Federal court: Fieger can call judges Nazis

by David Nieporent on September 7, 2007

We’ve covered many of Michigan trial lawyer Geoffrey Fieger’s antics and legal troubles here on Overlawyered over the years; his most recent problems include being censured in Arizona and being criminally indicted for illegal campaign contributions.

But he may have managed to wriggle out of punishment for at least one of his shenanigans: his 1999 radio tirade in which he labelled as Nazis the judges who ruled against his client. He was sanctioned by the Michigan courts for this conduct, with the Michigan Supreme Court upholding the discipline against his first amendment challenge in Aug. 2006 (Yes, that’s seven years after the incident.)

But this week, a federal court bought Fieger’s first amendment argument, holding that the rules under which he was sanctioned were unconstitutional.

The rules say lawyers must treat everyone involved in the legal process with “courtesy and respect” and should “not engage in undignified or discourteous conduct” toward the bench.

In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said “the rules are unconstitutional on their face because they are both overly broad and vague.”

If we were snide, we might note that it could say something about Fieger that he couldn’t figure out that calling someone a Nazi is not dignified or respectful. We were amused at the Court’s reasoning for why Fieger had standing to challenge these rules:

The likelihood that Plaintiff Fieger may again say something negative about a Michigan court that could subject him to further punishment under the courtesy provisions is not the attenuated situation presented in Grendell. Plaintiff Fieger is a vocal, often harsh, and at times vulgar critic of Michigan’s judiciary.

You don’t say.

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{ 4 comments }

1 Robert E. Edick 09.07.07 at 9:22 am

Two important points about the decision. First, the judge explicitly conceded (as he had to) that the legitimacy of Fieger’s reprimand was not being challenged. The decision is prospective only. Second, there is a distinction between a declaratory judgment and an injunction. Although the court’s decision purports to declare that the courtesy rules “shall not be enforced,” a declaratory judgment does not necessarily prevent future prosecutions. In Steffel v Thompson, 415 US 452 (1974), a declaratory judgment was described as “persuasive, but not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt” (at 471). By way of disclosure, I am the disciplinary counsel who argued the Fieger appeal in the Michigan Supreme Court.

2 Ted 09.07.07 at 10:58 am

Fieger actually might have a point here. His comment was despicable and offensive, but I find it problematic if attorney disciplinary procedures are being used to cabin criticism of courts. Those are the kinds of laws that, in the wrong hands, can very easily be turned against the Overlawyereds of the world.

3 David Nieporent 09.07.07 at 11:25 am

Ted, as a matter of constitutional law and blogging self-interest you’re right.

But it’s still rather telling as far as Fieger goes. It’s not as if Fieger had been sanctioned for describing the judges as morons. He called them Nazis. Publicly. You’ve been a practicing litigator, and I still am; can you imagine in a gazillion years publicly doing that? What kind of lawyer does that?

4 Anonymous Attorney 09.10.07 at 12:21 pm

Given the frequency with which political opponents today are called Nazis, “just like Hitler,” racists and the like, I wonder if there are cases on the defamatory nature of these terms? They are not so much political descriptors as they are raw insults, meant to inflict maximum harm. Regardless of your political or racial views, it is true that the tenor of the times (political correctness) has raised these terms to levels that may indeed incur actual damages, such as the loss of employment. One might even argue that “Nazi” is defamatory per se. It doesn’t seem like you’d have trouble getting someone to testify to that. A group like the Southern Poverty Law Center routinely uses such terms to describe a wide variety of individuals and groups, from university professors to tattooed skinheads. I don’t know if they’ve ever called a judge a Nazi, but this might be reason for pause.

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