# Appendix — In re Westfall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2697%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 1009 ## Text Pupreme mcoyet, US rr .u8OD SEP 9 a | ogee OF THE CLERK ) 91-4297 No. 91- In THE Supreme Court of the Anited States OcTOBER TERM, 1991 In Re GEORGE R. WESTFALL, Petitioner. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSOURI RICHARD J. LAZARUS GEorGE E. SCHAAF” Washington University GERALD P. GREIMAN School of Law GREEN, HOFFMANN & DANKENBRING St. Louis, Missouri 63130 7733 Forsyth Blvd., Suite 800 St. Louis, Missouri 63105 Of Counsel (314) 862-6800 Counsel for Petitioner “Counsel of Record St. Louis Law Printing,Inc. 13307ManchesterRd. St. Louis,MO 63131 314-231-4477 TABLE OF CONTENTS Page APPENDIX A - Missouri Supreme Court Opinions Original Disciplinary Proceeding Itt cecccskcuitapetcinestiionhattinincnniniaicininieniniees A-1 Concurring Opinion (Seiler, Sr. J.) ..........ceeseseeees A-19 Dissenting Opinion (Blackmar, C. J.) 20.0.2... A-21 APPENDIX B - Report of Special Master ................... A-42 Fe a © i incccnsrercsdisisesienctenticntastainimene A-102 APPENDIX D - Denial of Rehearing ................:scceeeeeee A-103 APPPENDIX E - Examples of Negative Commentary ................0006 A-104 APPENDIX A Supreme Court of Missouri en banc No. 72022 In The Matter of: GEORGE E. (BUZZ) WESTFALL, Respondent. Filed: May 3, 1991 ORIGINAL DISCIPLINARY PROCEEDING This is an original disciplinary proceeding instituted by the Advisory Committee of the Missouri Bar pursuant to Rule 5 against respondent George R. (Buzz) Westfall. The information charged respondent with violation of Rules 8.2(a) and 8.4(a) and (d) of Rule 4, Rules of Professional Conduct, and requested that respondent be disbarred from the practice of law. The Court appointed as Master to hear the proceedings the Honorable Bruce Normile, Judge of the 2nd Judicial Circuit. Judge Normile made findings and recommended that respondent be suspended from the practice of law for one year and that the order of suspension be stayed subject to certain conditions. In adisciplin- ary proceeding the Master’s findings, conclusions and recom- mendations are advisory in nature. This Court reviews the evidence de novo, determines independently the crediblity, weight and value of the testimony of the witnesses, and draws its own conclusions of law. Jn re Waldron, 790 S.W.2d 456, 457 (Mo. banc 1990). At all times relevant respondent served as prosecuting attor- ney of St. Louis County and as such was involved in 2 series of prosecutions of Dennis Bulloch forcrimes committed in connec- tion with the death of Bulloch’s wife, Julia. Respondent first led the prosecution of Bulloch for murderin the firstdegree. Bulloch pe, spam was acquitted of that charge and found guilty of involuntary manslaughter. He was subsequently indicted on charges of armed criminal action and destroying physical evidence. The trial court denied Bulloch’s motion to dismiss the indictment on grounds of prosecutorial vindictiveness and double jeopardy. Bulloch then filed petition for a writ of prohibition in the Missouri Court of Appeals, Eastern District, seeking to bar further prosecution of these charges. The court of appeals issued a preliminary rule in prohibition and subsequently made the writ absolute. The court of appeals’ opinion in the matter, the unanimous opinion of a three-judge panel of the court, was authored by the Honorable Kent E. Karohl. The court held first that the question of prosecutorial vindictiveness involved disputed facts, a matter to be considered on direct appeal if required. Relying on Missouri v. Hunter, 459 U.S. 359 (1983), the court also held that a subsequent trial of Bulloch for armed criminal action would constitute a violation of Bulloch’s protection under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States.' Missouri v. Hunter held that where the legislature specifically authorizes cumulative punishment under two Statutes, regardless of whether these two statutes proscribe the “same” conduct, it does not violate double jeopardy to impose cumulative punishment under such statutes in a single trial. /d. at 679. On the day the opinion was issued, respondent made remarks that constitute the basis of the information filed in this case. KSDK-TV, Channel 5, an NBC affiliate in St. Louis, broadcast ' This Court granted transfer and made the preliminary rule absolute. State ex rel. Buiioch v. Seier, 771 S.W.2d 71 (Mo. banc 1989). The United States Supreme Court denied certiorari. Missouri v. Bulloch, 493 U.S.__, 110S. Ct. 718 (1990). a = poe videotaped portions of an interview with respondent on the 6:00 p.m. and 10:00 p.m. news programs. Respondent’s statement was broadcast as follows: ... The Supreme Court of the land has said twice that our armed criminal statute is constitutional and that it does not constitute Double Jeopardy. ... but for reasons that I find somewhat illogical, and I think even alittle bit less than honest, Judge Karohl has said today that we cannot pursue armed criminal action. He has really distorted the statute and I think convoluted logic to arrive at a decision that he personally likes. The decision today will have a negative impact on all murder one cases pending in Missouri, in the future in Missouri, and some that are already on appeal with inmates in prison. So it’s a real distressing opinion from that point of view. But if it’s murder first degree and we’re asking for death, which, of course, is the most serious of all crimes, Judge Karohl’s decision today says we cannot pursue both. And that, to me, really means that he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach. The information filed by the Advisory Committee charges respondent with violating Rules 8.2(a) and 8.4(a) and (d), of Supreme Court Rule 4, Rules of Professional Conduct. Rule 8.2(a) provides: = om A lawyer shall not make a statement that the lawyer 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. Rule 8.4 provides in pertinent part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of Professional Conduct .... (d) engage in conduct that is prejudicial to the administra- tion of justice .... The Advisory Committee submits that respondent reacted to Judge Karohl’s opinion in utter disregard of the truth, of the integrity of the judicial process, and of respondent’s obligations with respect thereto. The Committee further submits that re- spondent engaged in this conduct without investigation of the facts and without factual basis for his statements. The Commit- tee briefed and argued additional violations not contained in the information. This Court will consider only those charges con- tained in the original information. See Matter of Smith, 749 S.W.2d 408, 414 (Mo. banc 1988). S. In defense respondent contends that his statements were directed to the court of appeals’ opinion and not to the qualifica- - tions or integrity of Judge Karohl and thus did not concern the qualifications or integrity of a judge. Respondent also asserts that the statements in question were merely the expression of opinion and, because opinion cannot be false, the statements are not proscribed by Rule 8.2(a). a | This Court first addresses respondent’s protestations that his Statements were merely expressions concerning the soundness of the court of appeals’ decision, not statements of actual and provable facts about the judge’s integrity. His contentions are not well taken. First, respondent stated that “the Supreme Court of the Land has twice said our armed criminal action statute is constitutional and that it does not constitute Double Jeopardy.” Immediately following, respondent stated: ... but for reasons that I find somewhat illogical, and I think even a little bit less than honest, Judge Karohl has said today that we cannot pursue armed criminal action. He has really distorted the statute and I think convoluted logic to arrive at a decision that he personally likes. (Emphasis added). Later followed this personalized language: But if it’s murder in the first degree and we’re asking for death which, of course, is the most serious of all crimes, Judge Karohl’ s decision today says we cannot pursue both. And that, to me, really means that he made up his mind before he wrote the decision, and just reached the conclu- sion that he wanted to reach. (Emphasis added.) The statements personalize the judge’s conduct and specifically refer to him, his motivation, and his integrity as it relates to his participation in the appellate judicial process. Respondent contends that his statements plainly reflect sub- jective opinion and not verifiable factual assertions. Because opinion cannot be “false,” he argues, his comments are not proscribed by Rule 8.2(a). Insupport of this position, respondent would have this Court microscopically examine the subject phrases independent of each other. He also would have this Court accept his after-the-fact characterization that his words, in sum, simply meant that the court of appeals opinion was “‘intel- lectually dishonest.” — Respondent seeks to obfuscate the issue. He merely creates an “artificial dichotomy” between opinion and fact. Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1990). In Milkovich the Court refused to recognize an artificial dichotomy between opinion and fact, relying instead on whether there was an assertion of objective fact: If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the state- ment, ‘In my opinion Jones is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is a liar.’ Id. at 2705-06. Respondent’s statements clearly imply an assertion of objec- tive fact regarding Judge Karohl’s judicial integrity. The Master so found and this Court agrees. Respondent’s language at the very least implies that the judge’s conduct exhibited dishonesty and lack of integrity and is sufficiently factual to be susceptible of being proved true or false. Respondent’s continued assertion that the statement “a little bit less than honest” was simply another way of saying “intellec- tually dishonest” is not well taken. This Court acknowledges but does not condone the all too frequent and often imprecise, rhetorical use of the term “intellectually dishonest.” In any event, in his attack on the judge respondent does not support his assignment of “dishonesty” by anything other than pointing to the long and tortuous history of armed criminal action in Mis- souri and expressing his assumption that a Missouri court was again in error. Respondent does not elucidate by suggesting, for example, precedent or logic that he believes would constitute an “honest” opinion on the subject. He merely points to similar language and comments by other attorneys, including language used by some judges in dissenting opinions. Itis notrespondent’s function, but the appropriate disciplinary committees’, to initiate enforcement of the Professional Rules. Il. Respondent contends that construction of Rule 8.2 or 8.4 so as to prohibit the comments made would violate both his right to free speech and his listeners’ right to know as guaranteed by the First Amendment to the United States Constitution. It is important to note at the outset that there are no bright lines to guide courts and lawyers in determining standards to impose when balancing the state’s right and need to maintain public confidence in the administration of justice with a lawyer’s first amendmentrights. It is clear, however, that attribution of honest error to the judiciary is not cause for professional discipline. in re Sawyer, 360 U.S. 622, 635 (1959). Itis also clear that lawyers who make derogatory statements about judges are protected by the First and Fourteenth Amendments to the United States Constitution from imposition of civil and criminal liability unless the statement is made “with knowledge of its falsity or in reckless disregard of whether it was false or true.” Garrison v. State of Louisiana, 379 U.S. 64, 74 (1964). What is not clear is whether the same degree of constitutional protection afforded in the civil and criminal arenas is required in professional disciplinary proceedings. The United States Su- preme Court has not directly addressed this issue, and the state courts are in disagreement. Many cogrts disregard a claim of first amendment protection in disciplinary proceedings, holding that free speech does not give a lawyer the right openly to denigrate the court in the eyes of the public. See, e.g., Inre Raggio, 87 Nev. _— 369, 487 P.2d 499, 500 (1971). Other courts reject first amend- ment arguments in holding that an attorney’s voluntary entrance to the bar acts as a voluntary waiver of the right to criticize the judiciary. See, e.g., 1n re Woodward, 300 S.W.2d 385, 393-94 (Mo. banc 1957) (“A layman may, perhaps, pursue his theories of free speech or political activities until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canon of Ethics; and if he wishes to remain a member of the bar he will conduct himself in accordance therewith.”’); State v. Nelson, 210 Kan. 637, 504 P.2d 211, 214 (1972). A smaller number of courts hold that lawyers, even as participants in the administration of justice, are entitled to the full protection of the first amendment. See, e.g., /n re Hinds, 90 N.J. 604, 449 A.2d 483, 489 (1982). While the Supreme Court has not spoken decisively on the subject, there are several decisions by the Court that provide some guidance in determining standards by which to judge the proper role of the first amendment in disciplinary proceedings. In Bradley v. Fisher, 80 U.S. 335 (1872), the Court announced severe restrictions on the right of attorneys to criticize the judiciary: “[T]he obligation which attorneys impliedly assume ... when they are admitted to the bar, [is to] maintain at all times the respect due to courts of justice and judicial officers. This obligation . . . includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts.” Jd. at 355. The states reacted by codifying legal ethics, culminating in the American Bar Association’s issuing the Canons of Professional Responsibility in 1908. Although the Canons demanded an attitude of respect toward the courts, they also recognized the importance of and encouraged attorney criticism of the