Petition for Writ of Certiorari — Venus Y. Springs, Petitioner v. North Carolina State Bar

No.

In the Supreme Court of the United States

N.C. STATE BAR,

RESPONDENT,

v.

VENUS SPRINGS,

PETITIONER.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE COURT OF

APPEALS OF NORTH

CAROLINA

PETITION FOR A WRIT OF CERTIORARI

HERMAN KAUFMAN

Counsel of Record

PO Box 352

Old Greenwich, CT

06870

(203) 537-7560

hkaufma2@gmail.com

QUESTIONS PRESENTED

In 2010, Springs, a black, female attorney, sued her employer pro se -- GMAC, now

Ally Financial, the largest recipient of bailout funds in history-- for retaliatory

discrimination. The case was dismissed without a trial in 2012. In 2014, right after

the Department of Justice ordered Ally to pay $80 million in damages for

discriminating against 235,000 minority borrowers, Springs posted the corporate

deposition video on a Youtube educational channel called the ProSe Advocate with

the stated purpose to train others how to represent themselves. A magistrate judge

issued an ultra vires order that she remove the video. In a decision that was upheld

by the Fourth Circuit, Springs respectfully told the court that only a district court

judge could issue that order. Now the NC State Bar is using Springs’ proper exercise

of her constitutional rights in resisting the magistrate as a basis for punishment. The

questions presented are:

I.

Whether the N.C. Court of Appeals erred in holding that Springs’ posting of

a deposition video --long after the proceedings were concluded -- in order to

educate poor, unrepresented litigants in an entertaining manner, namely

through commentary on how to identify deceit, is so unflattering to Ally

Financial’s corporate representative that it is not protected by the First

Amendment in conflict with 11 state courts of last resort and federal court of

appeals that have addressed the issue.

II.

Whether the failure of the North Carolina tribunal to establish any evidence

at all to support their grievance against Springs rendered the discipline

unconstitutional pursuant to Thompson v Louisville, 362 US 199, 200 [1960]

which found it a violation of constitutional due process to convict someone on

a record completely devoid of evidence, although the punishment be only

payment of a $10 fine.

ii

TABLE OF CONTENTS

Questions Presented ................................................................................................................ i

Opinions Below ...................................................................................................................... 1

Jurisdiction ............................................................................................................................. 1

Constitutional Provision Involved .......................................................................................... 1

Statement ..................................................................................................... 2

Factual Background ................................................................................................................ 6

Procedural History ................................................................................................................ 10

Reasons For Granting the Petition ............................................................................... 12

I. The Decision Below was Made in Contrast to Every Decision in the Existing

Conflict Among State and Federal Courts........................................................ 13

II. There was Absolutely No Evidence of Misconduct by Springs In the

Record ........................................................................................................ 20

Conclusion ............................................................................................................................ 23

iii

TABLE OF AUTHORITIES

Cases

Berry v. Schmitt, 688 F.3d 290, 294 (6th Cir. 2012) ............................22

Butler v. Alabama Judicial Inquiry Comm. (Ala.2001), 802 So. 2d

207 ................................................................................................................18

Colonial Auto Ctr. v. Tomlin (In re Tomlin), 105 F.3d 933, 941 (4th

Cir. 1997) ....................................................................................................25

Gentile v. State Bar of Nev., 501 U.S. 1030, 1070-71 (1991) ...................14

Goldfarb v. Va. State Bar, 421 U.S. 773, 792, (1975) ....................................14

Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 14 (1970) .20

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) .21

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988) .................20

In re Chmura (2000), 461 Mich. 517, 608 N.W.2d 31 ..........................19

In re Disciplinary Action Against Graham (Minn.1990), 453 N.W.2d

313, 321-322, certiorari denied sub nom. Graham v. Wernz (1990),

498 U.S. 820 ...............................................................................................19

In re Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426, 427, 347 N.Y.S.2d

441 (N.Y. 1973) ..........................................................................................20

In re Green 11 P.3d 1078, 1085 (Colo.2000) ...........................................18

In re Holtzman (1991), 78 N.Y.2d 184, 192-193, 573 N.Y.S.2d 39,

577 N.E.2d 30, certiorari denied sub nom. Holtzman v. Tenth

Judicial Dist. Grievance Commt. (1991) .............................................19

In re Smith ....................................................................................................25

In re Westfall (Mo.1991), 808 S.W.2d 829, 837 .....................................19

Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir. 1983)........................20

Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, (1990) ....................20

N.C. State Bar v. Springs, 273 N.C. App. 407, 846 S.E.2d 858 (2020)

.............................................................................................................1, 12, 13

National Ass'n of Letter Carriers v. Austin, 418 U.S. 264 (1974) .....20

Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791 (1976) .......23

Office of Disciplinary Counsel v. Gardner, 2003-Ohio-4048, ¶ 32, 99

Ohio St. 3d 416, 423, 793 N.E.2d 425, 432 .........................................19

Oklahoma Bar Assn. v. Porter, 1988 OK 114, 766 P.2d 958 ..............18

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) .18

Ramsey v. Bd. of Professional Responsibility (Tenn.1989), 771

S.W.2d 116, certiorari denied (1989), 493 U.S. 917 ..........................18

Simmons v. South Carolina State Ports Auth ......................................25

iv

Standing Comm. on Discipline of the United States Dist. Court v.

Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995) .....................................20

State Bar v. Semaan, 508 S.W.2d 429, 431-32 (Tex. Civ. App. 1974)

.......................................................................................................................21

United States Dist. Court., E. Dist. of Wash. v. Sandlin (9th Cir.

1993), 12 F.3d 861, 867 ...........................................................................19

Statutes

28 U.S.C. § 1257(a) ........................................................................................1

Other Authorities

James E. Moliterno, Politically Motivated Discipline, 83

Washington Law Review 3, 730-1 (2005). ...........................................24

Rules

Fed R. Civ. P. 30(b)(6) ...................................................................................7

North Carolina Rules of Professional Conduct 3.3(a)(1), 3.4(c) and

8.4(a), (c) and (d) .........................................................................................10

Constitutional Provisions

U.S. Const. amend. I .....................................................................................1

U.S. Const. amend. XIV, § 1 ........................................................................2

v

OPINIONS BELOW

The order of the North Carolina Supreme Court denying review is unreported

and is available at PetApp. 1a. The opinion of the North Carolina Court of

Appeals is reported at N.C. State Bar v. Springs, 273 N.C. App. 407, 846 S.E.2d

858 (2020); see Pet.App.3a infra. The opinion of the Disciplinary Committee of

the State Bar is unreported and is available at Pet.App. 17a.

JURISDICTION

The order of the Supreme Court of North Carolina was entered on March 15,

2021. Pet.App.1a. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States Constitution provides in

relevant part: “Congress shall make no law . . . abridging the freedom of

speech.” U.S. Const. amend. I.

The Fourteenth Amendment to the United States Constitution, Section

1 provides in relevant part; “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due

process of law. . . .” U.S. Const. amend. XIV, § 1.

1

STATEMENT

Over one million attorneys practice in the United States. Speech is at

the very core of what they do. They are charged with defending the

Constitution advocating zealously for their client’s rights. However, when it

comes to the First Amendment in North Carolina, attorneys don’t have many

rights --at least not according to the Court of Appeals of North Carolina. This

uncertainty is like a straitjacket that inhibits the truth-seeking function and

proper advocacy. The applicant for certiorari, Venus Springs, Esq. suffered a

grievance complaint issued by the North Carolina State Bar on its own behalf,

for having dared to defend her rights. The Supreme Court should clarify the

balance between the need to regulate lawyers and the lawyers right to free

expression, particularly in this case, where the attorney was acting as a

private citizen and the case had closed two years prior. It cannot be doubted

that no lawyer—and there exist thousands of them—would be subject to a

grievance for expressing disagreement with the outcome of a jury verdict or

ruling after trial. The venerable Frank S. Hogan, “Mr. District Attorney,”

District Attorney, New York County, frequently lashed out at opposing

lawyers, parties, witnesses and judges; yet never suffered any sort of a

grievance complaint for this sort of conduct; similarly, Richard Nixon, in the

Charles Manson case, pronouncing the defendants guilty before trial. Johnnie

2

Cochran, in his public attack of the court in People v. Simpson, was spared

such charges. William Kunstler was well known for speaking out during the

progress of many trials, accused of soiling the jury’s judgment and ability to

examine the proof and untold trial lawyers resorted to the same practice.

Barry Scheck, prominent attorney, who heads the “Innocence Project,” at the

end of the once famous nanny trial in Suffolk County, MA, issued a vicious

tirade against the verdict of guilty; there were no repercussions.

So what is the extent to which a lawyer can talk outside of pending

litigation? Ally Financial was the recipient of the biggest bailout in history, at

one point being mostly owned by the American taxpayer. It had been cited

numerous times for robosigning foreclosure affidavits. Ally was required to make

payments, along with other lenders, as part of the National foreclosure

settlement. It had a reputation so bad, that it changed its name from GMAC to

Ally. In December of 2013, In December 2013, the Department of Justice (DOJ)

along with another federal agency and pursuant to a federal court order, ordered

Ally Financial Inc. and Ally Bank to pay $80 million in damages to consumers

harmed by Ally's discriminatory auto loan pricing policies. 1 Upon reading that,

Springs created a public petition: U.S. Supreme Court and U.S. Treasury: Stop

Letting Ally Financial Use Taxpayer Money to Violate Its Customers'

Constitutional Rights.

https://www.consumerfinance.gov/about-us/newsroom/cfpb-and-doj-order-ally-to-pay-80million-to-consumers-harmed-by-discriminatory-auto-loan-pricing/

1

3

At bar, Petitioner, Ms. Springs, had formed her own pro se company to help those

unable to afford counsel. In this instance, after the proceeding was concluded,

Ms. Springs loaded the deposition of the corporate plaintiff onto the Youtube

website with a critique on how to recognize false testimony; when this was done,

the case had been concluded for two years. Nonetheless, Ally Financial and Amy

Bouque sought and obtained an order under Federal Rule of Civil Procedure 26,

for the plaintiff to remove all the videotaped depositions from her channel. This

she did when ordered by the Article III appointed district judge and she never

posted the video again. U.S. Const. art. III, § 1.

