Court Affirms Lawyer’s Right to Assail Judge : Free speech: Appellate jurists lift suspension of Stephen Yagman. They say he was wrongly disciplined for calling a judge dishonest and anti-Semitic, among other things.

A federal appeals court in San Francisco on Tuesday reversed a decision that suspended Venice civil rights lawyer Stephen Yagman from practicing in the Los Angeles federal court for two years for severely criticizing a Los Angeles federal judge.

The appeals court ruled that the suspension violated Yagman’s 1st Amendment rights.

New York University law professor Stephen Gillers, who specializes in legal ethics and lawyer discipline issues, called Judge Alex Kozinski’s ruling significant.

“Judge Kozinski’s opinion is more protective of the free speech rights of lawyers than any other appellate opinion in the last 15 years,” Gillers said.

The closely watched case stemmed from Yagman’s criticism of U.S. District Judge William D. Keller, whom Yagman called anti-Semitic, “dishonest . . . a bully and one of the worst judges in the United States.”

A special panel of federal trial judges in Los Angeles ruled in July that Yagman’s statements violated local court rules by “impugning the integrity of the court, and by interfering with the random assignment of cases.”

But the appeals court disagreed. “Because Yagman’s statements do not pose a clear and present danger to the proper functioning of the courts, we conclude that the district court erred in sanctioning Yagman for interfering with the administration of justice,” wrote Kozinski for the majority.

Despite the reversal, the opinion does not hold that a lawyer can say anything he wants about a judge without fear of sanction.

“Though attorneys can play an important role in exposing problems with the judicial system, false statements impugning the integrity of a judge erode public confidence without serving to publicize problems that justifiably deserve attention,” Kozinski wrote.

But he added that “statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the 1st Amendment unless they ‘imply a false assertion of fact.’ ”

In 1993, Yagman told the Daily Journal, a Los Angeles legal newspaper, that Keller “has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-Semitism.”

Kozinski said this statement contained “both an assertion of fact [the sanctioning of three Jewish lawyers] and an expression of opinion.”

He said that if it had been proven that Yagman, Kenner or Manes were not sanctioned by Keller or were not Jewish, this assertion might have formed the basis for discipline. But because there was no challenge to that factual assertion, the appeals court assumed that it was true. Kozinski wrote that “a statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.” Therefore the anti-Semitism remark is protected by the 1st Amendment, he found.

Similarly, Kozinski wrote that Yagman’s charge that Keller was “dishonest” was protected speech because it was part of “a string of colorful adjectives [including ‘buffoon,’ ‘ignorant’ and ‘right-wing fanatic’] Yagman used to convey the low esteem in which he held Judge Keller.”

Those words were part of a letter Yagman wrote to a publisher that rates judges. Viewed in context, Kozinski said, “the word dishonest cannot reasonably be construed as suggesting that Keller had committed specific illegal acts.” Therefore, it was protected by the 1st Amendment as a statement of “rhetorical hyperbole,” Kozinski wrote.

Kozinski’s opinion describes Yagman’s criticism of Keller as “harsh and intemperate and in no way to be condoned.” But it cites several precedents that judges, particularly federal judges who have lifetime tenure, should expect and be able to withstand stiff criticism. In particular, Kozinski quoted a 1941 decision by Supreme Court Justice Hugo Black in this regard:

“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 American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”

Appeals Court Judge David Thompson joined in the majority opinion. Appellate Judge Charles Wiggins issued a one-sentence dissent, but offered no reasons for his opinion.

Tuesday’s ruling also rejected the district court’s finding that Yagman had criticized Keller, a conservative judge, in an attempt to force Keller to recuse himself from hearing Yagman’s cases. The appeals court noted that Keller was under no obligation to stop hearing Yagman’s cases because of the criticism.

“It has long been established . . . that a party cannot force a judge to recuse himself by engaging in personal attacks on the judge,” Kozinski wrote.

Yagman, who is considered perhaps the most outspoken lawyer in Los Angeles and one of a handful who will publicly criticize a federal judge, said he was pleased by the decision, but his response was uncharacteristically temperate.

“I am very fortunate to live in America, where there is freedom of expression,” Yagman said. “As a realist who believes in both freedom and responsibility . . . I am surprised and grateful that I did not lose. Lest no one believe otherwise, my expression has been chilled and will continue to be chilled by what has occurred and I shall temper my speech in the future. I apologize to Judge Keller for my comments about him.”

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Asked why he was apologizing now, Yagman said, “It’s an appropriate time to do it.” The State Bar is still considering charges against Yagman, based on the same remarks.

Keller declined to comment, as did Los Angeles lawyer Graham E. Berry, who represented a special federal court disciplinary committee that lodged the charges against Yagman.

Legal expert Gillers said the Yagman brouhaha is destined for the casebooks.

“While I was among those who were offended by some of Mr. Yagman’s comments, I recognize him as a leading advocate for victims of police abuse and hope his ordeal does not chill his ardor even one degree,” he said.

The decision was praised by civil libertarians, including two Los Angeles lawyers who co-authored a friend-of-the-court brief supporting Yagman on behalf of 150 Los Angeles lawyers.

“It’s a wonderful vindication of the 1st Amendment rights of lawyers in a very controversial context,” attorney Paul Hoffman said. “I think it’s a very courageous decision. Essentially, what Judge Kozinski has said is even when a lawyer engages in what most judges would consider unfair criticism of their brethren, the 1st Amendment shields the lawyer from punishment and guarantees free expression for everyone.”

Douglas E. Mirell, co-author of the brief, lauded the ruling as “thoughtful, very carefully drafted and well reasoned.”

Mirell added: “It is by no means an invitation to engage in gratuitous or unsupported attacks upon the federal judiciary. But it properly accords substantial breathing room to speech which is critical of federal court judges, even when that criticism is harsh and perhaps even intemperate.”