judiciary. Most judicial decisions under the Canons, however, prohibited attorney criticism without regard to the actual effect of the statement on the public’s | => confidence in the legal profession. Note, Restrictions on Attor- ney Criticism of the Judiciary: A Denial of First Amendment Rights, 56 Notre Dame L. Rev. 489, 491-92 (1981). The Supreme Court next addressed sanctions against attor- neys for allegedly disrespectful remarks about the judiciary in/n re Sawyer, 360 U.S. 622 (1959). Sawyer was a defense attorney in a Honolulu trial of several people charged with conspiracy under the Smith Act. Six weeks after trial began Sawyer spoke at a meeting sponsored by the International Longshoremen’s and Warehousemen’s Union. Her speech was critical of the proceed- ings in Smith Act cases: “There is no such thing as a fair trial in a Smith Act case. All rules of evidence have to be scrapped or the Government can’t make a case.” Upon recommendation of the Bar Association of Hawaii, the Supreme Court of the territory of Hawaii suspended Sawyer from the practice of law for one year for impugning the integrity of the trial judge. /d. at626. The Ninth Circuit affirmed, 260 F.2d 189 (9th Cir. 1958), and the Supreme Court granted certiorari, 358 U.S. 892 (1958). Justice Brennan wrote the four-judge plurality opinion revers- ing the Hawaii court. He began by noting that “lawyers are free to criticize the state of the law.” Sawyer, 360 U.S. at 631. The freedom, however, does not include the right to “suggest any unseemly complicity by the judiciary in the practice.” /d. at 633. The public attribution of honest error to the judiciary, wrote Justice Brennan, is no cause for professional discipline absent a tendency to obstruct the administration of justice. /d. at 635-36. The opinion delivered by Justice Brennan would prohibit only statements that tend to obstruct the administration of justice or impugn the integrity of a judge . In a separate opinion Justice Stewart concurred in the result only because he found insufficient evidence in the record to support the charge that Sawyer impugned the integrity of the presiding judge. He emphasized, however, that he disagreed en — A-10— with any intimation in the principal opinion that an attorney may invoke the constitutional right of free speech to immunize himself from even handed discipline for proven unethical con- duct. /d. at 646 (Stewart, J., concurring). Justice Stewart adhered to the traditional notions of ethical considerations over freedom of speech: “Obedience to ethical precepts may require abstention from what in other circumstances might be constitu- tionally protected speech.” /d at 646-47. Justice Frankfurter, joined by -three other justices, dissented, finding that the record was replete with evidence to support the charge. He went on to address the “strong intimation”’ of the principal opinion that Sawyer’s speech was protected by the first amendment. While Justice Frankfurter recognized that attor- neys have certain first amendment rights to criticize judges, he maintained, however, that these rights did not extend to attor- neys actively involved in pending litigation: Of course, a lawyer is a person and he too has a constitu- tional freedom of utterance and may exercise it to castigate courts and their administration of justice. But a lawyer actively participating in a trial, particularly an emotionally charged criminal prosecution, is not merely a person and not even merely a lawyer. Id. at 666, (Frankfurter, J., dissenting). Focusing on the potential effect of such speech, Justice Frankfurter’s opinion apparently wouid ban ail critical speech by attorneys relating to pending litigation. Comment The First Amendment and Attorney Disci- pline for Criticism of the Judiciary: Let the Law ~ Beware, 15 N. Ky. L. Rev. 129, 136 (1988). The Court shed further light in Garrison v. State of Louisiana, 379 U.S. 64 (1964). Garrison, district attorney of Orleans Parish, Louisiana, was convicted of criminal defamation for statements made at a press conference which disparaged the judicial con- duct of eight judges of the Criminal District Court of the parish. The Court first held that the New York Times rule applied in criminal as well as civil actions. This rule provides that critics of public officials may not be subjected to civil sanctions unless the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The Garrison court held that “only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.” Garrison, 379 U.S. at 74. These cases and others make clear that speech concerning public officials, including judges, may be protected speech, “(flor speech concerning public affairs is more than self-expres- sion; it is the essence of self-government.” /d. at 74-75. See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838- 39 (1978) (A primary purpose of the first amendmentis to protect the free discussion of governmental affairs, including the opera- tions of the courts and the judicial conduct of judges.). The principle that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on govern- ment and public officials” is no less important when the judiciary is involved. Garrison, 379 U.S. at 75, quoting New York Times, 376 US. at 270. There are limitations, however, to first amendment protec- tion. Even protected speech may be regulated. Where unbridled speech amounts to misconduct that threatens a significant state interest, the state may restrict a lawyer’s exercise of personal rights guaranteed by the Constitution. See NAACP v. Button, 371 U.S. 415, 438 (1963). Restrictions on free speech, however, will survive judicial scrutiny only if the limitation furthers an impor- tant or substantial governmental interest and is no greater than necessary or essential to the protection of the particular govern- mental interest involved. Sable Communications of California, — iat aia ain iia eis — A-12 — Inc. v. F.C.C.,492 U.S. 115 (1989). A determination of whether the conditions have been met necessarily requires a balancing process. See L. Tribe, American Constitutional Law § 12-2, at 792-93 (2d ed. 1988). The Court balances the competing considerations of the individual’s interest in expressing certain ideas against the government’s interests in and justifications for restricting such expression. See Bates v. State Bar of Arizona, 433 U.S. 350, 363-65, reh’g denied, 434 U.S. 881 (1977). In undertaking the weighing process, it is necessary to evalu- ate the nature and importance of the interest of the state sought to be advanced through the restriction of expression. It is clear that the state has a substantial interest in maintaining public confidence in the administration of justice. The interest is not only the litigant’s but also the public’s. The interest is in the administration of justice by a fair and impartial judiciary. The right to remedy by appeal is part of this system. Consequently, the public’s confidence in the appellate process is vital. Lawyers are an integral part of and essential to the administra- tion of justice. As officers of the court, lawyers do not stand in the shoes of ordinary citizens. See Middlesex County Ethics Committee v. Garden State Bar Ass’ n, 457 U.S. 423, 434 (1982) (“The judiciary as well as the public is dependent upon profes- sionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice.””); Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (“We recognize that the States have a compelling interest in the practice of professions within their boundaries .... The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have his- torically been ‘officers of the courts.’ ””). Lawyers must execute their professional responsibilities ethically and pursuant torules, carefully considered, in order to ensure the confidence of both litigants and the public. Statements by a lawyer impugning the — A-13 — integrity and qualifications of a judge, made with knowledge of the statements’ falsity or in reckless disregard of their truth or falsity, can undermine public confidence in the administration and integrity of the judiciary, thus in the fair and impartial administration of justice. Rule 8.2(a) contemplates and seeks to effect the substantial government interest in administration of justice through a fair and impartial judiciary. It is this substantial state interest that guides this Court in its interpretation of Rule 8.2(a). The comments to the rule also recognize, however, that the public’s interest in the proper administration of justice may be served through criticism of the process. The rule, then, is sensitive to the possibility of its chilling effect and will not be interpreted to silence all lawyer criticism of the judicial system. Discipline, if imposed, is imposed not as punishment against the offender, but in protection of the public. /n re Hardge, 713 S.W.2d 503, 505 (Mo. banc 1986). Further construction of Rule 8.2(a) requires that the term “false or with reckless disregard as to its truth or falsity” be defined. The cases have consistently required subjective knowl- edge of the falsity of one’s statement before sanctions were imposed. There is no one infallible definition of “reckless disregard.” St. Amant v. Thompson, 390 U.S. 727, 730 (1968). The standard has often been defined as an awareness of the likelihood of the circulation of false information or a high degree of awareness of probable falsity. See, e.g., id. at 731. In defamation actions the standard has consistently been a subjec- tive one — the test not being whether a reasonably prudent person would have had serious doubts as to the truth of the publication, but whether the defendant in fact entertained such doubts. /d. It is not clear, however, whether the “with knowledge or in reckless disregard” standard used in defamation cases must be — strictly apr "ied in disciplinary proceedings. But see Garrison, 379 US. at 73 (“Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood.’’). Some courts have simply refused to apply the New York Times test, holding that it was inapplicable to a disciplinary proceeding. See Matter of Johnson, 240 Kan. 334, 729 P.2d 1175, 1180-81 (1986); Matter of Terry, 271 Ind. 499, 394 N.E.2d 94, 95 (1979), cert. denied sub nom., Terry v. Indiana Supreme Court Disciplinary Comm'n, 444 U.S. 1077 (1980). Other courts have in dicta indicated that the New York Times test is applicable in disciplin- ary proceedings. See Eisenberg v. Boardman, 302 F. Supp. 1360, 1362 (W.D. Wis. 1969); State Bar v. Semaan, 508 S.W.2d 429, 432-33 (Tex. App. 1974). Some courts appear to apply the New York Times test, but it is unclear whether they are applying the same subjective “with knowledge or in reckless disregard” standard. See, e.g., Ramirez v. State Bar of California, 28 Cal.3d 402, 169 Cal.Rptr. 206, 619 P.2d 399, 404 (1980). At least one court has directly addressed the question and concluded that an objective rather than subjective standard should be used. /n re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.), cert. denied sub nom. Graham v. Wernz, 1118. Ct. 67 (1990). See also Louisiana State Bar Ass‘ nv. Karst, 428 So.2d 406, 409 (La. 1983). In Graham the Supreme Court of Minnesota held that the proper standard in attorney discipline cases “must be an objective one dependent on what the reason- able attorney, considered in light of all his professional func- tions, would do in the same or similar circumstances. /d. at 322. Minnesota’s rule is identical to this Court’s Rule 8.2(a), and also identical to Rule 8.2, American Bar Association Model Rules of Professional Conduct. The Graham court noted that Rule 8.2(a), on its face, rejects an absolute privilege for false statements made by a lawyer with reckless disregard for the falsity. The court noted that the rule’s language itself is consistent with the consti- — A-15 — tutional limitations placed on defamation actions by the United States Supreme Court cases of New York Times and Garrison. Id. at 321. The court concluded, however, that because of the interest in protecting the public, the administration of justice, and the profession, a purely subjective standard is inappropriate. Id. at 322. Citing the differences between defamation (a personal wrong with a personal redress) and professional discipline (redress of a public wrong) the court decided that attorneys should be held to a higher standard when leveling criticism that may adversely affect the administration of justice. This court certifies attorneys for practice to protect the public and the administration of justice. That certification implies that the individual admitted to practice law exhibits a sound capacity for judgment. Where an attorney criticizes the bench and bar, the issue is not simply whether the criticized individual has been harmed, but rather whether the criticism impugning the integrity of judge or legal officer adversely affects the administration of justice and adversely reflects on the accuser’s capacity for sound judgment. An attorney who makes critical statements regarding judges and legal officers with reckless disregard as to their truth or falsity . . . exhibits a lack of judgment that conflicts with his or her position as “an officer of the legal system anda public citizen having special responsibility for the quality of justice.” Minn. R. Prof. Conduct, Preamble. Id. This Court agrees with the reasoning and holding of the Graham court. The objective standard survives first amendment scrutiny in light of the compelling state interests served. It remains to determine whether respondent violated the rule. The findings and conclusions of the Master stated that respon- dent did in fact act with reckless disregard as to the truth or falsity of the statements made regarding Judge Karohl. This Court agrees. When asked about the statement that the judge “made up — A-16— his mind before he wrote the decision,” respondent testified that he meant “that he’d made up his mind before he got the case,” and that his intent was to convey the message that he felt Judge Karohl’s opinion was a foregone conclusion. As stated above, respondent asserted that he meant that the opinion was “intellec- tually dishonest” but when asked to explain how the opinion was dishonest, respondent merely