The nice folks at the Broward County Courthouse do not seem to be fond of lawyer Bill Gelin, as he doesn’t always say nice things about them.
Since 2006, attorney and courthouse muckraker William “Bill” Gelin has been shaking up the judiciary on his popular site, JAA Blog. Whether sounding off about potential corruption and racism in the courthouse ruling class, or even its work habits, the 46-year-old Oakland Park attorney hasn’t held back his opinions. But now it looks like his criticisms are boomeranging right back.
In the last few months, the attorney has been fielding heat from the Florida Bar. The statewide group has opened a complaint investigation into the blogger. But the organization won’t tell Gelin why the complaint has been filed or at whose behest.
There’s a bit of a due process problem here, if Gelin is to be able to defend himself, although investigating a complaint is different from prosecuting a complaint. It’s unclear whether the Florida Bar is still investigating in order to determine whether to take action, or taking action. If the former, then its non-disclosure isn’t a problem. If the latter, then it’s a big problem.
Is Gelin a muckraker or a whistleblower? Beats me. That’s a matter of perspective, and irrelevant for the purposes of this post.* By seeking admission to the bar, all lawyers knowingly and willingly accede to certain limits on our speech in order to comply with the rules of professional conduct. It’s one of the reasons we can’t call the judge an asshole in the well. We just need to live with that. Plus, there are other ways to say it, with all due respect.
But as good or bad as Bill Gelin may be, and without regard to the limits he assumed by his admission to the bar even when he writes on his blog, they do not extend to his commenters. The Florida Bar, however, fails to draw that distinction.
The dispute between Broward Clerk of Courts Brenda Forman and lawyer Bill Gelin is exploding into a First Amendment battle over what lawyers can say online and whether they should be able to leave anonymous, inflammatory comments without fear that their identities will be disclosed.
The Florida Bar last month ordered Gelin to reveal the identities of people who left dozens of anonymous comments on JAABlog, a website that describes the ins and outs of Broward’s legal community.
It’s one thing for the bar to go after Gelin, but another entirely to go after people who leave anon (or pseudonymous, for you pedants) comments. If the comments were unprotected speech in themselves, and the identities of their authors were sought based upon the individual comments violation of law, then there would be one First Amendment discussion. Unprotected speech, such as defamation, enjoys no protection.
The speech at issue here, however, isn’t alleged to defame Broward Clerk of Courts Brenda Forman.
The Bar complaint remains under investigation. “Just a cursory scroll through the comments on his blog clearly demonstrate that the comments are more often than not vulgar, racist and just plain mean-spirited,” Forman’s attorney wrote in one exchange with Florida Bar investigators.
Vulgar? Racist? Just plain mean-spirited? So what? None of these descriptions suggest speech that doesn’t enjoy full First Amendment protection, unpleasant for Forman as it may be. One would expect that no judge with even a modest grasp of the First Amendment would sign off on such a subpoena, or if issued by an attorney without prior approval, enforce it.
But this subpoena doesn’t come from a judge, but from the Florida Bar. While the story lacks sufficient detail to be certain, it would appear that the bar’s grievance counsel issued the order to Gelin to reveal the identities of these “plain mean” commenters, not to mention vulgar and racist. The exercise of administrative authority of lawyers gives the bar’s demand a certain legitimacy, at least as far as lawyers are concerned.
This puts Gelin in the awkward position, as a lawyer who has willingly subjected himself to the bar’s authority, to comply, as would appear to be his duty to the administrative authority that controls his ability to practice law and, presumably, his livelihood or take the bastards to court to stop them.
Gelin’s lawyer, John Howes, said he doesn’t think the Bar has the authority to file the subpoena. He said Forman’s complaint originally was about Gelin trying to take her photo against her will in courthouse hallways. Howes said that has nothing to do with unflattering comments left on JAABlog. “There might be a rule allowing them to subpoena certain records, but not this,” Howes said.
That the identities of commenters are irrelevant to Forman’s complaint is one important point, but even if they were entirely relevant, so what? In the absence of a sufficient allegation and showing that the content was unprotected speech, their right to anonymous expression under the First Amendment more than sufficiently precludes the bar’s effort to compel disclosure.
Of course, for Gelin to stop the subpoenas, one of two things can happen. He can just refuse to comply, putting the onus on the bar to do something about it. Because it’s the Florida Bar, they can impose punishment on Gelin for his failure to cooperate and comply, up to and including disbarment. But that won’t get them the identities, just their pound of flesh from Gelin. And it would shift the burden to Gelin to fight their actions.
The alternative is for Gelin to go to court to quash the subpoena, which means he would have to prevail upon a judge to agree with him. There’s a possibility that Gelin doesn’t have a lot of friends at the courthouse these days, but judges should rise above such pettiness and do law, even for someone they may not want to invite to dinner.
Either way, the Florida Bar’s ability to beat up Bill Gelin, or not, has nothing to do with any commenter at his blog, who enjoys an independent First Amendment right to express as vulgar a view as they like against Brenda Forman and, perhaps now, the Florida Bar itself. As for Gelin, he’s going to make a run for it.
Gelin announced on the blog earlier this month that he is running to become a future president of the Florida Bar.
If the Florida Bar really wants to punish Gelin, they should elect him.
*If you have a thought on this issue, keep it to yourself. This will not be turned into a referendum on Bill Gelin.