In In re Sawyer, 360 U.S. 622 (1959), the Supreme Court reversed a Ninth Circuit Court of Appeal’s suspension of an attorney who had criticized the court handling her case as well as the court proceedings. The attorney had argued that her speech was protected by the First Amendment.

Hawaii attorney Harriet Bouslog Sawyer had been suspended for criticizing the court that handled the criminal trial of her clients who were charged with conspiracy under the Smith Act of 1940. Sawyer had described the trial as “horrible and shocking” and otherwise criticized the proceedings. Lower courts had found that Sawyer had violated the Canons of Ethics of the American Bar Association.

Five justices agreed that the evidence did not establish that Sawyer had impugned the integrity of the presiding judge or reflected on his impartiality and fairness. Justice William J. Brennan Jr. wrote the lead opinion questioning the adequacy of the evidence and observing that the case might be different had the defendant been accused of obstructing justice. He observed that accounts of what Sawyer had said varied greatly but that, in any event, “lawyers are free to criticize the state of the law,” not only to professional but also to lay audiences. Although Sawyer had criticized the proceedings, she had chiefly focused on the state of the law and had not mentioned the trial judge by name. Moreover, the fact that appellate courts reverse lower court judgments regularly indicates that such criticism is no disgrace. As to charges that Sawyer’s interview of a juror after the trial was improper, Brennan suggested that the law in Hawaii had been applied inconsistently and that there were special reasons that she might have done so in this case.

In a concurring opinion, Justice Hugo L. Black agreed that there was no specific Hawaii law authoring suspension of lawyers in this case, but he questioned whether such a law would be constitutional if it did exist. In a separate concurrence, Justice Potter Stewart indicated that he would not accept any implication that the First Amendment would be violated by even-handed discipline of attorneys.

Justice Felix Frankfurter authored a dissent joined by Justices Tom C. Clark, John Marshall Harlan II, and Charles E. Whittaker. Frankfurter believed that it was clear that Sawyer had attacked the proceedings and the judge in a case in which she was participating, and he found it largely irrelevant that she had not specifically been charged with obstruction of justice. He also found appeals to free speech to be unavailing: Acknowledging that “the free play of the human mind is an indispensable prerequisite of a free society” and that “freedom of thought is meaningless without freedom of expression,” he cited Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis to oppose erecting freedom of speech “into a dogma of absolute validity” or into an absolute. Especially during trials, defense attorneys, like prosecutors, had responsibilities not only to their clients but also to the law. Justice Clark wrote a separate dissent arguing that the Court was in no position to second-guess the courts that had already examined the facts of the case and concluded that Sawyer’s speech was an attack on the judge during an ongoing trial.

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