(CN) – The 6th Circuit held that attorney Geoffrey Nels Fieger lacks standing to challenge the Michigan Rules of Professional Conduct, which he was charged with violating after making vulgar comments about Michigan judges on his radio show.
Fieger, upset that the Michigan Court of Appeals reversed a $15 million judgment for one of his clients, aired his grievances on his then-daily radio program in southeast Michigan. “I declare war on you,” he said, referring to the three judges who ruled against his client. “You declare it on me, I declare it on you. Kiss my ass, too.”
Two days later, he called the judges the “three jackasses of the Court of Appeals” on his show. When someone else used the word “innuendo,” he stated: “I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist.” He then likened the judges to Adolf Hitler, Hitler’s wife and a Nazi propagandist.
The Attorney Grievance Commission filed a formal complaint against Fieger, claiming he violated the Michigan Rules of Professional Conduct.
Fieger claimed the rules were inapplicable, because the remarks were made outside the courtroom and thus were protected by the First Amendment.
The Attorney Discipline Board issued three opinions, with the lead opinion siding with Fieger.
However, the Michigan Supreme Court overturned the board’s decision, saying the rules were not meant to silence or censor, but to ban “undignified,” “discourteous” and “disrespectful” conduct or remarks.
Though the First Amendment traditionally protects criticism of judges, the state Supreme Court ruled that Fieger’s remarks about participants in a pending case were so unambiguously “vulgar and crude” that they didn’t merit protection.
While that decision was pending, Fieger and his attorney, Richard Steinberg, filed a declaratory judgment action challenging the courtesy and civility rules.
The federal court in Michigan agreed with the plaintiffs that the rules are unconstitutionally vague and overly broad.
The Michigan Supreme Court and four of its justices appealed.
Overturning the lower court’s decision, the Cincinnati-based federal appeals court said Fieger failed to show how the rules injured him or “chilled” any vulgar remarks he might make in the future.
“Fieger invites us to void the rules he violated based on sheer speculation of future discipline,” Judge Griffin wrote. “We decline the invitation.”
Griffin added: “We hold that Fieger and Steinberg lack standing because they have failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand. Moreover, plaintiffs have not articulated, with any degree of specificity, their intended speech and conduct and have not sufficiently established a threat of future sanction under the narrow construction of the challenged provisions by the Michigan Supreme Court. For the same reasons, we conclude that the district court abused its discretion in entering declaratory relief.”
Judge Merritt dissented, saying “[n]o other jurisdiction places such potentially sweeping restrictions on attorney speech.”