Earlier this month, the Sixth Circuit Court of Appeals ruled that the Kentucky Bar Association chilled attorney John M. Berry Jr.’s right to free speech when it warned him that he could be punished for criticizing the integrity of a behind-closed-doors legislative ethics proceeding.
The case arose after Berry attended a public session of the Kentucky Legislative Ethics Commission regarding the alleged fund-raising violations by Senate President David Williams. Berry was upset with how the Commission closed the session to the public but allowed Williams to remain. In response, Berry drafted a letter complaining that the Commission’s procedures would lead the public to think that the “deck was stacked.” The Commission subsequently remitted to the letter to the Kentucky Bar Association Inquiry Commission, which investigated the matter. The Inquiry Commission issued Berry a letter warning him that his conduct violated Kentucky’s Rule of Professional Conduct 8.2(a), which provides that “[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.” The Inquiry Commission further warned him to refrain from similar conduct in the future.
After exhausting his state law remedies, Berry filed a lawsuit in federal court claiming that Rule 8.2(a) was facially unconstitutional and unconstitutional as applied to him. Berry alleged that he wanted to make further statements about his opinions on the prior legislative ethics proceeding and that the Inquiry Commission warning against further speech chilled his First Amendment rights. The district court dismissed Berry’s case. On appeal, the Sixth Circuit reversed and ruled that Rule 8.2(a) was unconstitutional as applied to Berry. The court held that Berry’s speech was constitutionally protected because everything he said was either true or protected opinion. The court noted that it was “especially problematic” for Kentucky to encroach on the free speech rights of attorneys because they are “often the best situated to criticize government abuse.”