It is important to note that

North Carolina State Bar relies on and aims to vilify Springs by making her into

a person of bad character because they completely lack evidence of the charges

sustained. Indeed, this is what the Petitioner was “guilty” of in this case: Giving

her opinion based on data that was verifiable as true. She did not make up the

data that she relied on in identifying signs of lying. This position could not be

more unjust. Yet, Petitioner was cited for unprofessional conduct which will

forever scar her future and limit her ability to earn a living on the same equal

footing of other lawyers.

Springs’ behavior was trivialized by the Court of Appeals in two patently

incorrect respects: a) Springs was not an expert in recognizing false testimony

and the information she relied on was not peer reviewed; and b) to the extent

Appellant was exercising her first amendment rights, that amendment was

inapplicable to this case; both pronouncements were incorrect. First, the Court

4

of Appeals possessed no necessary knowledge or training to render an opinion

whether petitioner possessed the requisite training in question. Second the

court never even looked to see what Springs actually stated and evaluated

whether it was opinion or a verifiable statement of fact.

The actual grievance was founded upon Appellant’s failure to take down

the video as required by the rules pertaining to federal magistrates; however,

because the magistrate’s authority was limited to a mere recommendation, his

order was null and void. This whole matter suffers from a double standard. She

had a constitutional right under Article III. She did not play games; she filed a

notice within days of the magistrate’s order explaining that she had great

respect for him but her legal analysis showed that he had no jurisdiction to make

the decision. She told him she would obey the order of an Article II Judge after

a denovo view. See PetApp. 25a. She of course, was right, and that decision

affirming her analysis has been cited 12 times by other courts. See PetApp. 28a.

Thus Ally Financial’s legal fees in pursuing the orders of the magistrate judge

along with the magistrate judge’s ultravires acts cannot be attributed to her

behavior but their own. However; the North Carolina State Bar chose to blame

Springs, the black, female lawyer exercising her constitutional rights.

The actual words Springs’ said do not appear once in the relator’s or the

Court of Appeal’s opinions. There is a reason for that. To support its decision, it

is important that the opponent sticks to the prejudicial characterization that

Springs accused Amy Bouque of a crime. That is not accurate. Nothing in the

5

record shows she was trying to harass Bouque. The First Amendment rights of

attorneys is a difficult issue. Intelligent minds having different viewpoints are

reflected most outstandingly in the multiple opinions of this Court. This issue

on the free speech rights of attorneys has a widespread affect. More than 100

million cases are filed each year in state trial courts, while roughly 400,000 cases

are filed in federal trial courts. There are approximately 30,000 state judges and

1,700 federal judges. An attorney’s rights to comment, criticize, train, opine, and

disagree with outcomes, litigants, judges, and others, before, during and after

trial can be at issue at any time in anyone of these cases, before or long after

trial. It is important to address the free speech uncertainty that now exists in

the bar of attorneys in this nation because how can they help their clients fully

when their own status unclear?

FACTUAL BACKGROUND

Springs sued

Ally

Financial

Inc.(“Ally”) pro

se for retaliatory

discrimination after Ally fired her one week after learning she sued her previous

employer for discrimination2. Springs lost the case against Ally Financial on

summary judgment in January 2012. In and afterwards started a company

called the Pro Se Advocate LLC which provided free legal education to the poor

and unrepresented litigant. In connection with that purpose, two years after the

2

The previous case was resolved out of court after Springs’ succeeded on summary judgment.

6

case closed Springs posted excerpts of Ally’s corporate (Fed R. Civ. P. 30(b)(6))

deposition video on a YouTube page called the Pro Se Advocate from January to

April 2014. One of the videos specifically was labeled to train pro se litigants

how to spot dishonesty in a litigant during a deposition. The video was 37

minutes with the first 3 minutes identifying gestures made by the deponent that

indicated she may be lying or hiding something. The rest was the deposition with

commentary from Springs through-out when the deponent said something that

contradicted the facts. Below is the content posted.

Amy Bouque 30(b)(6) Deposition: Best Ways to Tell if a Witness is

Lying

Published on Mar 19, 2014

Sign the Petition against Ally Bank formerly GMAC ast

http://chn.ge/10z4qN0.

