lawyer speaks as the chair of the judiciary committee.

On what ground can we demand lawyers stay within the boundaries of professional propriety? This brings us to the quintessential features of the legal profession.

Upon admission to practice each lawyer is considered a public citizen having special responsibility for the quality of justice. As the Model Rules of Professional Conduct explain, Lawyers play a vital role in the preservation of society. That is why we hold ourselves to high aspirational standards, even when we may lack effective means of enforcement.

The New York bar associations were right to rebuke flagrant falsehoods that target the very rule of law. We should all take those warnings seriously.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with particular emphasis on the First Amendment, and family law. She is the author of A Right to Lie? Presidents, Other Liars, and the First Amendment.

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Does the First Amendment Protect Attorneys Who Lie? - Bloomberg Law

Alabama Attorney General Steve Marshall led 21 attorneys general in filing abriefopposing the Hillsborough County Florida transit authoritys policy denying the First Amendment rights of a religious group to advertise on public transportation. The case of Young Israel of Tampa, Inc. v. the Hillsborough Area Regional Transit Authority is currently in a federal appeals court.

Whenever a violation of religious speech occurs, it is of serious concern to all who are dedicated to the preservation of the First Amendment, stated Marshall. When a government-run transit authority allows advertising on its public buses but specifically bans any advertising the government deems too religious, the government clearly violates the First Amendment. We rightfully support the plaintiff, Young Israel of Tampa, Inc., in their challenge of the unconstitutional practice of the Hillsborough Area Regional Transit Authority (HART) prohibiting religious advertising on its buses.

Marshall and the 20 other attorneys general claim in their brief that HARTs policy of banning religious speech violates the First Amendment of the U.S. Constitution and previous Supreme Court precedents.

First, HART lumps in religious affiliation advertising with other forms of advertising it forbids: ads for tobacco, alcohol, or related products and ads containing profane language, obscene materials, images of nudity, or depiction[s]of graphic violence, among others, Marshall et. al. wrote in their brief. But one of these things is not like the others. By treating them alike, HART sends the perverse message that religious speech is too controversial, too taboo, and too dangerous for public discussiona notion that flies in the face of our nations history and tradition celebrating religious discourse and the First Amendments dual guarantee of the freedoms of speech and religious exercise.

The conservative AGs brief continued, Second, HARTs policy defies a trilogy of Supreme Court cases holding that blanket bans on religious messaging is unconstitutional viewpoint discrimination. That remains true even if the advertising space on HARTs buses is considered a nonpublic forum as HART contends. No matter the forum, religious viewpoint discrimination is never permitted.

Third, even if HARTs policy were not viewpoint discriminatory, it fails as an unreasonable content-based restriction, the brief added. HART presented no evidence that allowing religious advertisements will impact its goals of maximizing revenue or operating a safe transit system. And there is no reasonable way it can conduct the line drawing necessary to implement its policy without running afoul of the Constitutiona fact this case demonstrates.

Marshall was joined by the attorneys general from Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia in their brief that was filed on September 14, 2022, in the U.S. Court of Appeals for the 11th Judicial Circuit.

Young Israel of Tampa is an Orthodox Jewish synagogue that submitted an ad to the Hillsborough Area Regional Transit Authority (HART) seeking to advertise its annual celebration of Chanukah. HART rejected the ad because it was religiousand it has a policy banning all ads that promote alcohol, tobacco, illegal drugs, obscenity, nudity, pornography, politics, and religion. After Young Israel appealed to HARTs CEO, HART said it would run the ad only if it censored all references to a central feature of the Jewish celebration of Chanukah: the menorah. Young Israel refused the demand that it strips its religious symbol from the ad, so HART refused to run it.

TheBecket Fundis representing Young Israel in its lawsuit against HART.

Becket argued that HARTs Advertising Policy is not only religiously offensive but also violates the First Amendment. On February 5, 2021, Young Israel of Tampa filed a lawsuit against HART in the United States District Court for the Middle District of Florida. On January 26, 2022, the federal district court granted summary judgment to Young Israel. The court found that HARTs ban on religious advertisements was both discriminatory and standardless. The court also ordered that HARTs religious-ad ban should be permanently prevented from being enforced.

HART has appealed that judgment to the Eleventh Circuit Court of Appeals.

