Mаrc D. MEZIBOV, Plaintiff-Appellant, v. Michael K. ALLEN, Hamilton County Ohio, Defendants-Appellees.
No. 03-3973
United States Court of Appeals, Sixth Circuit.
Argued: Aug. 12, 2004. Decided and Filed: June 16, 2005.
411 F.3d 712
Nor is there an adequate remedy at law for the Warrens. Even though it would seem that the Warrens could quantify their past lost profits due to the barricades and seek money damages in compensation, see Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995), future lost profits are much harder to quantify. Moreover, if these lost profits were of such a magnitude that the viability of their business were threatened (thereby giving rise to an irreparable injury as described above), then the Warrens would indeed have no adequate remedy at law and a permanent injunction would be appropriate. See Auto. Elec. Serv. Corp. v. Assoc. of Auto. Aftermarket Distribs., 747 F. Supp. 1483, 1513-14 (E.D.N.Y. 1990); see also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) (“Of course, Semmes’ past profits would afford a basis for calсulating damages . . . . But the right to continue a business in which William Semmes had engaged for twenty years and into which his son had recently entered is not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damages award.“); cf. Miami Univ., 294 F.3d at 819 (holding that an injury is not fully compensable by money damages if the plaintiff‘s loss would make damages difficult to calculate). Based on the record in this case, it was not an abuse of discretion for the district court to conclude that the Warrens could not obtain an adequate remedy at law for the potential loss of their business. We therefore affirm the district court‘s order of a permanent injunction.13
III.
For the foregoing reasons, we affirm the district court‘s order granting a permanent injunction, although only on the basis of the City‘s violation of the Warrens’ procedural due process rights.
Before: SILER, BATCHELDER, and MOORE, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 723-26), delivered a separate opinion concurring in part and dissenting in part.
OPINION
BATCHELDER, Circuit Judge.
Plaintiff-Appellant Marc D. Mezibov (“Mezibov“) appeals the district court‘s dismissal, pursuant to
BACKGROUND
Mezibov is an attorney licensed to practice in the state of Ohio. He served as defense counsel for Dr. Jonathan Tobias during Tobias‘s criminal trial in Hamilton County, Ohio, on 26 counts of abuse of a corpse. Allen was the Hamilton County Prosecutor during Dr. Tobias‘s prosecution. In the course of representing Dr. Tobias, Mezibov filed three motions seeking to dismiss the indictment and disqualify Allen on the basis that he had engaged in improper conduct. The trial court denied the motions, and on October 1, 2001, a jury convicted Dr. Tobias of two of the 26 counts of abuse of a corpse.
Mezibov alleges that immediately following the jury verdict, Allen released a statement to the local media which said the following:
Obviously, this [Mr. Mezibov] is a man who doesn‘t try too many cases and the verdict shows that. If I were Dr. Tobias, I would ask for my money back . . . . Real criminal defense attorneys, lawyers who try cases every day, don‘t do that. They don‘t throw mud . . . . Obviously it backfired in their face.
Mezibov further alleges that later that month, on October 21, 2001, Allen appeared on a local television show known as “Hot Seat” and made the following comments:
[Mr. Mezibov] wanted to make it a show trial where he could attack me, he could attack Dr. Parrott, but frankly it blew up in his face and now his client, because of [Mezibov‘s] conduct, faces two years in prison and the loss of his medical license. You know, in consumer law we have a saying let the buyer beware. I think in law, you ought to have a saying, let the client beware . . . . Had Dr. Tobias approached us early on about cooperating with the prosecution and working for us in a conviction of Mr. Condon, that‘s something that in all likelihood we would have entertained. But, his lawyer, Marc Mezibov, chose not to do that. And it makes you wonder, here‘s a man that now is going to lose his medical license, faces two years in jail, who may very well have been able to work with us
and escape prosecution. It makes you wonder about the tactics of defense counsel and their intentions quite frankly . . . . And when my ethics are questioned and when I‘m called unethical, you‘re gonna get it back and yоu‘re gonna get it back with both barrels because I have to. I can‘t permit that to happen. Real defense lawyers, the Scott Croswells of the world, the Merle Shiverdeckers, they try cases on the facts of the case. They try cases from the testimony that comes from the witness stand and the law that is given from the judge. I think Mr. Mezibov, what he wanted to do, he wanted his show trial. He wanted to be able to attack me, he wanted to be able to attack Dr. Parrott, and he wanted to be able to attack the Republican party . . . . I have to say had this matter been handled in the normal fashion by a defense lawyer who was interested in his client‘s best interest rather than having a political show trial, Dr. Tobias very well could have fared a lot better than he did.
