Comments on: Federal court: Fieger can call judges Nazis

By: Fla. lawyer: I’ve got every right to call judge an “evil, unfair witch”

Mon, 11 Aug 2008 13:02:12 +0000

[…] provoking recusal. For an extreme instance, see the Geoffrey Fieger episode recounted here, here, here, and here. More on what lawyers can say about judges from Bruce Campbell (Campbell & Chadwick) […]

By: Anonymous Attorney

Anonymous Attorney — Mon, 10 Sep 2007 16:21:03 +0000

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.

By: David Nieporent

David Nieporent — Fri, 07 Sep 2007 15:25:19 +0000

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?

By: Ted

Ted — Fri, 07 Sep 2007 14:58:59 +0000

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.

By: Robert E. Edick

Robert E. Edick — Fri, 07 Sep 2007 13:22:36 +0000

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.