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BERRY v. SCHMITT

Nos. 11-5456, 11-5515.

688 F.3d 290 (2012)

John M. BERRY, Jr., Plaintiff-Appellant/Cross-Appellee, v. Michael J. SCHMITT, in his official capacity as Chair of the Kentucky Bar Association Inquiry Commission, Defendant-Appellee/Cross-Appellant.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 27, 2012.

Attorney(s) appearing for the Case

ARGUED: William E. Sharp , American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellant/Cross-Appellee. Mark R. Overstreet , Stites & Harbison, PLLC, Frankfort, Kentucky, for Appellee/Cross-Appellant. ON BRIEF: William E. Sharp , American Civil Liberties Union of Kentucky, Louisville, Kentucky, David B. Tachau , Katherine E. McKune , Tachau Meek PLC, Louisville, Kentucky, for Appellant/Cross-Appellee. Mark R. Overstreet , Stites & Harbison, PLLC, Frankfort, Kentucky, Bethany A. Breetz , Stites & Harbison, Louisville, Kentucky, for Appellee/Cross-Appellant. J. Joshua Wheeler , The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, for Amicus Curiae.

ROGERS, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. ZOUHARY, D.J. (pp. 305-06), delivered a separate concurring opinion.

OPINION

ROGERS, Circuit Judge.

The balance between an attorney's right to free political speech and a state's right to regulate attorney conduct is delicate. States often successfully navigate the tension between these competing interests, permitting open critique while protecting the viability and vitality of judicial institutions. One of the ways that states do this is through ethical rules that prohibit attorneys from making false or reckless statements...

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