Here I have attached a 30(b)(6)

deposition of Ally Executive Amy Bouque to help the pro se

advocates and

parties who have to go through discovery the

first time and conduct and appear at depositions. I comment on

the signs of deceit as explained by psychology websites in a

slightly humorous and exaggerated way. It is not an exact

science. This is one of the first depositions I ever conducted and

it was a telephone deposition. I was no expert but I want others

to learn and become even better just as I did. Here Ally says it

doesn’t think written policies are a good idea and HR prefers to

use the subjective instead of objective measures. Courts have

repeatedly said the lack of fixed standards defined in written

policies and procedures give the inference of employment

discrimination. 457 F.2d 1377 (4th Cir., 1972), 704 F.2d 613

(11th Cir), 457 F.2d 346, 359 (5th Cir. 1972), 720 F.2d 326, 3367 (4th Cir. 1963).

TRANSCRIPT OF AUDIO

Hello, this is Venus Springs and I want all of my pro se advocates

out there to learn how to conduct a deposition. Now this is a

telephone deposition and telephone depositions are not ideal,

7

especially if you have a hearing deficiency but welcome to the procorporation fourth circuit federal court system. But I digress.

This deposition was videotaped and I have included some clips for

you to observe the signs so that you can tell if your witness is

being insincere. So let’s start with the facial and hand gestures in

this first clip. This is called the mouth cover, it’s in all the

psychology books, it’s a sign of insincerity.

This one is called the monkey speaks no evil, the deponent’s

subconscious mind somehow believes that if she covers her mouth

when she lies, she will not be held responsible for those

statements.

This here is the ear touch or the monkey hears no evil, she doesn’t

even want to hear her own lies. This is the sudden touch of

dandruff head scratch. Here is another telltale sign, it’s the nose

touch.

Here we have the mouth breather or the omg whistle. This is the

stare into space. This is a repeat of the nose touch. This is the

furrowed brough combined with sudden whiplash, gotta hold my

neck.

Ugh, this is one of the worst signs, the Pinocchio, the deponent’s

subconscious mind thinks her nose is growing while she, while

she is lying and that everyone can see it so she tries to cover her

nose so that we cannot see in growing. It’s an extreme case.

This gesture is just called the liar, liar and it’s sad really because

this deponent may actually have a conscious and she is using her

two hands up against, pressed up against her mouth to try to

present, to try to prevent herself from being insincere.

So now let’s observe this portion of the deposition and see what

we can learn.

[Bouque for Ally Financial volunteers that she can assure that

Ally Financial did not discriminate against her. Springs asks if

Bouque, both employed by Ally and speaking for Ally would

honestly tell her if Ally Financial did discriminate against her?

8

Bouque answers in the affirmative. See the exchange in PetApp.

44a-46a]

At 11:44 Springs’ Commentary:

Note how this deponent answers a question that wasn’t

even asked, liars will prepare canned responses without

there even being a question.

[After Bouque states that there are no written guidelines on

termination and supervisors are guided by past practices, then

Springs’ asks what if your past practices were discriminatory. See

PetApp. 61a-63a]

12:02:49/7:38– Springs’ Commentary:

Note how she touches her ear, it is one of the easiest ways

to tell if someone is lying or insincere.

[Bouque and Springs have an exchange about written policies.

Bouque states that she believes that written policies are not a

good idea. Springs asks how Bouque knows if policies changed if

she has nothing in writing – See PetApp. 69a-71a.]

12:05:16/10:13 Springs’ Commentary:

Research shows that when people lie, they tend to touch

the base the base of their nose, that’s a dead giveaway.

[Bouque states every termination decision is reviewed by an

attorney after previously stating that some termination decisions

are not reviewed by an attorney. See PetApp. 72a-74a]

12:14:11 Springs’ Commentary:

Note how she will touch her nose in her answer, her entire

testimony is contradictory and incredible.

Springs was never accused by Ally Financial or Amy Bouque, the

designated officer, of defamation. Ally Financial requested a court order to have

9

Springs remove the video. Springs ultimately removed the video in June 2015

and it is undisputed that she never republished it. The federal judge wrote in

his July 7, 2015, opinion that the ProSe Advocate Youtube channel was checked

and Springs was in compliance with his order. The federal judge’s determination

that Springs was in compliance with the court order should be binding on the

state. The State Bar’s witness, Brinson, testified to that fact.