referred again to his view that the “Missouri appellate system has been intellectually dishonest concerning armed criminal action from day one, in that they steadfastly refuse to follow the directives of the highest court in the land . . . and I anticipated the same thing would happen again.” Before making these statements about Judge Karohl, respondent failed to investigate to determine whether Judge Karohl had participated in any cases involving the armed crimi- nal action issue, authored any opinions on the subject, or ex- pressed any personal opinions about it. - Without any corroborative evidence, respondent accused Judge Karohl of deliberate dishonesty. He accused the judge of purposefully ignoring the law to achieve his personal ends. His was not an implication of carelessness or negligence but of a deliberate, dishonest, conscious design on the part of the judge to serve his own interests. That respondent now seeks to negate the Master’s findings and conclusions by saying that respondent meant only to characterize the court of appeals opinion as being “intellectually dishonest” refutes neither the actual language used by respondent at the press conference nor respondent’s failure legitimately to criticize the reasoning and the holding of the court of appeals opinion. Without investigation, however, and knowing the court’s inability to respond to accusations of unspoken motive, respondent proceeded to make a publicly televised statement alleging purposefully dishonest conduct. Respondent’s conduct reflects a reckless disregard for the truth or falsity of the statements made. This Court has already concluded, supra, that respondent’s statements imputed lack of integrity and misconduct in the judge’s professional work. His — A-17 — Statements were without basis; the court of appeals opinion relied on the teaching of Missouri v. Hunter. Respondent’s conduct was prejudicial to the administration of justice and reflects adversely on respondent’s fitness to practice law. Ac- cordingly, this Court now finds that by reason of this conduct, the respondent violated Rule 8.2(a) of the Rules of Professional Conduct. This Court must now assess an appropriate disciplinary sanc- tion by reason of the misconduct found in this case. Respondent argues that as an elected public official, he was using the only practicable means of communicating with his constituents. It is true that public figures and those speaking on public matters should not be held in fear of retribution for their every word. Respondent is nevertheless subject to the Rules of Professional Conduct and does not enjoy a privilege recklessly to impugn before the public the integrity of the judiciary. While deference is given to the needs of public officials to be free from a chilling effect, the mere holding of public office does not exempt a lawyer from the operation of the Rules of Professional Conduct. Respondent notes that he did not engage in bribery of jurors, subornation of perjury, misrepresentation to a court, or any similar kind of conduct. This is correct. Furthermore, this Court independently notes that respondent did not accuse the judge of criminal conduct or of being subject to inappropriate influence. The Master noted that respondent has privately stated his belief in the judge’s personal integrity and that at the committee hearing respondent reported that he had privately apologized to Judge Karohl before the hearing. The Master found this to be a mitigating circumstance but noted as an aggravating circum- stance respondent’s failure to make similar public apology and thereby alleviate the damage caused to the court of appeals and the judge. There are other aggravating circumstances. At the time respondent made the statements, the case remained pend- ing. See Nelson, 210 Kan. 637, 504 P.2d 211, 215 (1972). — A-18 — Avenues for complaint were available in the form of a motion for rehearing as well as through the filing of a complaint with the Commission on Retirement, Removal and Discipline. See Matter of Riley, 691 P.2d 695, 705 (Ariz. banc 1984); Jn re Lacey, 283 N.W.2d 250, 252 (S.D. 1979). To date, respondent has continuously and steadfastly refused to deviate from his original position, even in the light of subsequent legal proceed- ings, none of which disturbed either the holding or the reasoning of the courtof appeals opinion. As the Masternoted, respondent’s twenty years’ experience as a prosecutor “belies any suggestion that he may have acted inadvertently or mistakenly, but rather that he did so knowingly or recklessly of the damage he would cause. The only apparent conclusion is that the very unusual and sensational aspects of the case afforded him an opportunity of personal publicity and self-aggrandizement which he utilized without reflection upon the serious consequences entailed.” This Court recognizes that it is possible for a lawyer to charge a judge with misconduct more egregious than that charged in the present case. This Court also recognizes that this case involves a matter of first impression and initial construction of Rule 8.2(a) and that the purpose of the rule is to protect the public. Under these circumstances, a public reprimand is appropriate. The charges brought under Rule 8.4 are encompassed within the violation of Rule 8.2(a) in this case and, for purposes of imposition of discipline, cannot be distinguished. Respondent is reprimanded and directed to pay the costs of these proceedings. /s/ Ann K. Covington, Judge Robertson, Rendlen, Higgins, and Holstein, JJ., concur; Seiler, Sr. J., concurs in separate opinion filed; Blackmar, C. J., dissents in separate opinion filed. Billings, Jr., not sitting. — A-19 — SUPREME COURT OF MISSOURI en banc No. 72022 In the Matter of: GEORGE E. (BUZZ) WESTFALL, Respondent. Filed: May 3, 1991 CONCURRING OPINION In my opinion, there is no question but that Mr. Westfall in his television interview maliciously or recklessly made a false statement that Judge Karohl wrote his Bulloch opinion to satisfy his own personal views, using less than honest reasons to do so (which opinion, incidentally, in its result necessarily exposed Mr. Westfall’s ignorance of the law of double jeopardy, no doubt thereby arousing his pique). Mr. Westfall’s self-serving protestations that he had “respect for Judge Karohl”, did not question his personal integrity “in the least” and had never intended to “impugn or question Judge Karohl’s personal integrity,” made months later, only after disciplinary charges had been filed against him, in no way change the spirit behind what he said about Judge Karohl in the television interview. Clearly, under any test, Mr. Westfall’s conduct is a violation of Rule 8.2(a) for which he deserves discipline. None of the many cases cited in the opinions herein would require otherwise. My belief is that it is not necessary or desirable to reach any conclusion in this case as to whether the same degree of consti- tutional protection afforded speech in civil and criminal cases is required in lawyer disciplinary cases. — A-20 — I concur in the judgment of discipline by reprimand. /s/ROBERT E. SEILER, Senior Judge — A-21 — SUPREME COURT OF MISSOURI en banc No. 72022 In the Matter of: GEORGE E-(BUZZ) WESTFALL, Respondent. Filed: May 3, 1991 DISSENTING OPINION We should proceed very carefully when we are asked to censor or to censure political speech. Words spoken about an opinion by a judge who is subject to the periodic scrutiny of the voters, by an elected prosecuting attorney and potential candi- date, relating to an important criminal matter, epitomize political expression. The words were spoken during an interview with a television reporter. These reporters fire streams of questions, using the responses they deem most newsworthy. These are often the most vivid.' Such give and take is a part of the political process, and should not be discouraged by the threat of hypercritical scrutiny. The interview came the day the criticized opinion was handed down. The respondent was entitied to share his overview of the course of decisions, without detailed legal research, before he spoke with the reporter. Nor was he required to withhold comment until the motion for rehearing was disposed of. An opinion is news when it is handed down. Motions for rehearing ' The principal opinion faults the respondent for asking us to “microscopi- cally examine the subject phrases independent of each other,” even though the broadcast consisted of disjointed segments selected by the editors rather than a coniinuous discourse. — A-22 — are usually formalities, often sought but seldom successful.’ There is absolutely nothing in the record indicating that the respondent was trying to bring public pressure on the author of the opinion, or the other judges of his court, to grant a rehearing. He rather assumed a martyred pose in suggesting that the bench was not sympathetic to his aims. In State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972) the Supreme Court of Kansas declined a request for discipline of an attorney who had criticized a decision of that court, disciplining him, when he was approached by an interviewer shortly after the handdown. The court perceived a “situation replete with emo- tion and acrimony,” and noted “the fact that the statements attributed to the respondent, were generally in broad terms.” /d. at 217. It took the very practical course of dismissing the petition. It would be wise for us to do likewise. I do not argue that a prosecuting attorney enjoys superior privileges with regard to political speech. His office simply demonstrates the political nature of his speech. Like rights are necessarily available to his critics. Nor do we have to speculate at this point as to whether a lawyer’s privilege of comment is greater in a case involving important public interests than in matters of purely private concern. At the formal hearing before the Advisory Committee the respondent testified as follows: MR. SCULLY: Mr. Westfall, do you think in this particular instance that you could have criticized the opin- ion of the Appellate Court in a different fashion? 2 The motion for rehearing, of course, is a condition precedent to further review. Rules 84.17, 83.03. — A-23 — A. Sure. I told Judge Karohl this before we came in here, I saw him and I did something I’ve been wantirg to do but I don’t see him often, I went over to say good morning to him and if he seemed okay to shake his hand. I said Judge, I want to say to you face-to-face, not to influence the outcome of this hearing but we’re here, I did not mean to impune [sic] or toquestion your personal integrity and I feel badly if that’s the inference you drew or your family or some of your friends or colleagues have drawn. My purpose was to criticize the opinion, I still feel it was wrong, I still feel I have the right and obligation to my constituents to say those things and I'll again given a similar situation I may be a bit more cautious to not reflect upon one’s personal integrity but that’s a tough thing to do and he sort of made it clear that he understood that dealing with the media is tough because they put on what they want to put on so I made that clear to him. The disposition of this case is solely our responsibility. We owe no deference to any other tribunal. We are the fact finder. There are no significant credibility calls in the master’s report, and I find no indication that he did not consider the respondent to be a credible witness. We must also eschew forbidden intrusions on the field of free expression. Bose Corp. v. Consum- ers Union of U.S., Inc., 466 U.S. 485, 499 (1984). A. public reprimand is a substantial sanction, which must be administered only in accordance with due process of law. In re Voorhees, 739 S.W.2d 178, 180 (Mo. banc 1987), citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 636-37 (1985). The reprimand is a scar on the lawyer’s record and, in a case impacting the First Amendment, has an obvious chilling effect on further expression. We are not at liberty to give a lawyer a “chewing” forrudeness or insolence not committed in the presence of the court. — A-24 — The judgment of reprimand is faulty, first because no violation of Rule 8.2 has been established; second, because the respondent’s speech is protected under the First Amendment and Art. I, Sec. 8, of the Missouri Constitution; and, third, because of the oppressive conduct of the Advisory Committee. 1. There is no Rule Violation Rule 8.2 is narrowly drafted, virtually in terms of the standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). There may be no discipline except for a statement that the lawyer knows to be false or with reckless disregard of its truth or falsity concerning the qualifications or integrity of a judge. The rule pointedly makes no reference to disrespect, discour- tesy, or similar impropriety. It is directed at calumny; not at indiscreet or extravagant expression. See Seested v. Post Print- ing & Pub. Co.,, 326 Mo. 559, 31 S.W.2d 1045, 1052 (1930); Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6,9 (1911); Williams v. Gulf Coast Collection Agency Co., 493 S.W.2d 367, 369 (Mo. App. 1973). The evidence does not demonstrate knowing or reckless falsehood as the rule requires. The most offensive part of the interview states, “for reasons that I find somewhat illogical, and I think even a little bit less than honest, Judge Karohl . . .” Elementary grammar teaches that what the respondent suggested were “a little bit less than honest” were the reasons, not the judg’ Any contrary conclusion is a distortion of his language. The coupling of the offensive phrase with “illogical” is a further demonstration that the respondent is commenting on the reasons. The principal opinion seeks to bolster its construction by at least six unsupportable paraphrases of the respondent’s actual words. He did not “specifically refer to [the judge’s] . . . integrity — A-25 — as it relates to his participation in the appellate judicial process.” There is no “assertion of objective fact regarding Judge Karohl’s judicial integrity.” There is no implication “that the judge’s conduct exhibited dishonesty and lack of integrity ....” The statements that respondent “accused the judge of purposefully ignoring the law to achieve his personal ends” or implied “a deliberate, dishonest, conscious design on the part of the judge to serve his own interests,” or that his statements “imputed lack of integrity and misconduct in the judge’s professional work,” are the words of the writer, not the words of the respondent. This treatment of his words highlights the danger in seeking disci- pline for expressions about public matters and will give great concern to any lawyer, whether holding office or not, or to any law professor who values a law license, about any criticism of a judge or a judicial opinion. “(S]peech concerning public affairs is more than self-expression; it is the essence of self-govern- ment.