To connect with the author of this story, or to comment, emailbrandonmreporter@gmail.com.

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Steve Marshall leads opposition to transit authority denying religious group's First Amendment rights - Alabama Today

OPINION:

The Internet and its social media channels have provided the most significant advancements for free speech in hundreds of years, probably since Johannes Gutenberg invented the printing press. But as with any burgeoning freedom, there are forces trying to place limits on it. Some acts of censorship are wrong but not extraordinarily alarming, while others are decidedly disturbing and point to an insidious trend where the federal government is involved.

Queen Elizabeth II died a week ago, setting off a torrent of posts online, many full of praise and admiration for the 70-year British monarch, but also many loaded with venom and hatred. As the political left does, they held the Queen responsible for any and all sins of the British Empire over the centuries.

One post that got the attention of the censors at Twitter came from Uju Anya, a Carnegie Mellon University professor who has expressed outrage over the United Kingdoms colonial history, including a war in Nigeria that claimed the lives of members of her family.

I heard the chief monarch of a thieving raping genocidal empire is finally dying, Ms. Anya tweeted. May her pain be excruciating.

Twitter locked her account and deleted the tweet, reportedly because it violated their policy against abusive behavior.

In my mind, the tweet was callous, offensive, and distasteful. It should also never have been deleted.

As objectionable as Ms. Anyas language may be, she should have the right to express it.

Now, as often happens when social media censorship is at issue, someone will point out that Twitter is a private company and can set whatever rules it wants for conduct on its platform. And thats entirely true.

But what about when the federal government is the instigator of the censorship?

Ive written about this before, but the private company argument falls apart when the Biden White House is calling the shots on which social media posts get pulled down and which users are sanctioned.

A federal lawsuit filed in May 2022 by Missouri and Louisiana against President Joe Biden and other administration officials lays out how the White House is colluding with social media giants to target specific users for censoring or banishment. A batch of damning and chilling documents exposed by the lawsuit paint a very clear picture of a federal government demanding and getting a clampdown on free speech.

In 2021, after Mr. Biden accused Facebook of killing people because it didnt do enough to suppress what he considered misinformation about COVID-19, a senior executive at the company sent an email to U.S. Surgeon General Vivek Murthy.

I know our teams met today to better understand the scope of what the White House expects from us on misinformation going forward, the executive wrote.

As Reason Magazine has correctly determined, this is true censorship by proxy, as Facebook is expressly acceding to the governments demand. Mr. Biden is stifling free speech using the social media company as the muzzle.

But Facebook was not alone. Instagram, Twitter, and YouTube are named as having communicated with dozens of White House and government officials in what amounts to a vast Censorship Enterprise across a multitude of federal agencies, according to the plaintiffs.

As emails show, the social media platforms positively groveled before the Biden administration, taking their cues and breathlessly reporting back that they had obeyed their orders thoroughly.

As promised, Im sending our latest report, wrote the same Facebook official to the Department of Health and Human Services, before giving an extremely detailed listing of the censorship actions they had taken. I also want to highlight a few policy updates we announced yesterday regarding repeat misinformation.

The Facebook email to the government concluded, Were eager to find additional ways to partner with you.

In April 2021, Twitter scheduled a briefing with the White House to go over their accomplishments in censoring tweets, a discussion that would include ways the White House (and our COVID-19 experts) can partner in product work, according to an internal administration email from Deputy Assistant to the President Rob Flaherty.

Instagram gleefully responded to a White House request to delete an Anthony Fauci parody, emailing back, Yep, on it!

And emails revealed that Twitter officials discussed the White Houses insistence on the banning of a user they deemed problematic, a request that was ultimately granted.

In these symbiotic relationships, where does Silicon Valley end and the government of the United States begin?

If Mr. Biden were taking these actions on his own to squelch speech, it would be brazenly and obviously unconstitutional. Farming out the dirty work to a private firm doesnt make it any better.

And thats a whole lot worse than just a few mean words about the Queen.

Tim Murtaugh is a Washington Times columnist and the founder and principal of Line Drive Public Affairs, a communication consulting firm.