PROCEDURAL HISTORY

The North Carolina State Bar opened a grievance against Springs, as its own

complainant on April 8, 2015. It did not provide Springs notice of this complaint or

grievance. On 11 October 2017, the State Bar sent a Letter of Notice with the

grievance dated April 8, 2015 to Springs alleging violations of the North Carolina

Rules of Professional Conduct 3.3(a)(1), 3.4(c) and 8.4(a), (c) and (d). The State Bar

filed a complaint 16 April 2018 before the Disciplinary Hearing Commission (DHC)

against Springs. The complaint alleged that:

(a)

By publishing material obtained in discovery in a manner that

served no substantial purpose other than to humiliate or embarrass

a participant in the judicial process, Defendant engaged in conduct

prejudicial to the administration of justice in violation of Rule 8.4(d);

(b)

By engaging in a persistent course of action which the Court

described as "playing games," thereby protracting litigation on this

issue, Defendant engaged in conduct prejudicial to the

administration of justice in violation of Rule 8.4(d); and

(c)

By maintaining a link to a video containing material from

Bouque's video deposition on her YouTube page at least eleven

months after the U.S. District Court's final protective order,

10

Defendant knowingly disobeyed an obligation under the rules of the

tribunal in violation of Rule 3.4(c).

The hearing was held on March 8, 2019. The DHC dismissed one alleged violation

as alleged in paragraph (b) of the complaint. The DHC found that

(a)

By publishing material obtained in discovery in a manner that

served no substantial purpose other than to humiliate or embarrass

a participant in the judicial process, Defendant engaged in conduct

prejudicial to the administration of justice in violation of Rule 8.4(d);

[See PetApp. 22a] and

(b)

By having a link on her YouTube Page that led to a thirdparty's posting of a video containing material from Bouque's video

deposition on August 15, 2017, at least eleven months after the U.S.

District Court's final protective order, Defendant knowingly

disobeyed an obligation under the rules of the tribunal in violation of

Rule 3A(c). See PetApp. 23a.

The DHC did not make any findings of fact as to whether Springs statements

were truth, opinion or false. In fact the tribunal did not even consider the matter

relevant. No evidence at all was presented by the State Bar in support of the finding

that Springs made the video with no other purpose than to embarrass Ally Financial

and Amy Bouque.

Neither Ally Financial nor Amy Bouque appeared. Springs

appealed argued that the discipline violated her First Amendment rights because

her statements were not shown to be false or made with actual malice. Neither were

her statements shown to be a clear and present danger nor having a substantial

likelihood of material prejudice to the administration of justice. The NC Court of

Appeals rejected the First Amendment argument with little analysis.

With respect to Springs’ arguments that she was disciplined with no

evidence the NC Court of Appeals said the following:

11

Defendant argues that her sole intent was to show pro se

litigants how to identify signs a deponent may be lying. [S]he

does not refute that she is not an expert on how to tell if someone

is lying and admitted that it "is not an exact science[.]"

Furthermore, the online articles defendant relied on to support

her assertions Bouque's gestures indicated she was lying were

not peer-reviewed, did not come from any scientific journal, and

did not cite to any scientific research. Thus, defendant, who is

not an expert, had no legitimate evidence. . . . There are many

other ways defendant could have trained pro se litigants without

publicly humiliating and accusing a former legal adversary of a

crime. . . The record is replete with evidence of defendant

ignoring and trying to find ways around the magistrate judge's

protective order before it was vacated, despite the fact that there

was no stay of the order pending appeal. As a result, Ally

Financial was forced into prolonged litigation of the matter,

which lead to substantial legal costs and fees. State Bar v.

Springs, 273 N.C. App. 407 [*22-23], 846 S.E.2d 858 (2020) [Here

again punishing Springs for exercising her constitutional rights

despite the other side’s improper insistence on use of the

magistrate].

****

Springs does not reasonably argue that she had a First

Amendment interest in the kind of speech at issue, and nor can

she. . . . In contrast, the State Bar has a legitimate interest in

protecting the integrity of the judicial system and ensuring the

fair administration of justice through its regulation of the legal

profession, an interest which is recognized in Rule 8.4(d). N.C.

State Bar v. Springs, 273 N.C. App. 407, 846 S.E.2d 858 (2020).

That is not the clear and present danger test or the substantial likelihood of

material prejudice test. The standard used by the North Carolina Court is not

accepted by any other state.

REASONS FOR GRANTING THE PETITION

This petition presents a longstanding unresolved conflict among the highest

12

courts of various states and three courts of appeals on the First Amendment rights

of attorneys.

I.

The North Carolina Court Rendered a Decision that Conflicts with

Each State and Federal Court that Considered the Extent of Advocacy

Permitted to an Attorney.

A. The Decision Goes Against the Reasoning of Supreme Court

Precedents.