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). The United States Supreme Court has frequently reiterated its hold- ing that speech on matte s of public concern occupies the “highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quotation omitted). See also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Judge Karohl himself apparently did not think that he had been accused of dishonesty. He testified as follows: In my present opinion of his words this is a criticism of our opinion. : “_* * Q. Well, you know from talking to Mr. Westfall that he certainly meant to criticize your opinion; isn’t that correct? A. I haven’t any doubt he was criticizing the opinion from taking all of the words he used. — The principal opinion makes much of the use of “Judge Karohl” rather than “the court.” This is hardly a significant or substantial distinction, in view of our practice, along with almost all American collegial courts, of speaking through opinions prepared by one member and bearing the author’s name. The later use of the name and of the singular personal pronouns does not, by any reasonable construction, convert a statement about the reasons in an opinion to a statement about a judge’s integrity. Other portions of the interview simply charge that the opinion is result oriented. This assertion is frequently made about judicial opinions, and cannot be found to be a statement of fact. As Justice Holmes was fond of pointing out, judicial opinions are impacted by the judges’ inarticulate major premises. Members of the public have the right to comment about their perception of these premises. Some judges may be branded “plaintiff minded,” others are “tools of the insurance companies.” Some are “law and order’ to one segment of the public but “hanging judges” to others. Some are said to be “tyrants;” others “wimps.” Charac- terizations such as these are not the subject of discipline. Nor is there vice in the statement about what the judge “personally likes.” All judges have notions about the shape the law should take and hope that their views find favor with their colleagues. Least supportive of all of the discipline imposed is the state- ment that “he made up his mind before he wrote the decision, and just reached the conclusion he wanted to reach.” Judge Karohl testified that he was one of the members of a writ division which voted to issue a preliminary order in prohibition. Extraordinary writs are grudgingly issued in Missouri, and a judge who votes to issue a preliminary order very likely has a rather strong feeling that relief should be granted. Tentative views are subject to further briefing and oral argument, but writs to stop criminal > Lochner v. People of State of New York, 198 U.S. 45, 76 (1905). | heat cases are so rare that, when one is issued, the prosecutor has reason for apprehension. The respondent’s realistic analysis of the decisional process does not demonstrate a knowing or reckless falsehood. The historical development of the Missouri law of libel is helpful in demonstrating how allegedly defamatory words should be construed. In many cases over the years it is said that a plaintiff will not be allowed to place a strained and unnatural construction on language in order to support a claim of libel. Diener v. Star-Chronicle Pub. Co.,232 Mo. 416, 135 S.W. 6, 9 (1911); Thomson v. The Kansas City Star Co., 387 S.W.2d 493, 498 (Mo. banc 1965) and Jacobs v. Transcontinental & Western Air, 358 Mo. 674, 216 S.W.2d 523, 525 (1948). Innuendo is permissible only if it is fairly supported by the actual words. Langworthy v. Pulitzer Pub. Co., 368 S.W.2d 388, 389 (Mo. 1963); Swafford v. Miller, 711 S.W.2d 211, 213-14 (Mo. App. . 1986). The principal opinion uses phrases such as “respondent’s statements clearly imply” and “respondent’s language at the very least implies.” To speak in this manner is to concede that the respondent’s words do not say what the prosecution would have them say. There is no reason why defamation cases, even though serving a somewhat different purpose, should not be helpful when problems of construction are presented in a disci- plinary case.‘ Missouri, furthermore, has always recognized the distinction between defamatory statements of fact and statements of opin- ion, not grounded in objective fact. Henry v. Halliburton, 690 S.W.2d 775, 786-87 (Mo. banc 1985); Willman v. Dooner, 770 S.W.2d 275, 278 (Mo. App. 1989). We respect people’s right to express their views, especially on matters of public concern. Henry v. Halliburton, 690 S.W.2d at 784-85 (published column * See Swafford v. Miller, 711 S.W.2d 211, 213 (Mo. App. 1986). a — A-28 — and subsequent copy calling life insurance agent, identified in broad terms, “fraud” or “twister” an expression of opinion and not actionable); Anton v. St. Louis Suburban Newspapers, Inc.., 598 S.W.2d 493, 499 (Mo. App. 1980) (remark that lawyer engaged in “sleazy” dealings an expression of opinion and not actionable); Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6 (1970) (use of term “blackmail” in characterizing negotiating position of public figure securing zoning variancés was neither slander nor libel). The principal opinion asserts that the respon- dent “seeks to obfuscate the issue” by suggesting a distinction between fact and opinion, quoting from the case of Milkovich v. Lorain Journal Co.,_ __U.S.__, 110 S§. Ct. 2695 (1990). With due respect, the obfuscation comes from the principal opinion. In Milkovich, a newspaper published an editorial in which it was strongly intimated that the plaintiff and others had perjured themselves at a public hearing. The Supreme Court said simply that defamatory statements of fact might support a judgment for libel, even though they were prefaced by a phrase such as “in my opinion,” if the speaker suggests personal knowledge of the defamatory facts stated. This case is entirely different, for lack of tangible statements of fact. Milkovich is consistent with Restatement (Second) of Toris, § 566 (1965), with the general principles of Missouri Law as exemplified by our decisions, and with prior Supreme Court cases, which it cites at length. It certainly does not require this Court to abandon the historic distinction between statements of fact and statements of opinion. “{A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich, 110 S. Ct. at 2706 (citation omitted). If we were to abandon the historic distinction we would reject the wisdom of decades. The proof is also deficient in the required showing that the statement was one which “the lawyer knows to be false or [was made] with reckless disregard of its truth or falsity.” Rule 8.2 — A-29 — requires a purpose to cause harm through defamation. See New York Times, 376 U.S. at 279-83, and Part 2, infra. There is no support for a finding that the respondent had any purpose other than to denounce the opinion. Counsel for the informants, in response to my question at oral argument, said that their stron- gest case is In re Sawyer, 360 U.S. 622 (1959), which the principal opinion discusses at length. For reasons that follow in Part 2, infra, the case does not give any support to the result. Nor is there support for the claim that the statement was “knowingly or recklessly made.” “Recklessness” as applied to speech is not the equivalent of “popping off.” There must be an intent to injure before there is occasion for the determination of recklessness. There is no showing here of “false statements made with the high degree of awareness of their probable falsity” required by Garrison v. Louisiana, 379 U.S. 64, 74 (1964), discussed in Part 2, infra. Because we are the fact finder, we should not disregard the respondent’s testimony. He agreed that he should have spoken more carefully, and said that other portions of the interview which the newspeople did not see fit to air made his purpose clearer. He stated positively that he had no purpose of question- ing the judge’s integrity and that he should have phrased his comments in a different way. Distinctions based on whether he said “the court” rather than “Judge Karohl,” or “intellectually dishonest” rather than “a little bit less than honest,” show no more than negligence, and do not establish recklessness by the standard the law requires. Garrison v. Louisiana, 379 U.S. at79. Nocase cited in the principal opinion involves facts even close to this one. Several of the cases cited have assessed discipline when a lawyer has made unequivocal statements charging one or more judges, or judges acting in concert with others, of fraud, corruption or conspiracy in the disposition of particular cases. Matter of Terry,27' 1.499, 394N.E.2d 94 (1979); Ramirez v. 3 S 7 — State Bar of California, 28 Cal.3d 402, 169 Cal. Rptr. 206, 619 P.2d 399 (1980); Louisiana State Bar Ass’ nv. Karst, 428 So.2d 406 (La. 1983); In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.) cert. denied sub nom. Graham v. Wernz, __U.S.__, 111 S. Ct. 67 (1990). These cases are similar to our own opinion in Matter of Alexander, __ S.W.2d_____ (Mo. banc 1991) (No. 73107, decided April9, 1991), which properly points to the need for protecting the public from a lawyer who makes unfounded accusations for which no support is furnished, even though the lawyer, out of paranoia or other eccentricity, may believe the charges to be true. All involved unsupportable false charges of crimina! or conspiratorial conduct, and do not support the holding of this case. I would commend the approach of such cases as State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972); StateBar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974); State ex rel. Oklahoma Bar Ass’n. v. Porter, 766 P.2d 958 (Okl. 1988); Jn re Hinds, 90 N.J. 604, 449 A.2d 483 (1982); and Matter of Keller, 213 Mont. 196, 693 P.2d 1211 (1984), in which the courts have recognized that discipline for speech should not lightly be decreed. I do not admire the respondent for speaking as he did. His remarks could be described as intemperate, disrespectful, dis- courteous, poorly informed, and with a plethora of similar adjectives. He is an ambitious politician with a penchant for publicity. Perhaps he had a defense reaction to the disappointing verdict in a major case. The informants must still demonstrate violation of a narrowly drawn rule. — So 2. The First Amendment Issue The respondent places prime reliance on the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which held that even false statements are subject to constitutional protection in defamation actions if they concern public issues and public figures. The defamation plaintiff must show malice, which may be found if a false and defamatory statement is wilfully or recklessly made. /d. at 279-80. This holding introduces a new element into the law when it is sought to impose sanctions on expression. The holding was made applicable to criminal cases in Garrison v. Louisiana, 379 U.S. at 67, 74, demonstrating that the rationale and holding of New York Times apply with no less force when the remedy is criminal. The principal opinion suggests, however, that What is not clear is whether the same degree of constitu- tional protection afforded in civil and criminal arenas is required in professional disciplinary proceedings. The answer, I submit, is quite clear. Lawyers do not surrender their First Amendment rights when they accept their licenses. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In re R.M.J., 455 U.S. 191 (1982); reversing Matter of RM.J., 609 S.W.2d 411 (Mo. banc 1980). NAACP v. Button, 371 U.S. 415 (1963); In re Primus, 436 U.S. 412 (1978). These cases demon- strate that First Amendment rights must be respected in disci- plinary actions, and puta substantial burden on the states to show compelling public interest in order to support limitations on freedom of expression. There must be narrowly drawn rules to protect a compelling public interest. The principal opinion suggests that the public interest involved in disciplinary actions supports stricter controls over freedom of expression. Garrison refutes this claim, because it too involved the vindication of public rights rather than private rights. Professional discipline —In Gentile v. State Bar of Nevada, 106 Nev. 60, 787 P.2d 386 (1991), the Supreme Court of Nevada tried to one-line the First Amendment issue in a disciplinary action involving a lawyer’s public statement of his client’s innocence of pending charges. The Supreme Court granted certiorari and the case has been argued. ® State ex rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958 (Ok. 1988); Matter of Keller,213 Mont. 196, 693 P.2d 1211 (1984); In re Hinds, 90 NJ. 604, 449 A.2d 483 (1982); State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972); State Bar v. Semaan, 508 $.W.2d 429 (Tex. Civ. App. 1974). —* “subjective” test for the element of knowing and reckless false- hood in disciplinary cases. There a lawyer who lost a case charged the presiding judge with conspiring with others to deprive his client of his rights. At his disciplinary hearing he offered no evidence in support of the charges, but sought to defend on the basis that he believed the charges to be true. The court held that his professed belief could not refute the charge of recklessness. The case is in line with cases cited in Part 1, above, in which lawyers have been disciplined for charging judges with criminal or conspiratorial conduct, and with our recent case of /n re Alexander, supra, but bears not the slightest similarity to this case. Lawyers possess First