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July 11 through Aug. 23, the North Carolina Utilities Commission (NCUC) conducted several public comment hearings regarding the states plan to reduce carbon emissions. At these meetings, members of the public could (or should have been able to) freely speak out and address the commission on their implementation of the carbon plan, which the General Assembly mandated they do in H. B. 951.

However, members of the public who spoke at these public comment hearings were faced with being sworn in like in a courtroom and were subjected to cross-examination by NCUC attorneys, even if they did not have legal representation.

What average citizen shows up with a lawyer to what should have been, effectively, a town hall meeting? This does not seem like a typical public comment hearing we should appreciate as citizens of the United States in North Carolina where we should have the right to reasonably petition the government without infringement.

The NCUC does, in its ordinary proceedings, operate much like a court. Their website states, Commissioners have a job similar to that of a judge. They are required to make decisions based on the law and upon the facts of a case. While this may be a suitable procedure for their usual meetings, subjecting citizens to cross-examination by a government lawyer is not an appropriate method to conduct public comment hearings.

Imagine for a minute that during the redistricting public comment hearings, the Republican majority General Assembly forced every member of the public to swear an oath and be subjected to questioning by legislative attorneys.

People would be enraged, rightfully so, at such an infringement of their right to petition the government. Likewise, people should be equally concerned about the restrictions on free speech which occurred to those who wished to speak out about the NCUCs proceedings and perhaps to those who showed up to speak but decided not to when they saw the conditions.

Of course, the current jurisprudence on free speech demonstrates that it can and should be limited sometimes. You cannot shout fire in a movie theatre that is not actually on fire, for example, or incite imminent violence against another person. Restrictions on speech are constitutional in some cases.

However, when we, the citizenry, are encouraged to offer public comments to an entity of government, we should be allowed to do so freely and reasonably articulate our concerns without significant restrictions. Committee hearings at the General Assembly, where public comments are heard, are an excellent example of an open and fair process. It is left to the discretion of the committee chairman on who speaks and for how long, which is a reasonable example of ordered liberty, but no one is sworn in, and no person from the public is subjected to deposition by government lawyers.

Currently, the NCUC is holding expert witness testimonies at their Dobbs Building location in Raleigh. Here is the appropriate time (which they are doing, of course) to have sworn testimony from expert witnesses and those who are officially intervening in the carbon plan docket, where cross-examination from attorneys can take place. This is distinct and categorically different from public comments.

Suppose an agency of the state solicits public comments. In that case, the public should not be forced to overcome excessive burdens further imposed on them by the state, which negatively impacts their ability to petition the government. The General Assembly should consider and reevaluate the procedures of the NCUC moving forward to ensure the fairness and transparency of public comments.

Andr Bliveau is the Strategic Projects and Government Affairs Manager at the John Locke Foundation. He is an M.A. in Government Candidate at The Johns Hopkins University and previously served as a policy advisor in the North Carolina Senate.

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OPINION: Utilities Commission public comment hearings produced First Amendment concerns - The Richmond Observer

Last year, I wrote about a case in which media outlets were forbidden from identifying a recently released drug cartel ex-boss as plaintiff in a privacy lawsuit. There is now an appeal in the case, but the Ninth Circuit (acting through its Appellate Commissioner) has provisionally sealed the appellant's opening brief until the merits panel can decide a motion to seal, which will likely be many months from now.

I'm therefore planning to file this motion to intervene and reconsider, on my own behalf (it's due tomorrow, though I'd like to file it late tonight or early tomorrow morning); would love to hear people's comments on it before I do file it. Here's the substantive part:

Motion to Intervene and Reconsider Order of Sept. 1, 2022

Eugene Volokh seeks to intervene in this case, solely in order to ask this Court to reconsider the Order of Sept. 1, 2022, which provides that Appellant's Opening Brief should be "maintain[ed] under provisional seal" until the sealing questions are resolved by "the panel assigned to decide the merits of this appeal." Volokh would like to exercise his right to promptly access a redacted version of the Opening Brief, even if Doe's name and identifying information need to be deleted from the brief for now.