The N.C. Court of Appeals concluded that Springs had no First Amendment right

in her speech at all. There was no finding of fact related to the truth or falsity of her

statements. Her actual words were only characterized in a conclusory fashion and never

once quoted. They rejected the First Amendment as having any bearing on the outcome

of this case. The mention of the balancing test of Gentile was surplusage because they

never applied it. In its deminimus discussion of the First Amendment, the N.C. Court of

Appeals purports to follow Goldfarb v. Va. State Bar, 421 U.S. 773, 792, (1975) and

Gentile v. State Bar of Nev., 501 U.S. 1030, 1070-71 (1991). We have found no case

where a mere training session has been the subject of a disciplinary action. Springs’

statements were entitled to First Amendment protection because those statements

were on matters of public concern to a public figure, were not provably false, and

were expressed solely through hyperbolic rhetoric. Snyder v. Phelps, 562 U.S. 443,

450-51 (2011). The arguably “inappropriate or controversial character of a statement

is irrelevant to the question whether it deals with a matter of public concern.” Rankin

v. McPherson, 483 U.S. 378, 387 (1987). Yet the N.C. Court of Appeals is in stark

13

contrast to rulings by this Court on speech unrelated to a pending case.

While the Supreme Court has not directly decided a case of an attorney that

is disciplined for speech outside of pending litigation, there are principles of law in

seven cases that in combination or in isolation, dictate that the N.C. Court of Appeals

should be overturned. These cases have been interpreted in various conflicting ways

by the state courts and courts of appeals in their application of the First Amendment.

•

Craig v. Harney, 331 U.S. 367, 372, 91 L. Ed. 1546, 67 S. Ct. 1249 (1947). This

Court held that press statements relating to judicial matters may not be

restricted unless they pose a "clear and present danger" to the administration

of justice.

•

New York Times Co. v. Sullivan, 376 U.S. 254: In New York Times v Sullivan,

the Court held that in a civil action brought by a public official for criticism of

his official conduct, to an award of damages for a false statement "made with

'actual malice' -- that is, with knowledge that it was false or with reckless

disregard of whether it was false or not." 376 U.S., at 279-280.

•

Garrison v. Louisiana, 379 U.S. 64, 67, 85 S. Ct. 209, 212 (1964). Garrison,

applies the New York Times Co. v Sullivan standard to a criminal defamation

case where an attorney is charged with defaming judges. Garrison, 379 U.S.

at 78-79.

•

Gertz v. Robert Welch, 418 U.S. 323, 94 S. Ct. 2997 (1974) The private

defamation plaintiff who establishes liability under a less demanding

14

standard than that stated by New York Times may recover only such damages

as are sufficient to compensate him for actual injury. A public figure is either

an individual who achieves such pervasive fame or notoriety that he becomes

a public figure for all purposes and in all contexts, or an individual who

voluntarily injects himself or is drawn into a particular public controversy and

thereby becomes a public figure for a limited range of issues; in either case

such persons assume special prominence in the resolution of public questions.

Gertz v. Robert Welch, 418 U.S. 323, 325, 94 S. Ct. 2997, 3000 (1974).

•

Milkovich v. Lorain Journal Co., 497 U.S. 1, 3, 110 S. Ct. 2695, 2697 (1990)

The New York Times test, requiring a public official to show actual malice in

order to recover in a defamation suit, applies to criticism of public figures as

well as public officials. The constitutional privilege protects defamatory

criticism of nonpublic persons who are nevertheless intimately involved in the

resolution of important public questions or, by reason of their fame, shape

events in areas of concern to society at large.

•

Gentile v. State Bar of Nev., 501 U.S. 1030, 1070-71, 111 S. Ct. 2720, 2742-43

(1991). The clear and present danger standard does not apply to attorneys

who are participants in pending cases. Nevada’s standard of a "substantial

likelihood of material prejudice" test constituted a constitutionally

permissible balance between the First Amendment rights of attorneys in

pending cases and the state's interest in fair trials and such a standard (i)

was a limited regulation which, applying equally to all attorneys participating

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in a pending case, was neutral as to points of view, and (ii) merely postponed

the attorney's comments until after the trial.

“At the very least, our cases recognize that disciplinary rules

governing the legal profession cannot punish activity

protected by the First Amendment, and that First

Amendment protection survives even when the attorney

violates a disciplinary rule he swore to obey when admitted to

the practice of law. We have not in recent years accepted our

colleagues' apparent theory that the practice of law brings

with it comprehensive restrictions, or that we will defer to

professional bodies when those restrictions impinge upon

First Amendment freedoms. And none of the justifications put

forward by respondent suffice to sanction abandonment of our

normal First Amendment principles in the case of speech by

an attorney regarding pending cases. Gentile v. State Bar of

Nev., 501 U.S. 1030, 1054, 111 S. Ct. 2720, 2734 (1991) [Part

IVB].

•

Snyder v. Phelps, 562 U.S. 443, 458, 131 S. Ct. 1207, 1219 (2011). Speech

cannot be restricted simply because it is upsetting or arouses contempt. “If

there is a bedrock principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable.”

•

The disciplinary body bears the burden of proving falsity. See Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986).

B. This Court Should Act Now to Decide an Acknowledged

Clear Split among the State’s Highest Courts and the Federal

Courts of Appeals.

