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Philip Leiser asks Supreme Court to strike down Virginia rule limiting criticism of judges
Summary
In oral argument Philip Leiser, representing himself, urged the court to declare Virginia Rule of Professional Conduct 8.2 facially unconstitutional for chilling criticism of judges; the Virginia State Bar urged the court to affirm a three-judge panel that suspended Leiser’s license, arguing his statements about judges were false or made with reckless disregard for the truth.
Self-represented litigant Philip Leiser told the Supreme Court that his challenge to Virginia Rule of Professional Conduct 8.2 is a broad First Amendment and due-process claim, and he asked the justices to declare the rule facially unconstitutional.
Leiser, who reserved three minutes for rebuttal, framed the case as “this court’s conduct in enacting and enforcing Virginia rule of professional conduct 8.2,” saying the rule chills protected criticism of government. He repeatedly invoked U.S. Supreme Court decisions, including New York Times v. Sullivan and Gentile, to argue that sanctions for speech require the government to meet specific legal and factual thresholds before punishing an attorney for criticism. “Judges are not entitled to any kind of special protection from criticism that every other government official is expected to endure,” Leiser said during rebuttal.
Counsel for the Virginia State Bar, Robert Claiborne, told the court that lawyers accept professional privileges and responsibilities, and he urged the justices to uphold the three-judge panel’s findings that Leiser violated Rule 8.2. "In violation of 8.2, Mr. Leiser made multiple statements that were either false or in reckless disregard as to their truth as to the integrity and qualifications of multiple judges," Claiborne said, arguing state precedents treat speech by participants in litigation differently from public or political speech.
Claiborne pointed to this court’s cases (including Anthony, Pillay and Jenkins) and to the distinction drawn in Nevada State Bar decisions to contend that participant speech can be subject to a reduced First Amendment standard. He listed judges and panels that, he said, were identifiable targets of Leiser’s statements and argued there was little evidentiary support for Leiser’s characterizations. Claiborne also said Leiser had an opportunity to present evidence before the three-judge panel and that a Fourteenth Amendment claim had been waived.
In rebuttal Leiser reiterated that the court should resolve the facial overbreadth challenge to Rule 8.2 before addressing any as-applied questions, said he stood by the statements in his pleadings, and asked the court to reverse the disciplinary order, vacate the suspension, and declare Rule 8.2 unconstitutional on its face. Arguments concluded and no ruling was issued from the bench at the hearing’s close.
