Censored by the Bar | Editorial

It is an offense against the people of Florida for Gov. Ron DeSantis’ appointments to have turned the state Supreme Court into a predictable fountain of right-wing opinions. The latest is its April 1 decision upholding the sweeping new ban on abortion.

What’s more worrisome, as we’ve said before, is the voluminous silence from the state’s leading lawyers. They should know and fear the most about what happens to democratic government when courts become echo chambers of governors, presidents or parliaments. Consider Russia, China, Iran, Myanmar and other dictatorships.

Israeli citizens took to the streets, week after week, to protect their supreme court.

The Florida situation is worse than we knew.

Silenced opposition

George Felos, a Dunedin lawyer with particular expertise in privacy, the constitutional right that the court eviscerated last month, tried to speak up.

He wrote a letter to the Florida Bar News, the monthly newspaper issued by the Florida Bar, finding fault not only in how the court glibly abandoned privacy but also with how several justices injected personal beliefs into the case. While narrowly approving an abortion rights initiative for inclusion on the Nov. 5 ballot, several justices hinted at eventually foiling it by declaring fetal personhood.

The Sun Sentinel printed a shortened version of that letter on this page Friday.

The Florida Bar News’ editor, Mark Killian, refused to print Felos’ letter. He also said it would not be acceptable as a paid advertisement.

“While we value different perspectives and constructive criticism,” he emailed Felos, “your letter contains personal attacks on sitting justices by impugning their motives by name.”

That was censorship.

Are Florida’s justices so high and mighty that they can’t be criticized? Are their motives beyond questioning? Why have retention elections every six years if those who know the most about the justices and the law aren’t free to say what they know?

No criticism by name

We asked Killian to answer some questions about his decision. He didn’t reply, so we asked the Bar’s lead spokesperson, Jennifer Krell Davis, whether the agency has any policies, overt or implicit, to discourage criticism of the court.

“In his letter,” she replied, “Mr. Felos directly criticizes the justices by name, saying they have allowed personal beliefs to sway their decisions. We consider that a personal attack on their integrity as jurists.”

Apart from his letter, she said, in answer to another question, “The Florida Bar News does not have any record of receiving any letter submissions criticizing any specific Supreme Court decision or justice since January 2019.”

That’s when three retirements enabled DeSantis to begin radicalizing the court. Florida’s 110,000 lawyers have gone silent in the only publication they all read.

From one angle, it’s easy to see why. The Bar officials’ objections closely track language in Florida’s Code of Professional Responsibility (Rule 4-8.2), which inhibits criticism of judges. Lawyers can be reprimanded, suspended or even disbarred for violating the code — and it’s the Supreme Court that decides their fate.

But the rule that hangs over their head is not an absolute prohibition. Here’s what it says, with some key words italicized: “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…”

That allows for judgment calls. If Felos or any other lawyers are willing to stand behind what they want to say about a judge’s qualifications and conduct, they should be allowed to express it. And the Bar’s newspaper should print it.

The reasons given Felos could conceivably lead to disbarring a lawyer for expressing the well-founded and widely held opinion that U.S. Supreme Court Justice Clarence Thomas is unethical.

Consider the source

The Bar’s timidity owes to it being an agency of the Supreme Court itself.

That derives from the Supreme Court’s constitutional powers to adopt rules for the courts and to license and discipline lawyers. Bar membership has been mandatory for all lawyers since 1950.

The profession would rather be under the court than the Legislature, a threat that lawmakers have made on occasion to keep the lawyers quiet.

Threat of legislative control muted the Bar’s opposition to a 2001 law that weakened its influence and allowed the governor to appoint all nine members of each Judicial Nominating Commission. That effectively eliminated judicial independence, which is essential to the honesty of the courts.

With the Bar being a dutiful agency of the court, there’s no other statewide entity to speak out for the independence of the judiciary when it is so seriously threatened — as it was in 2001, and as it is now. Those who still care about that should consider organizing an independent voice.

We don’t recommend putting the Bar under the Legislature’s governance. That would be no better, and quite likely worse.

But there surely need to be more lawyers speaking out like George Felos.

The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writer Martin Dyckman and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.