OC lawyer proposes law calling for gays to be put to death by bullets to the head.

Yes, I was over-broad in including all protected speech. However,the rules regarding criticism of judges is a limited exception that typically applies only in cases in which the attorney is or was party to a case in front of said judge, and the California rule applies to false statements affecting an ongoing adjudicatory proceeding. All of the cases you cite fall within this limited exception, and there's no reason to believe that statements outside of it can be the basis for disbarment. Further, even within the judicial criticism rules actionable statements are typically limited to statements that are demonstrably false:

"It follows that statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they “imply a false assertion of fact.” See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990); Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983); Restatement (Second) of Torts § 566 (1977) (statement of opinion actionable “only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion”). STANDING COMMITTEE ON DISCIPLINE v. YAGMAN NO. CV 94-6448 ER, JGD, DWW. 856 F.Supp. 1384 (1994).

These are inapposite to this lawyer in question and his proposed legislation.

There's no basis in that for attempting to disbar an attorney for making what is basically a political statement on a matter of public interest, no matter how deplorable that statement may be. Any such rule would be a content based restriction and would face strict scrutiny, as noted by Chemerinsky (who also argues against the restrictions on lawyer speech - "In other words, the New York Times v. Sullivan that limits recovery for defamation in suits by public officials or public figures, should be used as the only restriction on speech about pending cases").

None of the cases you cite refer to a statement made outside of the context of a judicial proceeding or having a prejudicial effect on a judicial proceeding. More importantly, none of them refer to a political statement as the basis for disbarment under moral character or fitness, much less allegiance to the constitution.

Further, from a strictly policy perspective, it is not the business of the state bar to regulate the political opinions of its members, even were the state bar to have such authority. Why isn't it a better solution to address this guy with more speech, condemning him publicly and discouraging others from retaining his attorney services? Do we really want the state bar making decisions on what are or are not acceptable political statements? Do you trust the state to limit its actions to extremely egregious cases like this?

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