Brooke Lynnette Girley, et al. v. The Florida Bar, et al.

In separate proceedings consolidated on review, the state high court affirmed 30-day suspensions of two attorneys, Reverend Girley and Professor Girley (father and daughter), due to extrajudicial statements criticizing a judge and the courts on matters of public concern. These statements, in part, were delivered in a religious forum, where the two attorneys, one of whom is a pastor, practice their sincerely held religious beliefs and followed a directed verdict by a trial judge reversing a jury award of $2.75 million to Reverend Girley’s client, a physician of African heritage. This extraordinary measure included applying a burdenshifting “objective reasonableness” rule (App.11a, 31a, 46a), and upholding protective orders that barred limited, non-deliberative examination of the complaining judge. Accordingly, before this Court for decision are the questions:

1. Whether, consistent with the First Amendment, a State may impose professional discipline for out-ofcourt criticism of a judge and the courts without clear and convincing proof that the attorney made a false statement of fact with knowledge of falsity or serious doubts (actual malice), by instead requiring the attorney to establish an “objectively reasonable factual basis” for the criticism, including when the speech occurs outside court and, in part, in a religious setting in a jurisdiction where the religious freedom statute expressly exempts judicial review of the statements and the court is comprised of elected judges.

2. Whether, before imposing speech-based professional discipline and/or orders compelling destruction or total surrender to the adverse witness of deposition