By: Shannon Burr
A recent ruling by the Louisiana Supreme Court provides guidance as whether a lawyer’s postings on social media pertaining to an ongoing judicial proceeding did fall within the category of First Amendment Free Speech. Specifically, the Louisiana Supreme Court ruled in 2015 that an attorney’s online and social media activity violated numerous Rules of Professional Conduct and was not free speech protected by the First Amendment.[1] Joyce Nanine McCool, in what she proclaimed was an effort to protect two young girls from alleged abuse by their father, engaged in a social media campaign including Twitter, change.org, her blog site and online articles she authored criticizing the judges and expressing her opinions about cases pending before courts in Mississippi and Louisiana.
McCool then drafted an online petition, encouraged the public to sign the petition and posted contact information for the judges’ offices and the Louisiana Supreme Court. In addition, she posted comments encouraging others to contact the judges and the Court about the cases. McCool also used her personal Twitter account to post numerous messages criticizing the judges and encouraging the public to act. As a result, both judges received numerous communication from the public regarding the cases, and eventually recused themselves from the pending cases as well as others involving McCool.
The Louisiana Supreme Court held that McCool’s conduct fell into three categories 1) improper ex parte communications; 2) dissemination of false and misleading information; and 3) conduct prejudicial to the administration of justice. The court held that use of social media and the internet to “marshal public opinion against these judges and attention from this Court” violated Rules 3.5(a) and (b) and 8.4(a) of the Rules of Professional Conduct.[2] Rule 3.5 prohibits a lawyer from seeking to influence a judge, . . .or other official by means prohibited by law and to communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order. Rule 8.4 (a) holds that it is professional misconduct for a lawyer to violate the RPC or knowingly assist or induce another to do so, or do so through the acts of another. The Court also found that McCool violated Rule 8.4(c) prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, largely due to the clear and admitted “mistakes” in her statement of the facts.[3] Finally the Court held that McCool had violated Rule 8.4 (d) prohibiting a lawyer from engaging in conduct prejudicial to the administration of justice.
McCool argued that her statements were free speech protected by the First Amendment. The Court held that attorneys in pending cases are subject to ethical restrictions on free speech not applicable to ordinary citizens.[4] The Court held that “By holding the privilege of a law license, respondent, along with all members of the bar, is expected to act accordingly. . . . Respondent in this instance ‘is not merely a person and not even merely a lawyer. [She] is an intimate and trusted and essential part of the machinery of justice, an officer of the court’ in the most compelling sense.”[5] The court ultimately found that the online and social media campaign was intended to inflame the public sensibility and influence the Court and was not protected free speech.
For further discussions of the effect of social media on judicial proceedings, see State v. Madden, 2014 WL 931031, (not reported) concerning a criminal judge’s Facebook activity noting that in spite of privacy settings, “[I]n today’s world, posting information to Facebook is the very definition of making it public.”[6] See also, United States v. Bowen, 969 F.Supp. 2d 546, 625-27 (E.D. La. 2013), granting motion for new trial on the grounds of prosecutors’ misconduct in posting anonymous comments regarding the trial on nola.com; Domville v. State, 103 So.3d 184, 185-86 (Fla Dist. Ct. App. 2012), rehearing denied, 125 So.3d 178, (Fla.App. 4 Dist., Jan. 16, 2013), Judge disqualified after defendant alleged that the prosecutor handling the case and the trial judge are Facebook “friends.” This relationship caused Domville to believe that the judge could not “be fair and impartial.”[7]
[1] In Re McCool, 172 So.3d 1058 (2015).
[2] Id. at 1069. The Court also held that when the petition was printed and faxed to the court and judges’ offices, with McCool as the first signatory, it was a direct communication with the court.
[3] The evidence Judge Gambrell was accused of “refusing to hear” was never offered into evidence.
[4] Id. at 1076, citing Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991).
[5] Id. at 1077, quoting Gentile, supra.