While the North Carolina Court of Appeals declined to use either of the

standards set forth in this section, at least four states [Oklahoma, Colorado,

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Alabama and Tennessee] have used the actual-malice standard in attorney

discipline cases, framing the issue as whether the lawyer uttered the statement

with knowledge that the statement was false or with reckless disregard as to its

truth. If no knowledge or recklessness is found, these courts have declined to

discipline lawyers for accusing judges in public of bias. See In re Green 11 P.3d

1078, 1085 (Colo.2000); Oklahoma Bar Assn. v. Porter, 1988 OK 114, 766 P.2d

958; Ramsey v. Bd. of Professional Responsibility (Tenn.1989), 771 S.W.2d 116,

certiorari denied (1989), 493 U.S. 917; Butler v. Alabama Judicial Inquiry

Comm. (Ala.2001), 802 So. 2d 207 (modifying an overbroad judicial canon and

incorporating the actual-malice test for judicial campaign speech).

Ohio has expressly recognized the conflict and along with Ohio, a majority

of courts adopt "an objective standard to determine whether a lawyer's

statement about a judicial officer is made with knowledge or disregard of its

falsity." Office of Disciplinary Counsel v. Gardner, 2003-Ohio-4048, ¶ 32, 99 Ohio

St. 3d 416, 423, 793 N.E.2d 425, 432. This standard assesses an attorney's

statements in terms of what the reasonable attorney, considered in light of all

his professional functions, would do in the same or similar circumstances and

focuses on whether the attorney had a reasonable factual basis for making the

statements, considering their nature and the context in which they were made."

United States Dist. Court., E. Dist. of Wash. v. Sandlin (9th Cir. 1993), 12 F.3d

861, 867. Accord In re Chmura (2000), 461 Mich. 517, 608 N.W.2d 31; In re

Disciplinary Action Against Graham (Minn.1990), 453 N.W.2d 313, 321-322,

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certiorari denied sub nom. Graham v. Wernz (1990), 498 U.S. 820; In re Westfall

(Mo.1991), 808 S.W.2d 829, 837; and In re Holtzman (1991), 78 N.Y.2d 184, 192193, 573 N.Y.S.2d 39, 577 N.E.2d 30, certiorari denied sub nom. Holtzman v.

Tenth Judicial Dist. Grievance Commt. (1991), 502 U.S. 1009, 112 S. Ct. 648,

116 L. Ed. 2d 665. Gardner, 2003-Ohio-4048, ¶ 26, 99 Ohio St. 3d 416, 422.

In both sides of the split, the Disciplinary agency has the burden of proof.

Gardner, 2003-Ohio-4048, ¶ 32, 99 Ohio St. 3d 416, 423. Under the objective

standard, an attorney may still freely exercise free speech rights and make

statements supported by a reasonable factual basis, even if the attorney turns

out to be mistaken. Id.

The Ninth Circuit of Appeals along with the Sixth Circuit Court of Appels

have been the two federal appellate courts to use the objective standard above

to address statements by attorneys that did not involve pending cases which is

the situation at play in this case. Based on Milkovich, supra, the 9th circuit said

statements impugning the integrity of a judge may not be punished unless they

are capable of being proved true or false; statements of opinion are protected by

the First Amendment unless they "imply a false assertion of fact." See Milkovich

v. Lorain Journal Co., 497 U.S. 1, 19, (1990); Lewis v. Time, Inc., 710 F.2d 549,

555 (9th Cir. 1983); Restatement (Second) of Torts § 566 (1977) (statement of

opinion actionable "only if it implies the allegation of undisclosed defamatory

facts as the basis for the opinion"). Even statements that at first blush appear to

be factual are protected by the First Amendment if they cannot reasonably be

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interpreted as stating actual facts about their target. See Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 50 (1988). Thus, statements of "rhetorical hyperbole"

aren't sanctionable, nor are statements that use language in a "loose, figurative

sense." See National Ass'n of Letter Carriers v. Austin, 418 U.S. 264 (1974) (use

of word "traitor" could not be construed as representation of fact); Greenbelt

Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (use of word "blackmail"

could not have been interpreted as charging plaintiff with commission of

criminal offense). Standing Comm. on Discipline of the United States Dist. Court

v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995).

Certain remarks are thus statements of rhetorical hyperbole, incapable of

being proved true or false. Cf. In re Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426,

427, 347 N.Y.S.2d 441 (N.Y. 1973) (reversing sanction against attorney who

criticized trial judges for not following the law, and appellate judges for being

"the whores who became madams"); State Bar v. Semaan, 508 S.W.2d 429, 43132 (Tex. Civ. App. 1974) (attorney's observation that judge was "a midget among

giants" not sanctionable because it wasn't subject to being proved true or false).

"If it is plain that the speaker is expressing a subjective view, an interpretation,

a theory, conjecture, or surmise, rather than claiming to be in possession of

objectively verifiable facts, the statement is not actionable." Haynes v. Alfred A.

Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993).