In July 2002, Mezibov filed this
The district court dismissed Mezibov‘s complaint pursuant to
ANALYSIS
I. Standard of Review
We review de novo the grant or denial of a motion to dismiss under
II. Retaliation Under 42 U.S.C. § 1983
To survive a motion to dismiss a claim under
With regard to the second element of a
A. Protected Interest
Whether an attorney can claim First Amendment protection on his own behalf for his filing motions and making courtroom statements on behalf of his client is a question of first impression in this circuit. While the Supreme Court has not squarely addressed this question, it has noted, in dicta, that “[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991). Furthermore, it аppears that no circuit court has ever actually granted an attorney relief under the First Amendment for this narrow category of speech.
It is not surprising that courts have thus far been reluctant to allow the First Amendment to intrude into the courtroom. At first blush, the courtroom seems like the quintessential arena for public debate, but upon closer analysis, it is clear this is not, and never has been, an arena for free debate. Zal v. Steppe, 968 F.2d 924, 932 (9th Cir. 1992) (Trott, J., concurring); see Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (characterizing the courtroom as a nonpublic forum for purposes of First Amendment analysis). An attorney‘s speech in court and in motion papers has always been tightly cabined by various procedural and evidentiary rules, along with the heavy hand of judicial discretion. In fact, judges regularly fine attorneys, and even throw them in jail from time to time, as a direct consequence of attornеys’ in-court speech, and it appears no circuit court has ever found this to violate the First Amendment.1 When an attorney believes that the trial court improperly applied the law or relevant rules in preventing him from presenting information to the judge or jury, his sole remedy traditionally has been to appeal the judge‘s application of the particular rule of exclusion, rather than to claim First Amendment protection. See Gentile, 501 U.S. at 1071. Moreover, any such challenge is
Mezibov reminds us that “attorneys and other trial participants do not lose their constitutional rights at the courthouse door.”2 Levine v. United States Dist. Court for the Cent. Dist. of Cal., 764 F.2d 590, 595 (9th Cir. 1985). This grandiose statement is of little help, however, when it comes to analysis under the First Amendment, where rights have always depended largely upon the nature of the forum. The courtroom is a nonpublic forum, Berner, 129 F.3d at 26, where the First Amendment rights of everyone (attorneys included) are at their constitutional nadir. In fact, the courtroom is unique even among nonpublic fora because within its confines we regularly countenance the application of even viewpoint-discriminatory restrictions on speech. See, e.g., Zal, 968 F.2d 924 (upholding against First Amendment challenge attorney‘s contemрt citations for attempting to present excluded defenses to the jury and for using words forbidden by the judge, such as “abortion,” “fetus,” and “rights of the unborn“), cert. denied, 506 U.S. 1021 (1992);
Furthermore, in its equating attorneys with other trial participants, the quoted proclamation from Levine highlights an important flaw in Mezibov‘s argument. We cannot believe (and have come across no authority to suggest) that other trial participants, with the possible exception of an actual party to the case,3 possess any First Amendment right to speak up or otherwise present a point of view in the courtroom. We can conceive of no such right for jurors, court reporters, bailiffs, or spectators to interrupt a judicial proceeding with their questions or musings.
