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Gag order against judge stricken in disciplinary matter

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  1. Prior Restraint

    NMU         WASHINGTON, D.C.         Prior Restraints         Feb 4, 2000    

Gag order against judge stricken in disciplinary matter

  • A judge faced with disciplinary proceedings was unconstitutionally restrained from speaking publicly about the proceedings.

Stating that First Amendment rights trumped a statutory confidentiality provision, a federal District Court judge struck the implementation of a statutory provision that had barred one of her colleagues from speaking publicly about a disciplinary action.

Washington, D.C., federal District Court Judge Colleen Kollar-Kotelly ruled in January that the imposition of a confidentiality clause against federal District Court Judge John McBryde in Dallas under the Judicial Conduct and Disability Act of 1980 operated as an impermissible prior restraint on his speech.

“This Court cannot disregard or diminish a judge’s interest in vindicating his reputation, and in announcing his perspective on the [disciplinary] proceedings to all who will listen,” Kollar-Kotelly wrote. “Indeed, this interest surely deserves the most heightened First Amendment protection. . . . The interest in shielding witnesses from publicity and encouraging complainants to come forward in the future, while legitimate, is insufficient to justify the restriction on Judge McBryde’s open and frank discussion of the proceedings once they have concluded and sanctions have been imposed.”

McBryde had complained about the confidentiality provision as part of a lawsuit he filed against the Fifth Circuit. In his suit, he complained about the penalties imposed against him by the circuit court. Kollar-Kotelly upheld all of the punishments imposed against McBryde.

The disciplinary proceedings arose out of an investigation by a committee of the Fifth Circuit’s Judicial Council into McBryde’s conduct toward numerous members of the bar who practiced before him. The investigation spanned two years and culminated in an 159-page report. In December1997, the Judicial Council publicly reprimanded McBryde for “conduct prejudicial to the effective administration of the business of the courts.” It ordered that no new cases be assigned to McBryde for one year and disqualified him from participating in any cases involving certain attorneys for three years.

Since the issuance of the 1997 order, McBryde sought to make public the entire record of these proceedings, arguing in a court filing that the gag order “precluded him from defending himself in public against the accusations made by the Council and the Review Committee.” McBryde had requested that two Fifth Circuit judges allow him to release the records, and when they denied his request, he had petitioned U.S. Supreme Court Chief Justice William H. Rehnquist. Rehnquist had responded with an authorization for disclosure of all portions of the record except “the identity of the witnesses in the proceedings.”

The statute’s confidentiality clause states that “all papers, documents, and records of proceedings related to investigations conducted under this subsection shall be confidential and shall not be disclosed by any person in any proceeding” without the authorization of the judge whose conduct is being investigated and the chief justice of the circuit.

McBryde argued that the statute’s confidentiality clause violated the First Amendment because it served as “a classic prior restraint disguised as a licensing scheme.” He had noted in court filings that the ambiguity surrounding the scope of the Chief Justice’s prohibition exemplifies the unconstitutionality of the statute’s confidentiality clause. That clause, he argued, unconstitutionally granted government officials and ultimately the Chief Justice of the U.S. Supreme Court unbridled discretion to decide whether and within what content-based parameters he may speak.

(McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of The Judicial Conference of The United States)


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