Amendment rights. Before a court can legitimately impose discipline, chilling the First Amendment, the state must articulate a compelling interest. This the Advisory Committee has not done. In Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978), the Court held that the state’s interest in main- taining the confidentiality of judicial disciplinary proceedings did not justify a sanction against a newspaper which published an article about pending proceedings. This also emphasizes that lawyer and judicial discipline must be exercised in a manner consistent with the First Amendment. Pertinent alsois the trilogy of Bridges v. State of Cal.,314U.S. 252 (1941); Pennekamp v. State of Fla., 328 U.S. 331 (1946); and Craig v. Harney, 331 U.S. 367 (1947), in which the Court established a rule that a purpose of maintaining respect for the courts does not justify contempt sanctions such as have been fairly common in the past for criticism of a judge’s conduct in a pending case. The Court explained that the right of freedom of speech includes the right to criticize courts. The trilogy suggests that judges must have thick skins and do not require protection from criticism unless there is malicious defamation. First EE ae ~iit— Amendment interests far outweigh a purpose of “maintaining respect for the courts.” See also Cohen v. California, 403 U.S. 15, 22-26 (1971). The Advisory Committee failed to prove that the statement was one which “the lawyer knows to be false or [was made] with reckless disregard of its truth or falsity.” Rule 8.2 is embodied in the New York Times standard for proving defamation. New York Times, 376 U.S. at279-80. Actual malice denotes a purpose to cause harm through defamation. /d. at 279-83. The principal opinion points out that the respondent testified at the formal hearing that he did not mean to impugn the integrity of Judge Karohl, and that he did not believe, and did not mean to suggest, that the judge was not honest. The informants, incred- ibly, use this testimony as evidence that he knowingly spoke falsehoods when only a loose tongue is indicated. The principal opinion does not appear to go this far, but seizes on his admis- sions as indication that he acted “with reckless disregard as to the truth or falsity of the statements... .” In so holding, the opinion misses the point of the requirement of scienter. Contrary to the Committee’s position, /n re Sawyer, 360 U.S. 622 (1959), provides no support for the principal opinion’s remarkable conclusion that respondent spoke knowing false- hoods. A majority of the justices found that Sawyer was not charged with and could not be found to have attempted to obstruct the proceedings in an ongoing trial. The majority went on to conclude that her statements, which are much more disparaging and inflammatory than anything in this case, could not properly be construed as a personal attack on the single judge who was hearing the case. The four dissenters called for more deference to the findings of the two lower courts, and suggested that counsel in a pending trial had special responsibilities. The case, far from supporting the discipline imposed here, is at war with the present result. — A-35 — The principal opinion struggles to find “recklessness,” say- ing: It is not clear, however, whether the “with knowledge or in reckless disregard” standard used in defamation cases must be strictly applied in disciplinary proceedings. Garrison and St. Amant v. Thompson, 390 U.S. 727 (1968), provide the answer. Lawyers may not be disadvantaged in their political speech except for compelling reasons. “. Respondent’s “recklessness” is apparently found in his failure to think things through or to study the case law. But recklessness in First Amendment law is a term of art, not to be casually attributed. In Garrison, the Court said, “it is essential that the First Amendment protect some erroneous publications.” Garri- son v. Louisiana, 379 U.S. at 74. “Moreover, even where the utterance is false, the great prigciples of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood.” Jd. at 73. The United States Supreme Court has explained that in cases concerning public figures and matters of public interest reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investi- gated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact enter- tained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. (Emphasis supplied). St. Amant v. Thompson, 390 U.S. the information. The opinion refers to his “private” statement of confidence in the judge’s integrity and his apology at the formal hearing, but then asserts that he has “continually and steadfastly refused to deviate from his original position.” I do not under- stand this at all. After the formal hearing his license was in jeopardy. He should be entitled to make his defense, and public statements outside of the proceedings should surely be discour- aged. He explained that he meant no criticism of the judge’s integrity. Is the Court suggesting that he should have announced a change in his view of the court of appeals opinion? We have no right to browbeat him in this manner. The opinion presents a further problem by its repeated sugges- tions that the respondent has not laid an adequate research foundation for his criticisms of the Karohl opinion.’’ It faults him for pointing only to “the long and tortuous history of armed criminal action in Missouri,” and for his not “suggesting prece- dent or logic that he believes would constitute an ‘honest’ opinion... .” It says that he “failed to investigate to determine whether Judge Karohl has participated in any cases involving the armed criminal action rule,” overlooking his participation in the issuance of the preliminary rule. These comments belie the finding of false statement of fact. Conclusion Make no mistake about it. The principal opinion chills lawyers’ speech about judicial decisions. It invites the speaker to weigh every word. It invites political opponents to scan statements for the least suspicion of a false statement of fact and to publicize the filing of charges for any criticism of a court or a '3 See, e.g., St. Amant v. Thompson, 390 U.S. at 733 (negligent failure to investigate does not constitute recklessness). — So judge, or, for that matter, of any of the other persons protected by Rule 8.2(a), which applies to statements about adjudicatory officers, public legal officers and candidates for election or appointment to judicial or legal office, as well as to judges. The disadvantages of allowing these kinds of complaints far out- weigh the advantages. See NAACP v. Button, 371 U.S. at 433, warning of the danger inherent in censoring criticism of public issues, as follows: A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions leads to . . . ‘self- censorship.’ ... Under such a rule, would-be critics of official conduct may be deterred from voicing their criti- cism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. The respondent adduced quite a few statements of other lawyers and judges containing comments about judicial deci- sions similar to the statements challenged here. The principal opinion testily replies that “It is not respondent’s function, but the appropriate disciplinary committees’, toinitiate enforcement of the Professional Rules.” This language portends further disciplinary proceedings against lawyers and judges who ex- press themselves too freely. Many will conclude that it is wise to keep quiet. Lawyers, who have contributed so much to public discussion in the past, should not be severely disadvantaged as compared to other members of the public. On the whole record, Westfall should be fully discharged of the information. /s/ Charles B. Blackmar, Chief Justice —~ poe APPENDIX B IN THE SUPREME COURT OF MISSOURI EN BANC No. 72022 In the Matter of: GEORGE R. (“BUZZ”) WESTFALL REPORT OF SPECIAL MASTER Comes now the Special Master in this case and reports to the Court as follows: The Advisory Committee of the Missouri Bar Administration has filed its information seeking disciplinary action against Respondent, George R. Westfall. Respondent is a licensed Missouri attorney and is currently the Prosecuting Attorney of St. Louis County, Missouri. The information charges that Respondent made a television press conference attack upon the integrity of the Honorable Kent E. Karohl, a Judge of the Missouri Court of Appeals. The Advisory Committee asserts that Respondent’s statement was false or known to be false by the Respondent, and that it constituted professional misconduct. I. MATTERS NOT IN ISSUE. It may be immediately asserted that there are no issues presented in this case concerning certain rnatters. A. Both parties agree that there is no issue in this case conceming either the integrity or the competency of Judge Karohl. Respondent has testified that he does not question, and did not intend to impugn in any way, the personal integrity of Judge Karohl by the statements which he made. During these proceedings, Respondent’s attorney has characterized Judge Karohl as “a fine lawyer, and a fine judge”. — B. Both parties also agree on the following: A citizen may criticize the government, its actions and poli- cies. Likewise a lawyer is free to criticize the state of the law. /n Re Sawyer, 360 U.S. 622 (1959). It imputes no disgrace to say a judge is wrong on the law since appellate courts say so regularly. “The public attribution of honest error to the judiciary is no cause for professional discipline” /d. at p. 635. The attorney for the Advisory Committee concedes that anyone has the right to disagree with and criticize a court opinion. A lawyer may even accurately and truthfully attack the integ- rity or competence of a court or judge if done in a proper tone and through appropriate channels. 7 C.J.S. Attorney and Client, Sec. 23, p. 752. C. There is no issue presented here concerning “freedom of the press” or the right of the television station to broadcast Respondent’s statements. Under the “fair comment” doctrine, the media “has the right fairly and honestly to comment upon a matter of public interest.” Henry v. Halliburton, 690 S.W.2d 775, 780 (MO Banc 1985). A fair and accurate report by the media of the statement of an officer of the government is privileged. Restatement Second Torts, Sec. 611, Comment d; Lami v. Pulitzer Pub. Co., 723 S.W.2d 458, 459-460 (1986); Time, Inc. v. Pape, 401 U.S. 279; Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2nd Cir, 1977). Since this was a videotaped television interview, there is no question but that the media report was “a fair and accurate account.” ee II. THE UNDERLYING CASE This case arises out of the much publicized prosecution of Dennis Bulloch for crimes committed in connection with the death of his wife, Julia. Respondent has referred to the Bulloch case as “a sensational murder case, perhaps one of the four or five most publicized cases in my twenty years of prosecuting in the St. Louis area.” (MBA Ex. 1, p. 68) In May 1986 Julia Bulloch’s bound and gagged body was found in the burning garage of her home in Ballwin, Missouri. An investigation revealed that Julia died not from the fire, but of suffocation caused by two pieces of cloth which were jammed into her mouth and held in place by tape wrapped around her face and over her mouth. In August 1986, Dennis Bulloch was indicted for first degree murder. A month later, he also was indicted for arson. Bulloch’s trial on the murder charge commenced in May 1987. At trial Bulloch testified that his wife died during a drunken night of consensual sexual bondage after he had passed out in the bath- room. The jury evidently believed Mr. Bulloch, acquitted him of murder in the first degree, and found him guilty of involuntary manslaughter. The jury assessed a punishment of imprisonment for a term of seven years. On June 18, 1986, Bulloch was indicted on charges of armed criminal action and destroying physical evidence. Thereafter Defendant Bulloch, through his attorney, filed Motions to Dis- miss, based first on prosecutorial vindictiveness, and second, with respect to armed criminal action on the basis of Double Jeopardy. These motions were denied by the trial court; and Bulloch sought a writ of prohibition in the Court of Appeals seeking to bar the further prosecution of these charges. a i On August 9th, 1988, the Court of Appeals issued a Opinion prohibiting the trial court from proceeding with the armed criminal action charge. (Mo. App. E.D. #54859, Aug. 9, 1988) The opinion was written by Judge Kent E. Karohl, and joined by Judges Kelly and Smith. The opinion held first that the question of prosecutorial vindictiveness involved disputed facts and was a matter for the trial courts discretion to be considered, if necessary, on direct appeal; and second, that a subsequent trial of Bulloch for armed criminal action would constitute Double Jeopardy under the Fifth Amendment of the United States Constitution. On the day the opinion was issued, Respondent was inter- viewed by the press and made remarks critical of Judge Karohl, which are the basis of the information filed in this case. The interview was videotaped, and portions of it were shown on the Six p.m. news and ten p.m. news by KSDK-TV Channel 5, an NBC affiliate television station in St. Louis. The proceeding in prohibition was subsequently transferred to the Missouri Supreme Court which arrived at the same result as the Court of Appeals and prohibited the further prosecution of the armed criminal action upon the basis of Double Jeopardy. State ex rel Bulloch v. Seier, 771 S.W.2d 71 (MO Banc 1989). Inthe opinion in Bulloch v. Seier, supra, the Missouri Supreme Court held first, that the murder and armed criminal action counts could have been joined and tried together where “‘the charges arose from the same transaction and relate to acts committed against the same victim”. Section 565.004.2 RSMo. 1986. It held secondly, that since “[a]n armed criminal action by definition, incorporates all the elements of the underlying felony”, “(t]he two offenses are therefore the same for purposes of relators claim of successive prosecution.” Thus where the armed criminal action was exactly the same crime as the underlying felony of murder or involuntary