John Berry, Jr. v. Michael Schmitt, 688 F.3d 290

Berry, an attorney, criticized Kentucky's Legislative Ethics Commission after a closed-session inquiry into a state senator's fundraising; he drafted and circulated an October 5 letter claiming the process was unfair and suggesting the deck was stacked.
The Kentucky Bar Association's Inquiry Commission investigated Berry under Rule 8.2(a) and issued a warning letter stating Berry violated the rule and should conform his conduct in the future; the file noted the warning would not constitute formal discipline and would be destroyed after one year.
Berry pursued pre-enforcement and facial challenges to Rule 8.2(a) in federal court after exhausting state remedies; the district court granted summary judgment for the KBA, and Berry appealed with a cross-appeal by the KBA.
The court discussed the district court’s application of pre-enforcement standing, ripeness, and the Rooker-Feldman doctrine as dispositive preconditions to reach the merits of Berry’s as-applied challenge.
The majority held that Rule 8.2(a) is unconstitutional as applied to Berry, applying aFirst Amendment scrutiny balancing attorney political speech against regulatory interests, and remanded for further proceedings consistent with its opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to challenge Rule 8.2(a) pre-enforcement	Berry suffered chill and credible threat of enforcement.	No injury-in-fact without imminent enforcement action.	Berry has standing to challenge pre-enforcement.
Rooker-Feldman applicability to Berry	Seeking prospective relief; not attacking a state court judgment.	Warning letter is a state-court action; Rooker-Feldman bars the claim.	Rooker-Feldman does not bar Berry's forward-looking claims.
As-applied challenge to Rule 8.2(a) under First Amendment	Speech about governmental affairs should be protected; rule unconstitutional as applied.	Ethics rules can regulate professional speech to protect judicial integrity.	Rule 8.2(a) applied to Berry is unconstitutional as applied.
Ripeness of Berry's claims	Threat of enforcement creates immediate injury; pre-enforcement challenge ripe.	Need for more factual record or potential future enforcement.	Claims are ripe for adjudication.
Scope of standard for evaluating attorney speech	Defense under defamation standards (New York Times) should apply.	Ethics rules require a different standard; protect public confidence in justice.	Even under a lenient standard (Sandlin/Yagman), Berry's speech cannot be sanctioned; rule unconstitutional as applied.

Steffel v. Thompson, 415 U.S. 452 (U.S. 1974) (injury in fact for pre-enforcement challenges)
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (U.S. 1979) (credible threat requirement for standing)
Morrison v. Board of Education of Boyd County, 521 F.3d 602 (6th Cir. 2008) (subjective chill requires more than mere fear)
Yagman v. City of Los Angeles, 55 F.3d 1437 (9th Cir. 1995) (test for protecting opinion based on disclosed facts)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (true/false factual basis required for defamation-speech distinction)
Fieger v. Ferry, 471 F.3d 637 (6th Cir. 2006) (distinction between backward-looking and forward-looking claims under Rooker-Feldman)
Raymond v. Moyer, 501 F.3d 548 (6th Cir. 2007) (Rooker-Feldman applies where user seeks reversal of state judgment)
Lawrence v. Welch, 531 F.3d 364 (6th Cir. 2008) (ripeness analysis for pre-enforcement bar admissions claims)
Hood v. Keller, 341 F.3d 593 (6th Cir. 2003) (Rooker-Feldman not applicable to prospective relief)
McCormick v. Braverman, 451 F.3d 382 (6th Cir. 2006) (hypothetical scenario illustrating limits of Rooker-Feldman)
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (U.S. 2005) (Rooker-Feldman scope clarified)
Sandlin v. United States Dist. Court, 12 F.3d 861 (9th Cir. 1993) (definition of reasonable attorney conduct standard for speech)