Moreover, an attorney‘s job in the courtroom, although it necessarily includes speech, is fundamentally inconsistent with the basic concept of “free” speech. As an initial matter, that the attorney has any permission to speak in a judicial proceeding is entirely dependent upon his representation of a client; absent that client, the attorney is completely silenced. But even once the attorney has his client, his advocacy in the courtroom and in filings cannot honestly be characterizеd as “free” speech. As noted above, myriad procedural and evidentiary rules, along with a liberal allowance for judicial discretion, operate to severely limit what an attorney can say in the courtroom. But more fundamentally, by choosing to represent a client in court, the attorney assumes a role that is in absolute conflict with his exercising free speech. For example, the attorney is bound by this voluntary relationship to make arguments only to the benefit of his client, regardless of what the attorney himself might like to say. See
Mezibov cites Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), for the proposition that an attorney has a First Amendment right to advocate on behalf of his client in court. The Supreme Court in Velazquez upheld a First Amendment challenge by indigent clients to a congressional statute allocating federal funds to local organizations for the purpose of providing legal representation to poor people in non-
Although it is Mezibov‘s most helpful authority for his view that an аttorney has a First Amendment right to advocate in court, Velazquez is actually quite different from the case at bar. First, Velazquez was a challenge by the Legal Services Corporation and its indigent clients seeking to vindicate the clients’ own First Amendment interests in having their otherwise-reasonable arguments heard in court; nowhere does Velazquez recognize a First Amendment right personal to the attorney independent of his client, as Mezibov seeks here. Second, Velazquez involved a regulation akin to a prior restraint (i.e., the clients’ otherwise-reasonable arguments were entirely excluded from the courtroom before the clients had a chance even to advance them), among the most noxious of affronts to the First Amendment. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (“Any system of prior restraint . . . comes to this Court bearing a heavy presumption against its constitutional validity.“); see also Velazquez, 531 U.S. at 544-45, 547-48. Mezibov, however, presented his arguments fully befоre being subjected to the alleged retaliation. Third, the regulation at issue in Velazquez forbade both in-court argument by the attorney and out-of-court consultation between attorney and client6 regarding the restricted issues, Velazquez, 531 U.S. at 544; the alleged retaliation in the instant case relates only to the narrower category of attorney speech in the context of a judicial proceeding. Fourth, Velazquez involved the complicating twist of a government funding program that the Court deemed a limited public forum for First Amendment purposes, id. at 543-44; the instant case involves only speech in the courtroom, which as a nonpublic forum is less conducive to free speech rights. See Berner, 129 F.3d at 26. For these reasons it cannot be said that Velazquez recognizes an attorney‘s First Amendment rights independent of his client‘s in the context of a judicial proceeding.7
We think the district court was correct in its basic conclusion: in filing motions and advoсating for his client in court, Mezibov was not engaged in free expression; he was simply doing his job. In that narrow capacity, he voluntarily accepted almost unconditional restraints on his personal speech rights, since his sole raison d‘etre was to vindicate his client‘s rights. For these reasons, we hold that in the context of the courtroom proceedings,
B. Adverse Action
Even if we were not convinced that Mezibov‘s advocacy is not protected under the First Amendment, we would affirm the dismissal of his claim due to his failure to allege that hе suffered an adverse action that “would deter a person of ordinary firmness from continuing to engage in [the constitutionally protected] conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). As an initial matter, pursuant to this court‘s en banc decision in Thaddeus-X, we are required to “tailor[]” our analysis under the “adverse action” prong to the circumstances of this specific retaliation claim. Id. at 398 (requiring specific tailoring and noting that “[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before an action taken against them is considered adverse“). Thus, the appropriate formulation of the “adverse action” prong in Mezibov‘s case is whether the alleged defamation would deter a criminal defense attorney of ordinary firmness from continuing to file motions and vigorously defend his client. See Mattox v. City of Forest Park, 183 F.3d 515, 522 (6th Cir. 1999) (formulating test under “adverse action” prong for elected city council member as whether a “public official of ordinary firmness” would be deterred from exercising her First Amendment rights).