manslaughter, and allowed only —_ a — A-46 — to enhance punishment, a second trial on the same charge would constitute Double Jeopardy under the Constitution. /Ilinois v. Vitale, 447 U.S. 410 (1980), Brown v. Ohio, 432 U.S. 161 (1977). Thus the two charges had to be tried in a “single trial”. Missouri v. Hunter, 459 U.S. 359 (1983). Respondent did seek review of the Missouri Supreme Court opinion by the Supreme Court of the United States, but review was denied. Missouri v. Bulloch, 493 U.S. __, 110 S.C. 718, 107 L.Ed.2d 738 (1990). Subsequently, Bulloch was convicted on the arson and tam- pering charges. However, that conviction was reversed upon appeal upon a finding of prosecutorial misconduct by way of argument to the jury improperly referring to Bulloch’s failure to testify in violation of his constitutional rights. State v. Bulloch (Mo. App. E.D. #55705, Feb. 13, 1990). Il A. THE CHARGES OF PROFESSIONAL MISCONDUCT IN THIS CASE On January 31st, 1989, as a result of Respondent’s remarks, the Advisory Committee of the Missouri Bar Association charged Respondent with professional misconduct. A hearing was held before the Eastern Division of the Advisory Committee on June Ist, 1989, and the committee found probable cause to believe that Respondent was guilty of misconduct. Upon Respondent’s rejection of a “written admonition” on August 31st, 1989, the general chairman filed an information in the Supreme Court on behalf of the Advisory Committee of the Missouri Bar, consisting of nine attorneys and two lay members. (Only one attorney member and one lay member are from the St. Louis area.) —s a The information filed by the Advisory Committee charges Respondent with violating Disciplinary Rules 8.2(a) and 8.4(a)(d) of Supreme Court Rule 4, Rules of Professional Conduct. Disciplinary Rule 8.2(a) provides: A lawyer shall not make a statement that the lawyer 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. Rule 8.4 (a) and (d) provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of Professional Conduct .... (d) engage in conduct that is prejudicial to the administra- tion of justice; Respondent’s videotaped statement was broadcast on the St. Louis NBC affiliate television statement on August 9, 1988, the day Judge Karohl’s opinion was handed down. Respondent’s statement was as follows: ... The Supreme Court of the land has said twice that our armed criminal statute is constitutional and that it does not constitute Double Jeopardy. ... but for reasons that I find somewhat illogical, and I think even a little bit less than honest, Judge Karohl has said today that we cannot pursue armed criminal action. He has really distorted the statute and I think convoluted logic to arrive at a decision that he personally likes. — A-48 — The decision today will have a negative impact on all murder one cases pending in Missouri, in the future, and some that are already on appeal with inmates in prison. So it’s a real distressing opinion from that point of view. but if it’s murder first degree and we’re asking for death, which, of course, is the most serious of all crimes, Judge Karohl’s decision today says we cannot pursue both. And that, to me, really means that he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach. The Bar states that the Respondent’s statement made the specific charges, first, that the judge made up his mind before he wrote the decision; second, that the judge “just reached the conclusion that he wanted to reach”; and third, that the reasons for the opinion were “somewhat illogical”; that the reasons for the opinion were “. . . a little bit less than honest’; that Judge Karohl “has really distorted the statute”, and that Judge Karohl “convoluted logic to arrive at a decision that he personally likes”. The Bar submits that Respondent reacted to Judge Karohl’s opinion in utter disregard of the truth, the integrity of the judicial process, and of his obligations with respect thereto. And that he did so without any investigation of the facts and without any factual basis for his statements. B. RESPONDENT’S DEFENSES. Respondent admits making the statements in issue, but denies that they violated Disciplinary Rules or that they were known to be false or made with reckless disregard of their truth or falsity. Respondent also raises three affirmative defenses. — ae 1) The first affirmative defense properly points out that the discipline in this case, if any, is within the discretion and authority of the Supreme Court. That is correct and no further discussion is required of this defense. 2) Respondent’s second affirmative defense asserts his rights under the free speech clause of the First Amendment to the Constitution of the United States, and under the Constitution of Missouri, Art. I, Sec. 8, “to criticize an opinion of a judge if the remarks are not knowingly false or untrue or otherwise contrary to Rules 8.2 (a) and 8.4 (a)(e) of Rule 4 of the Missouri Rules of Court of the Supreme Court of Missouri.” Respondent also asserts under the free speech defense that his statements were only the expression of opinion which cannot be false or give rise to any issue of truth or falsity. He lastly asserts that his expressed opinions were directed to the Court of Appeals opinion and not to the qualifications or integrity of Judge Karohl; and thus did not violate the Disciplinary Rules. Your Master considers the “free speech” issues to be central to the determination of this case. They wili be considered hereafter in a general discussion and in the analysis made of the specific disciplinary rules involved. 3) Respondent’s third affirmative defense asserts that: Re- spondent represents St. Louis County, Missouri, and has the right to publicly criticize a judge he believes is wrong, just as a private practicing lawyer in the confines of his office has the right to criticize a trial judge’s opinion and tell his client that the opinion should be appealed. In fact a Prosecutor does not represent a “county” or “all of the people” of a county, but rather “. . . he represents the sovereign power of the people of the state”. 27 C.J.S. Distnct and Prosecuting Attorneys, Sec. 1, p. 622-23; and he acts in the name of the “State of Missouri”. A prosecutors professional decisions —_—T must be based upon the facts of the case as he understands them and upon the law which applies. Those decisions cannot be made upon the basis of discussions with “all of the people”. A prosecutor has “the ability to influence and ensure proper governmental procedure without resort to public opinion”. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 253 (7th Cir. 1975). “The judicial system has the right to expect that its own Officers will not make public that which should not reach a juror’. Id. at page 254. A lawyer or a prosecutor must obey the law as provided in the Disciplinary Rules or be subject to discipline for professional misconduct. The third affirmative defense should be denied. Iii ANALYSIS OF FREE SPEECH A. THE NATURE OF FREE SPEECH The First Amendment to the Constitution of the United States provides that: “Congress shall make no law . . . abridging the Freedom of Speech.” Freedom of Speech is among the funda- mental personal rights and liberties protected from impairment by the states by the Due Process clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652 (1925). Stromberg v. California, 283 U.S. 359. The Missouri Constitu- tion also protects “Freedom of Speech, no matter by what means communicated”. MO Const. Art. I, Sec. 8. Justice Cardozo said that “Freedom of thought and speech . . . is the matrix, the indispensable condition, of nearly every other form of freedom.” Palko v. Connecticut, 302 U.S. 319 (1937). Free speech is given a “preferred place” as one of the “great, the indispensable democratic freedom secured by the First Amend- ment.” Thomas v. Collins, 323 U.S. 516 (1945). — A-51 — In Whitney v. California, 274 U.S. 357 (1927) Justice Brandeis described “freedom to think as you will, and to speak as you think” as a “means indispensible [sic] to the discovery and spread of political truth”, and as essential both to “stable govern- ment” and to “political change”. Id., 375-377. “At the heart of the First Amendment is the recognition of the phenomenal importance of the free flow of ideas and opinions on matters of public interest and concern.” Hustler Magazine v. Falwell, 458 U.S. 46, 50 (1988). “[T]he freedom to speak one’s mind is not only an aspect of individual liberty - and thus a good unto itself - but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consusner’s Union of the United States, Inc., 466 U.S. 485, 503-504 (1984). B. FREE SPEECH AND PUBLIC DEBATE. The Supreme Court has recognized a profound national com- mitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometime unpleasantly sharp attacks on government and public officials. New York Times Company v. . Sullivan, 376 U.S. 254, 270 (1964). “One of the prerogatives of American citizenship is the right to criticize public men and measures.” Baumgartner v. United States, 322 U.S. 665, 673 (1944). “The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical to those who hold public office.” Associated Press v. Walker, 388 U.S. 130, 164. In FCC v. Pacifica Foundation, 438 U.S. 726, 745-746, it was stated: {T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed if it is the speaker’s opinion that gives offense, that consequence is a reason for according a constitutional protection for it is a — A-52 — central tenant of the First Amendment that the government must remain neutral in the marketplace of ideas.” “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized Ameri- can privilege to speak one’s mind, although not always with perfect good taste on all public institutions.” Bridges v. Califor- nia, 314 U.S. 252, 270 (1941). Thus persons who make derogatory statements about public officials, including judges, are protected by the First and Four- teenth Amendments of the United States Constitution from imposition of civil and criminal liability, unless the statement is made with knowledge that it is false or with reckless disregard of whether it is false or not. State Bar v. Semaan, 508 S.W.2d 429, 432 (TX 1974); New York Times Co. v. Sullivan, 376 U.S. 254 (1964). C. GENERAL EXCEPTIONS TO FREE SPEECH RULES. The Supreme Court recognizes however that “not all speech is of equal First Amendment importance”, and that “‘[i]t is ‘matters of public concern’ that is at the heart of the First Amendment’s protection.” Dunn and Bradstreet v.Green Moss Builders, 472 U.S. 749, 759 (1984). The “majestic protection of the First Amendment” does not extend to certain utterances because they “are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Chaplinsky v. New Hamp- shire, 315 U.S. 568, 572 (1942). Generally restrictions on free speech can survive judicial scrutiny under the First Amendment only if certain fundamental and stringent conditions are satisfied. First, the limitation must “further an important or substantial governmental interest unre- — A-53 — lated to the suppression of expression.” Procunier v. Martinez, 416 U.S. 396, 413 (1974). Second, the restriction must be “no greater than is necessary or essential to the protection of the particular governmental interest involved.” Id. Regulation of speech is generally unconstitutional unless it is shown that the message constitutes a defamatory falsehood, or poses a “clear and present danger” to important governmental interest. Tribe, American Constitutional Law, Second Edition, Sec. 12-2, p. 791-792 (1988). The Court applies the “most exacting scrutiny” to regulations of speech based on its content, and such restrictions are only valid if “necessary to serve a compelling state interest and .. . narrowly drawn to thatend.” Id. 798-799. Thus many exceptions have arisen to the blanket protection of the First Amendment. For example, most Americans are famil- iar with Justice Holmes statement that: “The most stringent protection of free speech would not protect a man in falsely shouting “fire” in a theater and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919). There are many other recognized limitations as well. Speech that is “vulgar’’, “offensive”, and “shocking” is not entitled to absolute constitutional protection under all circumstances.” FCC v. Pacifica Foundation, 438 U.S. 726, 747 (1978). The state can lawfully punish individuals for the use of insulting “fighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, supra at page 572. Obscene materials offensive to contemporary moral standards may be controlled. Roth v. United States, 354 U.S. 476. Society can protect children from materials available to adults. Ernoznik v. Jacksonville, 422 U.S. 205, 212 (1975). Prisoner mail may be censored for limited purposes. Procunier v. Martinez, 416 U.S. 396. Publication of troop ship sailings during wartime may be enjoined Near v. —* on Minnesota Ex Rel Olson, 283 U.S. 697, 716 (1931). Child pornography is not protected. New York v. Ferber, 458 U.S. 747 (1982). Although students in public schools do not “shed their consti- tutional rights to freedom of speech or expression at the school- house gate”, Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 506 (1969), “[a] school need not tolerate student speech that is inconsistent with its basic educational mission.” Bethel School Dist. #403 v. Fraser, 478 U.S. 675, 685 (1986); or that would “substantially interfere with the work of the school or impinge upon the rights of other students.” Hazelwood School Dist. v. Kuhlmeyer, 484 U.S. 260, 271 (1988). D. DISCUSSION OF OTHER “FREE SPEECH” ISSUES. 