The 6th Circuit followed the objective standard in Berry v. Schmitt, 688

F.3d 290, 302 (6th Cir. 2012) finding the special considerations identified

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by Gentile are of limited concern when no case is pending before the court. When

lawyers speak out on matters unconnected to a pending case, there is no direct

and immediate impact on the fair trial rights of litigants. Moreover, a speech

restriction that is not bounded by a particular trial or other judicial proceeding

does far more than merely postpone speech; it permanently inhibits what

lawyers may say about the court and its judges - whether their statements are

true or false. Much speech of public importance - such as testimony at

congressional hearings regarding the temperament and competence of judicial

nominees - would be permanently chilled if the rule in Gentile were extended

beyond the confines of a pending matter. The Berry court concluded that lawyers'

statements unrelated to a matter pending before the court may be sanctioned

only if they pose a clear and present danger to the administration of justice. Id

at 302.

A court should "determine what the reasonable attorney, considered in

light of all his professional functions, would do in the same or similar

circumstances." "The inquiry focuses on whether the attorney had a reasonable

factual basis for making the statements, considering their nature and the

context in which they were made." Berry v. Schmitt, 688 F.3d 290, 294 (6th Cir.

2012). Whether Ohio or Oklahoma sets the governing standard, North Carolina

did not comply with either standard.

II.

There was Absolutely No Evidence of Misconduct by Springs

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In Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624 (1960), this Court

overturned a conviction of loitering against Thompson finding it was a violation

of due process to convict and punish a person without evidence of guilt. Here

without any evidence the same result should obtain. The order that the lower

court relies on for the finding of fact that Springs was playing games, was

overturned and vacated by the Fourth Circuit Court of Appeals. Springs v. Ally

Fin. Inc., 657 F. App'x 148 (4th Cir. 2016). Yet for the N.C. Bar to interpret the

court’s order such that she was not only prohibited from posting the video but

that she was also prohibited from telling others how to legally find the video, is

an illegal prior restraint under Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96 S.

Ct. 2791 (1976). The North Carolina Court upheld the disciplinary order not

based on any evidence but a) on the incorrect position that Springs disobeyed

the order of the magistrate, which was no order at all [See 28 U.S. Code § 636;

PetApp. 28a], and b) their own subjective perceptions of the attorney’s conduct,

which never meets the threshold to impose a grievance.

The suppression of thought calls to mind a law review article which said;

At critical periods in the nation’s 20th Century history, bar

machinery has been used as a tool of repression and preservation

of homogeneous thought. Political actions and views that are out of

conformity with those currently in power, particularly in times of

perceived national crisis, have been costly for lawyers. By contrast,

bar discipline machinery has moved slowly, if at all, against the

politically well-connected. In some of these historical instances of

political use of the bar admission and disciplinary machinery, the

bar itself was both the instigator and the decision-maker. James E.

Moliterno, Politically Motivated Discipline, 83 Washington Law

Review 3, 730-1 (2005).

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A federal judge is master of the enforcement of his or her own order. It is

a fiction that Springs disobeyed the order.

Even Ally Financial’s attorney

Brinson testified that when he checked, Springs was in compliance with the

order. It is well established that the federal judge that wrote the order is in the

best position to determine compliance. “We have previously observed that we

will defer to a district court's interpretation of its own order.” Colonial Auto Ctr.

v. Tomlin (In re Tomlin), 105 F.3d 933, 941 (4th Cir. 1997) citing Anderson v.

Stephens, 875 F.2d 76, 80 n.8 (4th Cir. 1989); Simmons v. South Carolina State

Ports Auth., 694 F.2d 63, 66 (4th Cir. 1982). A court is in the 'best position to

interpret its own orders. In re Smith, 247 N.C. App. 479, 787 S.E.2d 464 (2016).

The need to regulate the legal profession should not be confused with the

right of arbitrary suppression of unpopular ideas. That standard was violated

here no matter which side of the conflict this Court finds itself. Not only does

the First Amendment allow unimpeded speech under reasonable restrictions to

protect fairness of trials but this is also necessary for clients to be properly

represented. Springs’ behavior was channeled to help the unrepresented and

nothing more. The use of the video was purely instructional and had only been

viewed by a handful of people before the Ally Financial defendants started

viewing it. It was meant to help people who could not afford counsel. It served

no other hidden purpose. And indeed there were some who benefited from its

instructions. It is undeniable on this record that there is not even an iota of

conduct that can be justified as deserving a grievance. It cannot be denied, when

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the record is examined, that the conduct of petitioner in no way went beyond the

bounds of proper behavior and in no sense was the behavior made to embarrass,

mock or make fun of anybody. Certiori is important for another reason. This

case is an excellent vehicle for the Supreme Court to clarify for the bar that it

expects nothing but the most zealous form of advocacy.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Herman Kaufman

Counsel of Record

PO Box 352

Old Greenwich, CT 06870

(203) 537-7560

hkaufma2@gmail.com

August 12, 2021

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