# Marc D. Mezibov v. Michael K. Allen, Hamilton County Ohio > Court of Appeals for the Sixth Circuit · June 16, 2005 · 411 F.3d 712 URL: https://www.frixlaw.com/law-library/cases/9498083 ## Case - **Full name:** Marc D. MEZIBOV, Plaintiff-Appellant, v. Michael K. ALLEN, Hamilton County Ohio, Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** June 16, 2005 - **Citations:** 411 F.3d 712; 2005 U.S. App. LEXIS 11341; 2005 WL 1404469 - **Precedential status:** Published - **Opinion:** Concurring in part by Moore - **Judges:** Siler, Batchelder, Moore - **Cited by:** 431 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498083 ## How later opinions describe it (automated extraction) - recognizing that Supreme Court law “arguably grants some limited First Amendment rights to parties to present legal arguments to a court” - holding that there was no adverse action when a district attorney made comments about a defense attorney’s experience and ethics allegedly in response to the defense attorney’s motions to dismiss and to disqualify the district attorney - stating that the courtroom is a forum in which "the First Amendment rights of everyone ... are at their constitutional nadir" - stating that "Velazquez [III] involved . . . a government funding program that the Court deemed a limited public forum for First Amendment purposes" ## Opinion text MOORE, Circuit Judge, concurring in part and dissenting in part. Because I emphatically disagree with the majority’s alternative holding that, “in the context of the courtroom proceedings, an attorney retains no personal First Amendment rights when representing his client in those proceedings,” Maj. Op. at 720-21,1 dissent. The majority’s conclusion that there are “no First Amendment rights on the part of the attorney participating in a judicial proceeding,” Maj. Op. at 719, first rests on the inference that, because speech in a courtroom setting is subject to considerable restrictions, the First Amendment simply does not apply inside the courtroom. I believe, however, that such an analysis is deeply flawed. While the Supreme Court and others have, on several occasions, upheld restrictions on courtroom speech, they have done so, not because First Amendment rights do not exist in the courtroom, but rather because such restrictions served to protect a defendant’s constitutional right to a fair trial and to preserve the dignity of the courts. 1 See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1081-82 , 111 S.Ct. 2720 , 115 L.Ed.2d 888 (1991) (O’Connor, J., concurring)(“Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech. This does not mean, of course, that lawyers forfeit their First Amendment rights, only that a less demanding standard applies.”) (emphasis added, citation omitted); United States v. Gurney, 558 F.2d 1202, 1209-10 (5th Cir.1977) (in affirming limitations on media access to court proceedings, explaining that, “[I]t is the trial judge’s primary responsibility to govern judicial proceedings so as to ensure that the accused receives a fair, orderly trial comporting with fundamental due process. The trial judge *724 is therefore granted broad discretion in ordering the daily activities of his court... .Within this discretion, therefore, the district judge can place restrictions on parties, jurors, lawyers, and others involved with the proceedings despite the fact that such restrictions might affect First Amendment considerations. Sixth Amendment rights of the accused must be protected always.”) (emphasis added, citations omitted). By stating that the First Amendment has no place in the courtroom, the majority also betrays the historical role of litigation as providing a forum for the expression of core political speech, see In re Primus, 436 U.S. 412, 428 , 98 S.Ct. 1893 , 56 L.Ed.2d 417 (1978) (holding unconstitutional restrictions on non-profit organization’s solicitation of prospective litigants, explaining that “[f]or the ACLU, as for the NAACP, ‘litigation is not a technique of resolving private differences’; it is ‘a form of political expression’ and ‘political association’ ”) (quoting NAACP v. Button, 371 U.S. 415, 429, 431 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963)), instead relegating attorney speech to a level heretofore occupied only by such speech as obscenity and fighting words. 2 Indeed, the motions filed in this case were not simply routine pretrial motions, but rather were motions that raised matters of public concern, i.e., a publicly elected county prosecutor’s alleged conflict of interest and alleged “[o]utrageous and [ujnethical [c]onduct” in a criminal proceeding. Joint Appendix (“J.A.”) at 7-8 (Comply 10); see orno Rev. Code § 309.01 (providing for election of county prosecutors). The majority also rests its holding that attorneys have no First Amendment rights in the courtroom on the belief that attorneys are simply like “other trial participants” who have no right “to interrupt a judicial proceeding with their questions or musings.” Maj. Op. at 718. However, I do not share the view that an attorney is simply another trial participant or that an attorney’s filing of motions seeking the dismissal of criminal charges against his or her client is somehow akin to “interruptions]” by “jurors, court reporters, bailiffs, or spectators.” Maj. Op. at 718. An attorney’s primary role is to serve as his or her client’s representative and advocate in the judicial process, and it is for this very reason that an attorney’s First Amendment rights in the courtroom must be zealously guarded. 3 The Supreme *725 Court has long recognized that parties often need the assistance of a trained, professional advocate who will represent their interests throughout the judicial process. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 546 , 121 S.Ct. 1043 , 149 L.Ed.2d 63 (2001) (“It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider. The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel.”); Gideon v. Wainwright, 372 U.S. 335, 344 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (“In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.... The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”). However, the ability and willingness of persons to serve as advocates for their clients, particularly in matters adverse to the government, will be severely hampered if persons acting under color of state law are permitted to retaliate with impunity against attorneys who exercise their First Amendment rights on behalf of their clients. See Velazquez, 531 U.S. at 548 , 121 S.Ct. 1043 (“The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.”) (emphasis added). In the end, I simply cannot agree with the majority that the First Amendment plays no role when a public official, acting under the color of state law, allegedly retaliates against an attorney who brings to light potential misconduct by the public official. See Gentile, 501 U.S. at 1034-35 , 111 S.Ct. 2720 (Kennedy, J.) (“Nevada seeks to punish the dissemination of information relating to alleged governmental misconduct, which only last Term we de *726 scribed as speech which has traditionally been recognized as lying at the core of the First Amendment.... It would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.... Public awareness and criticism have even greater importance where, as here, ... the criticism questions the judgment of an elected public prosecutor. Our system grants prosecutors vast discretion at all stages of the criminal process. The public has an interest in its responsible exercise.”) (internal quotation marks and citations omitted); Barrett v. Harrington, 130 F.3d 246, 262-63 (6th Cir.1997) (“Barrett argues that his criticism of Judge Harrington, and his exposure of her wrongdoing is protected by the First Amendment. He is clearly on sound constitutional ground here.... Freedom to criticize public officials and expose their wrongdoing is at the core of First Amendment values, even if the conduct is motivated by personal pique or resentment.”), cert. denied, 523 U.S. 1075 , 118 S.Ct. 1517 , 140 L.Ed.2d 670 (1998); United States v. Cooper, 872 F.2d 1, 5 (1st Cir.1989) (“We do not endorse the notion that an attorney can do or say anything and everything imaginable within the course of client representation under the guise of vigorous representation of his client. However, the fair administration of justice provides a valuable right to challenge in good faith the neutrality of a judge who appears to be biased against a party. Lawyers using professional care, circumspection and discretion in exercising that right need not be apprehensive of chastizement or penalties for having the advocative courage to raise such a sensitive issue to assure the client’s right to a fair trial and the integrity of our system for administering justice.”). Far from seeing the courtroom as a place where the First Amendment would “intrude,” Maj. Op. at 717,1 view the courtroom as- a place where freedom of expression should be embraced and exercised with vigor. Thus, although I agree that Plaintiff-Appellant Marc D. Mezibov has failed adequately to allege that Defendant-Appellee Mike Allen’s retaliatory conduct was so severe as to deter a criminal defense attorney of ordinary firmness from continuing to file motions on behalf of his or her client, Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc), I respectfully dissent from the majority’s alternative holding that Mezibov’s conduct enjoyed no constitutional protection. . The majority's reliance on cases upholding rules of ethics and procedure that strictly limit attorney speech is also questionable because the case at bar does not involve a challenge to restrictions imposed by the court in its role as protector of fair-trial rights and guardian of the judicial process, but rather retaliation by a county prosecutor in his role as an adversary in the litigation. . Indeed, the Supreme Court has recognized that even such lower-value speech as obscenity and fighting words is not wholly unprotected by the First Amendment. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 (1992) ("We have sometimes said that these categories of expression are not within the area of constitutionally protected speech, or that the protection of the First Amendment does not extend to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity as not being speech at all. What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) — not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.”) (internal quotation marks and citations omitted). . I also do not believe that First Amendment retaliation claims brought by attorneys can be so quickly dismissed on the basis that attorneys are mere conduits for the speech of their clients. While an attorney is expected to present the views of his or her client rather than his or her own personal views during the course of representation, an attorney’s act of agreeing to represent a client in the first instance reflects a decision by the attorney to exercise his or her First Amendment rights on behalf of the client. See Sacher v. United States, 343 U.S. 1, 9 , 72 S.Ct. 451 , 96 L.Ed. 717 (1952) ("Of course, it is the right of *725 counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling.”) (emphasis added); Canatella v. California, 304 F.3d 843, 847, 852-54 (9th Cir.2002) (viewing attorney’s challenge to sanctions imposed for "vexatious litigation, filing of frivolous actions and appeals, and the use of delay tactics” as implicating attorney’s First Amendment rights, concluding that attorney had standing because "he and others in his position face a credible threat of discipline under the challenged statutes, and may consequently forego their expressive rights under the First Amendment”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498083. Public record. Not legal advice.