1) An important general exception for the purposes of this case is that defamatory statements are outside the circle of constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250 (1952). This exception is critical to the alleged violation of Disciplinary Rule 8.2 and will be discussed in Section IV, Analysis of Disciplinary Rule 8.2 2. There are also general and specific limitations ona lawyer’s “free speech”. These are related to the alleged violation of Disciplinary Rule 8.4. IV. ANALYSIS OF DISCIPLINARY RULE 8.2 A. NATURE OF RULE 8.2 As indicated this rule prohibits a lawyer from making a Statement, that the lawyer knows to be false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge. Essentially it forbids professional misconduct by a lawyer by way of defamation of a judge. me spon However, The Rules of Professional Conduct encompass “‘a much broader spectrum of protection” than defamation. Matter of Terry, 394 N.E.2d 94, 95 (IN 1979). Although a defamatory statement about a judge may directly affect an individual, it “is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations.” Id. Nonetheless an examination of the law of defamation is necessary here to determine 1) if the statements made were improper under Rule 8.2, and 2) if restrictions upon the statements would violate Respondent’s constitutional rights of free speech. The law of defamation and the individual’s right to protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being — a conceptat the root of any decent system of ordered liberty . . . the right is entitled to . . . recognition . . . as a basic of our constitutional system.” Rosenblatt v. Baer, 383 U.S. 75, 92 ( 1966) (Stewart, J., concurring) “Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie.” Gertz v. Welch, 418 U.S. 323, 344 (1974). There are also constitutional rights beyond freedom of speech and press at work in this area. Both privacy and reputation involve interests of constitutional dimension. When govern- ment limits statements about an individual, it does inhibit speech; “but it also vindicates the individual’s ability to control what others are told about his or her life.” Tribe, American Constitu- tional Law, Sec. 12-12, p. 861. These rights are breached “with unmistakable force, when one’s good name is deliberately and falsely besmirched, doing violence to one’s public identity. Not surprisingly, therefore defamation has long been regarded as a form of ‘psychic mayhem’ not very different in kind, and in some ways more wounding than physical mutilation.” Id. —s Thus defamation has been classified as wholly outside the scope of First Amendment free speech protection. Chaplinsky v. New Hampshire, supra; Beauharnais, supra. Chief Justice Rehnquist has observed that “False statements of fact are par- ticularly valueless; they interfere with the truth seeking function of the marketplace of ideas and they cause damage to an individuals reputation that cannot easily be repaired by counter- speech, however persuasive or effective.” Hustler Magazine v. Falwell, Supra, p. 49. “There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances societies interest in “uninhibited, robust and wide-open debate in public issues.” Gertz, supra, 418 U.S. at 340. Free speech “values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government.” White, J. concurring, Dunn & Bradstreetv. Green Moss Builders, 472 U.S. 749, 767 (1984). “The lie, knowingly and deliberately published about a public _ Official” is simply beyond the constitutional pale. Garrison v. Louisiana, supra, 379 U.S. at 75. However to encourage the discussion of public issue, includ- ing the conduct of publi¢ officials, and to remove the inhibitory effect of the defamation law, the Supreme Court has created a constitutional privilege for good faith critics of public officials. This constitutional guarantee requires that government may not restrict even defamatory falsehoods relating toa public official’s conduct unless it is proved “that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”” New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Disciplin- oO — A-57 — ary Rule 8.2 follows these constitutional requirements by requir- ing that a lawyer’s statement about a judge must be known to be false, or be made “with reckless disregard as to its truth or falsity”. One of the reasons for giving public officials less protection than others from critical public comment is that they “. . . usually enjoy significantly grea’er access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspond- ingly greater.” Gertz, supra, p. 344. However, it may be noted that this rationale does not apply to a judge because he is required to “abstain from public comment about a pending or impending proceeding in any court.” Su- preme Court Rule 2, Code of Judicial Conduct, Canon 3 A (6). Thus Judge Karohl was not ethically allowed to make any response to Respondent Westfall’s charges at the time they were made, or to this date (since the second Bulloch case is still pending in the trial court and may face further appellate review). Part of the rationale for Disciplinary Rule 8.2 is that judges, “not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism.” (emphasis added) Ethical Consideration 8-6 of prior Supreme Court Rule 4, Code of Professional Responsibility (effective Jan. 1, 1971- Jan. 1, 1986). Thus, in order to violate Disciplinary Rule 8.2, Respondent’s Statements would have to be 1) defamatory, 2) false, and 3) malicious under the New York Times Rule. Even so, Respon- dent could not be disciplined if his statements were 4) a privi- leged opinion under “free speech” rules. — A-58 — B. DEFAMATORY NATURE OF THE STATEMENTS. 1. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community. Restatement of Torts Second, Sec. 559, Henry v. Halliburton, 690 S.W.2d 775 (MO Banc 1985). “Communica- tions are often defamatory because they tend to expose another to hatred, ridicule, or contempt . . . [Or] may tend to disparage another by reflecting unfavorably upon his personal morality or integrity.” Restatement, supra, Sec. 559, Comment b. It is not required that the communication “tend to prejudice the other in the eyes of everyone in the community or of all of his associates, noreven inthe eyes of amajority of them. Itis enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them, and that it is made... ina manner that makes it proper to assume that it will reach them.” Restatement, supra, Section 559, Comment e. “This would normally be presumed if the communication was made on television. Prosser and Keeton, The Law of Torts, Sec. 111, p. 772 (Fifth Edition 1984). In determining whether a statement is defamatory, it is pre- sumed that the persons who heard it understood the words in their ordinary and natural import. 53 C.J.S., Libel and Slander, Sec. 165 a, p. 242. Where a statement is capable of two meanings, one defamatory and one not, it must be determined which of the two meanings would be attributed to it by those to whom it is addressed. Washington Post Co. v. Chaloner, 250 U.S. 290 (1918). “The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that ii was intended to express.” Restatement, supra, Sec. 563. Where the alleged defamatory matter is published publicly to a large number of recipients, it can be presumed that if the publication was ambiguous on its face and could be construed with two reasonable meanings, some recipients would give it a —~ defamatory construction.” Prosser and Keeton, supra, Sec. 111, p. 783. In this case, Respondent’s televised communication stated or implied: 1) That Judge Karohl failed to follow the “Supreme Court of the land” which had held that the armed criminal action statute was constitutional, and that it did not constitute Double Jeopardy.; 2) That Judge Karohl “really distorted the statute . . . to arrive ata decision that he personally likes.; 3) that this was for reasons “‘a little bit less than honest’; 4) that Judge Karohl “made up his mind before he wrote the decision”; and 5) that Judge Karohl “just reached the conclusion he wanted to reach.” These statements certainly convey to the average television viewer, and to a lawyer viewer that a judge has done something wrong. It certainly disparages a judge and reflects unfavorably upon his morality and integrity. The average lay or lawyer viewer would certainly think less of such a judge. Because of the wide dissemination of television broadcasting “together with the prestige and potential effect upon the public mind of a standardized means of publication that many people tend to automatically accept as conveying truth”, publication of . defamatory matter by videotape statements broadcast on televi- sion are actionable per se. Restatement, supra, Sec. 568 A, Comment a, Sec. 569. In view of the fact that there are several million people in the St. Louis metropolitan area, it can easily been seen that thousands or hundreds of thousands of viewers may have heard the Respondent’s televised statements on the date in question. With resultant harm to him and to the admin- istration of justice. 2. False words which prejudice the person spoken of in his profession or office are actionable per se when they impute fraud, want of integrity, or misconduct in his professional work. Brown v. Kidderman, 443 S.W.2d 146, 154 (MO 1969); Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496 —_—~ (Mo. App. 1980); Smith v. VAW-CIO Federal Credit Union, 728 S.W.2d 679, 682 (Mo. App. 1987). Swafford v. Miller, 711 S.W.2d 211 (Mo. App. 1986). 50 Am Jur 2d, Libel and Slander, Sec. 122 (1970). Under the Supremacy Clause the Constitution of the United States is “the supreme law of the land; and the judges in every state shall be bound thereby”. U.S. Const., Art. VI (2). It is also required that judges be bound by oath to support the Constitu- tion. Id. (3) Supreme Court Rule 2, Code of Judicial Conduct, Canon | finds that “‘an independent and honorable judiciary is indispens- able to justice in our society” and requires that a judge “observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Canon 2A requires a judge to “respect and comply with the law and. . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3A(1) re- quires a judge to “be faithful to the law, and. . . be unswayed by partisan interest, public clamor, or fear of criticism.” The statements in issue here certainly imply an intentional violation of the Supremacy Clause and the above canons for “dishonest reasons”. They thus imply a lack of integrity and misconduct in Judge Karohl’s professional work. There was evidence that this was the inference drawn by many viewers of the television report. Respondent testified that he and his associates were contacted by various lawyers who asserted that Respondent had characterized Judge Karohl as being “dishon- est”. Judge Karohl testified that he received contacts from twenty-five or so lay people, lawyers, and judges who were upset by Respondent’s statements. 3. Another aspect of defamation law is implicated here. A statement which falsely imputes criminal conduct to another person is defamatory. Smith v. VAW-CIO Federal Credit Union, all A-61 — 728 S.W.2d 679, 682 (Mo App. 1987); Brown v. Kidderman, 443 S.W.2d 146, 153 (MO 1969); Hunt v. Gerlemann, 581 S.W.2d 913, 914 (Mo App. 1979); Sableman, The Courts Role in Interpreting Language in Libel and Slander Cases, 45 Journal of the Missouri Bar, 399, 400. Restatement, supra, Sec. 571. A specific crime need not be charged if the conduct is imputed in general terms. Restatement Torts Second, App., Sec. 571, Comment c, p. 408. (1981). A defamatory imputation may be made by innuendo, Restate- ment (1977), supra, Commentc , or by inference, implication, or insinuation. 53 C.J.S. Libel and Slander, Sec. 13, p.48. Evena lay viewer could figure out and infer that it was unethical or improper for a judge to “distort a Statute to arrive at a decision he personally liked”, or to make up his mind before he got the case. When the lay viewer is further told that the improper action was done “for reasons that were a little less than honest”, there is then an implication of even more sinister conduct. Since no facts were given to support this conclusion, the ordinary viewer would be left to infer that the dishonest reasons may have involved bribery, coercion, or intimidation, or some personal connection between the judge and some party in the case which led him to reach an improper result. The suggestion that a judge may have accepted some benefit to influence his official action in a pending judicial proceeding implies the crime of “acceding to corruption” under Sec. 575. 280 1.(1) RSMo. 1969. Also see Sec. 576.020 RSMo. 1969. Even if this was not the meaning that Respondent intended to convey, asa member of a skilled calling, he is held to the standard of his craft and assumes the risk of being misunderstood by the ordinary hearer of his publications. Greenbelt Co-Op Pub. Assn. v. Bresler, 398 U.S. 6, 23 (White J., concurring) (1970). Profes- sionals must “guard against the possibility that words known to Carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their commentin the aa —~ a eyes of the average [viewer].” Id. In view of the size of the TV audience here, it is evidence that many would infer criminal misconduct from the statement. 4. It is not the intention of the speaker, but the understanding of the hearer, by which defamation is to be determined. 