Ostrowski and Bailey Discipline Expose a Critical Problem with the System of Justice – the Suppression of Lawyers’ Free Speech Rights
My self-imposed task on this site, from its very inception, was to make the esoteric intricacies of the way the courts operate, and the way practice of law is conducted, understandable to those who have never even stepped foot in a courtroom.
I’ve written upwards of 100,000 words on this site, and linked documents to that many, and many more, words providing the contextual background for all the conclusions that I have made; yet still have had an abiding feeling that not enough has been said to make it clear and simple to understand, though I am sure that if anyone was able to take the time away from our busy lives to study what has been said here, the dynamics are pretty well laid out.
Hubert Gilroy, the disciplinary counsel appointed by United States District Judge Yvette Kane to oppose my reinstatement in the federal court, as outlined in my recent updates, did more to assist my effort here than I had done in all the prior things I had written – he opposed my reinstatement on what I have discussed on, and linked to, this site. See PCRLN/Ostrowski videos and this site generally.
I have engaged in political speech, i.e., words critical of the third branch of our government, and, as the briefs below clearly reveal, Mr, Gilroy will only be able to oppose my reinstatement on the mere fact alone that I have written and spoken these words. Every word I have written and uttered has been done so in good faith, and believing them all to be true. Further, I submit that every statement of fact I have made is demonstrably true, and that every inference is eminently reasonable.
My First Amendment rights are being trampled because I am (or was or will be) a lawyer who is being critical of the courts. The implications of that are grave for every person seeking access to a court expecting it to be fair and honest.
Don Bailey has been suspended by the Pennsylvania Supreme Court for 5 years, a total travesty that was only made possible through catastrophic deprivations of his due process rights, and the coverage of his disciplinary proceedings through this site should be studied and understood by anyone seriously interested in real judicial reform. See the Bailey due process violations/PCRLN coverage article. Don has been victimized because he did as a lawyer what I have done as a non-lawyer. Don is a hero, and his commitment and accomplishments should be celebrated, and will be someday, and we will continue to cover the progress of his case, as there surely is much more to be heard from Don.
In the brief that Don wrote on my behalf, and with my immense gratitude, he cited the words of our own United States Supreme Court in a landmark case called New York Times v. Sullivan, words that are very clear and simple for any American to understand:
The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. * * * Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form.
Don succinctly summarized the grave problems that these disciplinary proceedings have revealed as follows:
There is no greater threat to the security, stability, and political health of the United States of America and of our courts than the oppressive effect of judicial control of attorney licensure and discipline which is focused on suppressing, punishing, and deterring criticism from lawyers. ……. If Ostrowski had criticized the mob, he would never be challenged on those grounds. If he rudely and discourteously attacked the government of China he would be okay . If he engaged in criticisms of the legislature and of the President, not a word would be said to him. But while he is not even practicing law, if he expresses a critical opinion about public officials who happen to be judges, then he is denied the right to practice in our courts. The courts of the United States of America do not belong to our judges, they belong to the people. Judges have no more individual rights than other American citizens and should not be privileged such that an attorney is at risk for his right and opportunity to earn a living because according to the opinion of a jurist he has cast critical light upon the judiciary. The ultimate irony is that the very institution charged with the protection of individual rights in our country is clearly the most destructive of those ends. An oppressed attorney class does not serve the “public interest”. This court should assume the role of constructively confronting these deficiencies and free Mr. Ostrowski from the restraints he is suffering.
From my standpoint, in the brief that I wrote, I summarized my position on the application of this principle in my case as follows:
Petitioner understands that, perhaps, some of the hyperbole and/or rhetoric he used in his videos and other materials are not the most comfortable or convenient things for this Court to hear about the other judges of this Court, and his views of the system of justice, and the Middle District Courts, and no one is sorrier than Petitioner for having said, and felt the need to say, these things, but, again, they are all true and/or were made in good faith and with a reasonable belief of their truthfulness. Retired Justice Sandra Day O’Connor recently pointed out that Judges are fair game and must be open to criticism. The complement to criticism, of course, is to acknowledge and act on the criticisms in some open and honest form or fashion. All of this began with honest criticisms of members of the judiciary, mostly in the Middle District, and none of it was ever addressed. When Petitioner made these criticisms as a lawyer, they were not addressed, when he directed correspondence to the court as a non-lawyer, they were not addressed, and the failure and refusal to address honest and good faith criticism naturally only leaves one to assume that those criticisms are accurate and true. This is why they continued to be made, and even had taken on a more aggressive, and less objectively respectful, character, but none of it changes the fact that the Petitioner reasonably believed and believes the truthfulness of every word he has ever uttered, and all were made in good faith. For these reasons, there is no proper basis upon which to deny Petitioner reinstatement to the roll of attorneys in this Court. Petitioner concludes, however, by expressly and sincerely apologizing for any feelings of animosity and disrespect his comments engendered. There is not one word that Petitioner has uttered about any judge or practitioner that will create any lasting problems respecting the authority of even those as to whom the comments have been directed, and there is now, and never has been, any agenda of the Petitioner to do anything other than to appear before the Courts of the United States of America and to represent persons who have been hurt and harmed, and are in need of representation by competent legal counsel, and to practice his profession, and make his living in doing so. This Court pointed out during the August 27, 2013 hearing, it was up to Petitioner to persuade the Court that he was fit to return to the active roll of attorneys in the Middle District. Petitioner submits that has been done.
I hope people have the time and opportunity to read and understand the things that are discussed here and throughout this site – there are implications to all of it on your personal lives that may not be understood until it is too late for you to not be victimized by them.