II. Appellate briefs may not be fully sealed, even temporarily, without a showing that redaction would not be possible

"[T]he public's First Amendment and common law rights of access" extend to "appellate filings" as well as trial court filings, because "the public should be given an opportunity to engage in and follow the dialogue" within those filings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1097 (9th Cir. 2014). Circuit Rule 27-13(a), which recognizes that "This Court has a strong presumption in favor of public access to documents," reflects this principle. And "the public interest in obtaining news is an interest in obtaining contemporaneous news," Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (emphasis added), not long-delayed news. Indeed, even a delay of from a few days to "up to two weeks" in making filed documents accessible may violate the right of access. Id. at 597-98.

This right of contemporaneous access can be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th Cir. 1998) (cleaned up). In particular, even when some information in a document must be kept confidential, it should generally just be redacted, rather than having the whole document sealed. See 9th Cir. R. 27-13(e) (requiring that a motion to seal "shall request the least restrictive scope of sealing and be limited in scope to only the specific documents or portion of documents that merit sealing, for example, propose redaction of a single paragraph or limit the request to a portion of a contract"). "When redaction is required to protect privacy interests, it must be narrowly tailored to allow as much disclosure as is feasible." Certain Interested Individuals v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir. 1990) (quoting Matter of Search Warrants Issued on June 11, 1988, for the Premises of Three Buildings at Unisys, Inc., 710 F. Supp. 701, 705 (D. Minn. 1989)).

Volokh does not object to having Doe's name and identifying information being kept confidential while the appeal is pending, so as to preserve the merits panel's ability to decide the substantive issues in this appeal. But, as Rule 27-3(e) suggests, "Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal," and the redacted version should then be publicly released.

To be sure, Volokh appreciates that it is often most convenient to defer various motions to the merits panel. But that cannot authorize provisional sealing of briefs for many months, given the public's common-law and First Amendment rights of access to court filings. The "substantial interest in the orderly administration" of the judicial process, Courthouse News Serv., 947 F.3d at 596, may sometimes authorize brief sealing while a decision is being madebut not sealing that causes unnecessary "lengthy delays" between the time a document is filed and the time it is made publicly available, id. at 597.

Instead, either the Appellate Commissioner or a motions panel can make express "findings" whether "closure is essential to preserve higher values and is narrowly tailored to serve that interest," Phoenix Newspapers, 156 F.3d at 946 (9th Cir. 1998)and in particular can decide whether redaction rather than outright sealing is a feasible way of preserving the merits panel's role in deciding the ultimate issues while still protecting the public right of access. Simply deferring the decision to the merits panel, without such "findings" that "closure is essential," would likely "cause[] far greater delays than [are] necessary to adequately protect [this Court's] administrative interests given the reasonable alternatives available." Id.

Conclusion

Volokh therefore asks that he be allowed to intervene, and that this Court reconsider (under 9th Cir. R. 27-10(b)) the September 1 decision that provisionally sealed the briefs until the merits panel is assigned.

And here's the part about intervention:

I. Volokh is entitled to intervene for the purpose of getting access to court records

Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law, where he writes often about First Amendment law. He has written about this case at Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1375-76 (2022), http://www.law.ucla.edu/volokh/pseudonym.pdf, and at Eugene Volokh, Media Outlets Forbidden from Identifying Recently Released Drug Cartel Ex-Boss as Plaintiff in Privacy Lawsuit, Volokh Conspiracy (Reason) (Oct. 12, 2021, 2:59 pm), https://reason.com/volokh/2021/10/12/media-outlets-forbidden-from-identifying-recently-released-drug-cartel-ex-boss-as-plaintiff-in-privacy-lawsuit/. He would like to write further about the appellate briefing in the case, but cannot do so because the opening brief is sealed until the case comes before the merits panel, which will likely be many months from now.

"Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2)." San Jose Mercury News v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999). This extends to intervening on appeal as well. Trump v. Deutsche Bank AG, 940 F.3d 146, 150 (2d Cir. 2019). Generally, "a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a question of fact in common," San Jose Mercury News, 187 F.3d at 1100. But in cases involving requests to access court records, the "independent jurisdictional basis and strong nexus of fact or law are not required where intervenor merely seeks to challenge a protective order" (such as a sealing order). Id. And this request is timely, because it is filed within two weeks of the order stating that the Appellant's Opening Brief shall remain sealed until the merits panel considers the matter.

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Draft Motion to Get Access to an Interesting (but Sealed) Appellant's Brief in a First Amendment Case - Reason