53 C.J.S. Libel and Slander, Sec. 14, p. 50. However the intention of the speaker may, and in this case does, illuminate the defamatory nature of the statements made. Although Respondent’s attorney has asserted that the statements made were an attack on the “court opinion” rather than on Judge Karohl personally, Respondent’s televised statement and his subsequent testimony are to the contrary. In this respect it must first be observed that Respondent’s statement was specifically addressed to Judge Karohl and not to his “court opinion”. Respondent specifically stated that “Judge Karohl . . . has really distorted the statute to arrive at a decision that he personally likes,” ... that “‘means that he made up his mind before he wrote the decision and just reached the conclusion he wanted to reach.” Secondly, Respondent’s subsequent testimony demonstrates that his televised statement was not making reference to Judge Karohl’s “court opinion”, but to Judge Karohl and his motiva- tion. ’ “ec a. Respondent testified that ic was Judge Karohl’s “reasons” rather than his “reasoning” which were less than honest. When asked how the “reasons” were less than honest, Respondent’s reply was that he meant “the attitude of the appellate bench historically toward armed criminal action. In my opinion it was Judge Karohl’s judicial bent to begin with that is far too liberal to suit me, that 1 wasn’t surprised at all by the result.” (T, p. 46). b. When asked about the statement that the judge “made up his mind before he wrote the decision”, Respondent stated that he — A-63 — meant “that he’d made up his mind before he got the case.” (T, p. 34); and that his intent was to convey the message that he felt Judge Karohl’s opinion was a foregone conclusion. (T, p. 43). c. Inexplaining why he stated that Judge Karohl prejudged the case to reach a result that he personally wanted, Respondent stated that: “I was giving my opinion as to the decision of the overall context historically and recently of the armed criminal action statute, that the appellate judges of this state have repeat- edly beat down the armed criminal action statute.” (T, p. 48). d. Respondent also asserts that he meant that the “court opinion” was “intellectually dishonest”. However, he did not use that term in the televised interview. Nor did the television reporter recall hearing the term used, or have any recollection that the term was discussed. The reporter also testified that the term was not used on the parts of the videotape which were not used on the televised interview. (MBA Ex. 1, p. 47) However, when asked to explain how the opinion was “‘intel- lectually dishonest’, Respondent did not address the opinion at all, but again referred to his view that the “Missouri Appellate system has been intellectually dishonest concerning armed crimi- nal action from day one, in that they steadfastly refuse to follow the directives of the highest court in the land... and I anticipated the same thing would happen again.” (T, p. 51-52). 5. The history of the armed criminal action cases which frustrated Respondent Westfall is set out in the case of State Ex Rel Bulloch v. Seier, supra. That opinion demonstrates that the issues which had frustrated Respondent had been finally decided in 1983 by the United States Supreme Court in Missouri v. Hunter, 459 U.S. 359 (1983); and that the Missouri courts had thereafter complied with the decisions of the United States Supreme Court on armed criminal action. =< aa The only criticism that Respondent has made during these proceedings attacking the “reasoning” of Judge Karohl’s opin- ion concems 1) the result reached, and 2) the dictum that the armed criminai action charge could not have been initially tried with the murder charge. As to the first criticism: the Fifth Amendment to the U. S. Constitution provides that no one shall be “subject for the same offense to be twice put in jeopardy of life or limb.” It is made applicable to the states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 795 (1969). In 1983 the United States Supreme Court determined that an “armed criminal action” was the “same offense as the associated felony and had to be tried with it in a “single trial”. Missouri v. Hunter, supra. As noted in Bulloch v. Seier, supra, the decisions of the United States Supreme Court in /Ilinois v. Vitale, supra, and Brown v. Ohio, supra, had previously determined the issues presented to Judge Karohl. As to criticism of the dictum, Respondent has since testified that he had the same belief, i.e. that the armed criminal action could not have been initially tried with a murder charge. How- ever, both the dictum and Respondent’s view were corrected by the subsequent opinion of the Missouri Supreme Court which held that the armed criminal action charge could have been tried with the murder charge if originally filed with it. It must also be observed that the dictum had no effect on the outcome of the case under either Judge Karohl’s opinion or that of the Supreme Court. Thus, although Respondent could have charged and tried Defendant Bulloch with armed criminal action, he and his office failed to do so due to misadvertence [sic] or mistake. Respon- dent testified that he had failed to initially charge armed criminal action with the murder charge because 1) he “hadn’t thought of it prior to the trial”, (Ex. 6, State v. Bulloch, motion hearing, p. — A-65 — 85); 2) he didn’t think “armed criminal action” applied to the weapon used (Id. p. 94-95); and 3) he [mistakenly] believed that armed criminal action couldn’t be tried with the murder charge. (Id. p. 95). C. FALSITY OF THE STATEMENT. Since the statement is found to be defamatory in the sense in which thousands of people would have been expected to under- stand it, examination must be made as to the truth or falsity of the statement. In this respect the testimony of Respondent Westfall estab- lishes the falsity of the statement in the defamatory sense. Respondent testified that he did not question Judge Karohl’s personal integrity in the least (MBA Ex. 1, p. 66, 83) and that he did not mean to impugn Judge Karohl’s personal integrity by the televised statements that he made. (MBA Ex. 1, p. 76, 78-79). Respondent further testified that he had privately apologized to Judge Karohl on the day of the formal hearing before the committee and had advised him that he did not mean to impugn or to question his personal integrity, but only to criticize the opinion. (MBA Ex. 1, p. 79). Respondent also stated that “given a similar situation I may be a bit more cautious to not reflect upon one’s personal integrity.” (MBA Ex. 1, p. 78-79) Respondent’s attorney reported that Judge Karohl “was a fine lawyer and he’s a fine judge”. (T., p. 15). At the hearing before the committee Judge Karohl testified that neither he nor the other judges who decided the case had any personal interest or preference in the outcome, and that there were no acts by any of the judges with regard to the management of the case or the preparation of the opinion that were “less than honest”. (MBA EX 1, p. 9-10). Respondent’s statement clearly implies that Judge Karohl failed to follow the “Supreme Court of the land” which had held —< that “our armed criminal action statute was constitutional and that it did not constitute Double Jeopardy”; and that this was for “reasons less than honest”. This implication is false as well. Judge Karohl’s opinion did not challenge either of those deter- minations. The opinion merely held as the “Supreme Court of the land” had held in Missouri v. Hunter, supra, that armed Criminal action and the associated felony had to be tried in a “single trial”. D. THE REQUIREMENT OF MALICE The malice required is that the statement be made “that the lawyer knows to be false or with reckless disregard as to its truth of falsity.” Disciplinary Rule 8.2, New York Times Co, supra. In defamation cases, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” Time v. Pape, 401 U.S, 279, 291 (1971). There must be “clear and convincing proof that the defendant has knowledge of, or recklessly disregarded the falsity of the defamatory statement.” Tribe, supra, Sec. 12-12, p. 866, Rosenbloom v. Metro Media Inc., 403 U.S. 29, 30 (1971). In this case Respondent admits that he believed and knew that Judge Karohl was a man of personal integrity. Nonetheless he made the televised statements with the defamatory sense that the judge was unethical, dishonest, or evencriminal. His admissions establish that Respondent knew the defamatory statements to be false. Thus Respondent had more than “a serious doubt’ as to the truth of the defamatory statements; but rather knew their falsity. This is sufficient to establish a violation of the rule. See Worley v. OPS, 686 P.2d 404, 407 (Or App 1984). Even assuming the possibility that Respondent might not have comprehended the defamatory nature of the statements which he a made, it remains clear that he acted in reckless disregard of the truth or falsity of those statements. “Reckless disregard” is demonstrated by other factors in the case as well. It is relevant that Respondent had both time and opportunity to investigate the truth of the statement. Restatement, supra, Sec. 580A, Comment d. However, Respondent testified that, before making his critical statement about Judge Karohl, he failed to make any check to see whether Judge Karohl had participated in any Cases on armed criminal action, written any opinions on it, or expressed any personal opinions about it. Nordid Respondent check with his staff or any other persons in this respect. (T. p. 43- 44). This failure demonstrates Respondent’s recklessness since he also testified that he made the critical statements because of previous opinions of other appellate judges. “Reckless disregard” is also demonstrated by another aspect of the case. As a lawyer Respondent was aware that he should report dishonest behavior of a judge to the Commission on Judicial Discipline and Retirement, which would investigate, and if appropriate, prosecute such misconduct. However with- out making such a report, without that investigation, and without any investigation of his own, Respondent proceeded to make a publicly televised statement alleging unethical and dishonest conduct. E. WERE THE STATEMENTS PROTECTED OPINION? 1. Generally the free speech clause of the First Amendment protects the expression of “pure opinions”. Henry v. Halliburton, 690 S.W.2d 775, 782 (Mo Banc 1985), Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo App. 1980). 53 C.J.S., Libel and Slander, Sec. 12, p. 45. Justice Powell wrote for the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974): “Under the First Amendment there is no such thing as a false idea. However — A-68 — pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false state- ments of fact.” In analyzing Justice Powell’s meaning in Gertz it cannot be overlooked that in his dissenting opinion in Letter Carriers v. Austin, 418 U.S. 264, at 297, which was both argued and decided on the same dates as Gertz, he argued that while derogatory opinions about “scabs” in general were protected, the speakers had “specifically impugned” the character of the plaintiff in the case and were therefore subject to suit. Justice Powell stated in Letter Carriers: “Itis one thing to say that lawyers are shysters and that doctors are quacks, but it is quite another matter — indeed, it is libelous per se — to publish that lawyer Jones is a shyster or that Dr. Smith is a quack.” Also see Cianci v. New Times Pub. Co., 639 F.2d 54, 62 (2d Cir 1980). The logic underlying the privilege is that an opinion can never be objectively proved true or false; and a privilege is given to the opinion provided the facts supporting the opinions are set forth. Buckley v. Littell, 539 F.2d 882, 893 (2nd Cir 1976), Anton, supra at p. 499. Where the facts underlying the opinion are set forth in the article, the opinion is afforded a privilege because each reader may draw his own conclusion to support or challenge the opinion. Id. Also see Rinaldi v. Holt, Rinehart & Winston, Inc., 366 N.E.2d at 1306 (1976). There is an extensive discussion considering the fact/opinion distinctions in Henry v. Halliburton, supra at page 787-789, where it was held that it was essential to examine the totality of the circumstances to determine whether an ordinary reader would have treated a statement as an opinion. Id, p. 788. 2. One of the exceptions to the privilege is where a defamatory statement implies the allegation of undisclosed defamatory facts as the basis for the opinion. Restatement Second Torts, Sec. 566; — A-69 — Cuba’s United Ready Mix v. Bock Concrete, 785 S.W.2d 649, 651 (Mo. App. 1990); /verson v. Crow, 639 S.W.2d 118, 119 (Mo. App. 1982); Henry v. Halliburton, supra; Anton, supra. Where a statement indicates that the speaker knew facts estab- lishing the defamatory statement, it is actionable defamation. Id.; Cianci, supra, 639 F.2d at 63. Where the statement of opinion implies undisclosed facts on which the opinion is based, then the listener can not evaluate the defamatory language since no basis for the statement has been disclosed. 53 C.J.S. Libel and Slander, Sec. 12, p 46. The Restatement provides an illustration of a mixed fact/ opinion statement as follows: 3. A writes to B about his neighbor C: “I think he must be an alcoholic.” A jury might find that this was not just an expression of opinion, but that it implied that A knew undisclosed facts that would justify this opinion. Id., Sec. 556 at 174. A’s opinion above is not privileged because “the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts”. Id, 175. “This type opinion, while an opinion in form or context, is apparently based on facts . . . that have not been stated . . . [and] gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant.” Id. at 172. Such an opinion is not privileged. Falls v. Sporting News Pub. Co., 834 F.2d 611, 615-616 (6th Cir. 1987). Respondent’s statements here do not provide the facts from which the television viewers could draw their own conclusions to support or challenge his opinions. The thousands of viewers could not understand from the facts asserted 1) how Judge Karohl failed to follow the “Supreme Court of the land’, 2) how there was a distortion of the statute, 3) what purpose the judge had to arrive at a decision that he personally liked, 4) why the — A-70 — judge made up his mind before he heard the case, and 5) what dishonest reasons the judge had to do such things. Thus no privilege attaches under the authorities discussed. 3. In discussion of the defamatory nature of Respondent’s statements, supra, it was pointed out that false imputation of criminal conduct is defamatory. However, the Missouri Su- preme Court has further held that language which suggests specific criminal conduct would constitute a statement of fact rather than a statement of opinion. Henry v. Halliburton, supra, 690 S.W.2d at 790. 53 C.J.S. Libel and Slander, Sec. 12, p. 47. There is acritical distinction between opinions which attribute improper motives to a public officer, and accusations, in what- ever form, that an individual has committed a crime or is personally dishonest. Gregory v. McDonnell Douglas Corp., 552 P. 2d 425 (1976). There is no First Amendment protection enfolding false charges of criminal behavior. Id. The Court in Cianci also declared that the Gertz — Letter Carriers rules protecting “pure opinions” do not cover charges which could reasonably be understood as imputing specific criminal or other wrongful ac [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2697%3A2. Public record. Not legal advice.