A Florida attorney has filed a lawsuit against the state bar because he says it’s trying to squelch his free speech.
After an “informal inquiry” from the Florida Bar regarding statements attributed to him in the press, Orlando-based attorney Steven G. Mason filed a federal lawsuit on April 26. He is challenging, on First Amendment grounds, the constitutionality of two Florida Bar rules.
Mason also seeks a declaratory judgment that the statements he made to the news media are protected under the U.S. Constitution.
Mason filed the lawsuit after receiving an April 14 letter from the state bar, the agency that regulates attorneys in Florida by authority from the Florida Supreme Court. The letter, from bar counsel Frances R. Brown-Lewis, said Mason needed to respond to the bar within 15 days with respect to whether statements attributed to Mason in The Orlando Sentinel “are true, complete and correct and whether said statements are a violation of Rules 4-8.2(a) and 4-8.4(d).”
Mason responded with his lawsuit, Mason v. Florida Bar, filed in Orlando.
The first rule Mason challenged, Rule 4-8.2(a), reads:
“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 of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire or candidate for election or appointment to judicial or legal office.”
The second, Rule 4-8.4(d), provides that a lawyer shall not:
“engage in conduct in connection with the practice of law or in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socio-economic status, employment, or physical characteristics.”
With respect to Rule 4-8.2(a), Mason contends the law is both vague and overbroad. “The rules prevent comments and criticisms concerning any public official, judges, etc. (e.g., a ‘public legal officer’) and directly impinge upon free speech including unabashed discussions and frank opinions of lawyers either in a private or public forum,” he said in his lawsuit.
Mason’s complaint also attacks Rule 4-8.4(d) on its face, particularly the clause “on any basis.”
“These rules potentially control and curb a lawyer’s speech across the universe of possible comments,” Mason told the First Amendment Center Online. “‘On any basis’ obviously means on any basis and that, in and of itself, violates the First Amendment. When I leave the courthouse, I am absolutely entitled to speak on any subject and offer my opinion even if it addresses a judge.”
Attached to the bar’s April 14 letter to Mason were copies of two newspaper articles that apparently provoked the inquiry.
In a Feb. 2, 2005, Orlando Sentinel story, Mason was quoted as saying: “Unfortunately, this jury got absolutely buffaloed. They got snookered, beyond snookered. I would like to see their faces when they find out another jury in this courthouse found these people not guilty of every single charge based on the exact same facts.”
The news story referred to a civil-forfeiture case brought against a former bingo-hall operator and two of his corporations. A jury found that Mason’s client had engaged in racketeering activities and could be subject to the forfeiture laws.
In an April 2, 2005, Sentinel story headlined “Special election can proceed, judge says,” Mason said: “It’s an illegal election. We’ll find some judges on the appellate court who aren’t afraid of the political heat, and we’re going to win this thing.”
These comments pertained to a different case, Orange County Democratic Executive Committee v. City of Orlando, in which Mason represented a local Democratic Party committee that objected to a special election for Orlando mayor after Florida Gov. Jeb Bush suspended Democratic Mayor Buddy Dyer. (The case became moot after election-law charges were dropped against Dyer and he was reinstated.)
The Florida Bar has not filed an answer to Mason’s complaint. Mason, however, has filed more legal papers, including a “motion to disqualify” the Florida Bar from instigating an inquiry into whether Mason violated its rules. Mason and his attorney, Jerome Hennigan, allege that the bar violated its own Rule 3-7.3(c), which requires that “All complaints, except those initiated by The Florida Bar, shall be in writing and under oath.”
Mason says he and his attorney learned from the Florida Bar that the inquiry began after telephone complaints from two judges. Mason’s “motion to disqualify” says that “it is clear in this case that the Bar did not timely disclose to Mr. Mason that this inquiry was in fact initiated by two local judges in violation of Rule 3-7.3(c) and that this information only came to light after significant prodding on the part of Mr. Mason and [Hennigan].”
Mason describes the case so far as “a soap opera with a very powerful institution.”
This is not the first time that Mason has tangled with the Florida Bar. He sued the bar in 1998 after it prohibited him from running a truthful ad saying he had received the highest rating from the Martindale-Hubbell legal directory. In 2000, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled in Mason v. Florida Bar that the bar violated Mason’s commercial-speech rights when it refused his ad.
Mason vows he’s prepared to take his current case all the way to the U.S. Supreme Court, if need be: “My entire professional career I have been fighting for the rights of a lot of people, many of them underdogs to the establishment. It would be hypocritical of me to bow out and take the easy way. If necessary, I’ll knock on the door of Justice Ginsburg.”