We recognize that in a retaliation case, “since there is no justification for harassing people for exercising their constitutional rights [the effect on freedom of speech] need not be great in order to be actionable.” Thaddeus-X, 175 F.3d at 397 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Nevertheless, since
In Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999), we addressed First Amendment retaliation claims on behalf of an elected city council member and a former firefighter who initiated an investigatiоn of the fire department. The city council member, Mattox, claimed that defendants, in retaliation for her speech on matters of public concern, released embarrassing information about her that contributed to her losing the next election. We noted that as an elected public official, Mattox voluntarily opened herself to criticism of her actions and political stances, but that discrediting her in retaliation for her exercise of First Amendment rights was “inappropriate and unfortunate.” Id. at 522. Nonetheless, we emphasized that she was merely criticized-not fired-for her views, and that “[p]ublic officials may need to have thicker skin than the ordinary citizen,” and thus found that Mattox‘s alleged injury did not meet the “adverse action” requirement for retaliation. Id.
The firefighter, Holly, alleged that defendants releаsed information regarding a traumatic childhood incident and her personal relationships with members of the fire department in retaliation for her First Amendment activities. We noted that since Holly‘s embarrassing personal statements were irrelevant to the investigation, making them public in retaliation for her
For purposes of “adverse action” analysis, Mezibov is a hybrid of the two рlaintiffs in Mattox. Like Mattox, Mezibov, as an attorney taking on a high profile case, “voluntarily placed [himself] open to criticism of [his] actions.” See id. at 522. As such, Mezibov must have a “thicker skin than the ordinary citizen”8 when it comes to enduring criticism for his behavior, even if it is protected speech under the First Amendment. See id. And like Holly, Mezibov has failed to allege a “specific” or “concret[e]” personal injury. See id. at 523. He merely claims “damage to his professional reputation and emotional anguish and distress,” the very same kind of harms we found insufficient in Mattox. See id.
Furthermore, in analyzing the extent of the “adverse action” alleged by Mezibov, we must be careful to take into account only those comments made by Allen that could reasonably be construed as defamatory, lest we trample on the First Amendment rights that Allen retains as a govеrnment official. See McBride v. Village of Michiana, 100 F.3d 457, 462 (6th Cir. 1996) (cautioning in a
With all that in mind, we are not persuaded that a criminal defense attorney of ordinary firmness would be deterred from vigorously defending his clients as a consequence of the alleged defamatiоn in this case. First, as an attorney in a highly publicized case, Mezibov must be expected to endure some scrutiny for his actions. Second, any harm to Mezibov as a result of Allen‘s speech is too minimal to be constitutionally cognizable. Mezibov alleges no specific harm-only a generalized harm to his character and reputation. See Mattox, 183 F.3d at 521-22 (noting that while in some cases “embarrassment, humiliation, and emotional distress” are actionable under
CONCLUSION
In filing motions and vigorously defending his client in a judicial proceeding, Mezibov was not engaged in speech protected by the First Amendment; thus, he has failed to allege the protected interest necessary to succeed on his retaliation claim. Furthermore, the defamation Mezibov alleges does not constitute an adverse action sufficient to deter a criminal defense attorney of ordinary will from vigorously defending his client. Therefore, we AFFIRM the district court‘s dismissal of Mezibov‘s claim under
MOORE, Circuit Judge, concurring in part and dissenting in part.
Because I emphatically disagree with the majority‘s alternative holding that, “in the context of the courtroom proceedings, an attorney retains no personal First Amendment rights when representing his client in those proceedings,” Maj. Op. at 720-21, I dissent.
The majority‘s conclusion that there are “no First Amendment rights on the part of the attorney participating in a judicial proceeding,” Maj. Op. at 719, first rests on the inference that, because speech in a courtroom setting is subject to considerable restrictions, the First Amendment simply does not apply insidе the courtroom. I believe, however, that such an analysis is deeply flawed. While the Supreme Court and others have, on several occasions, upheld restrictions on courtroom speech, they have done so, not because First Amendment rights do not exist in the courtroom, but rather because such restrictions served to protect a defendant‘s constitutional right to a fair trial and to preserve the dignity of the courts.1 See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1081-82 (1991) (O‘Connor, J., concurring) (“Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech. This does not mean, of course, that lawyers forfeit their First Amendment rights, only that a less demanding standard applies.“) (emphasis added, citation omitted); United States v. Gurney, 558 F.2d 1202, 1209-10 (5th Cir. 1977) (in affirming limitations on media access to court proсeedings, explaining that, “[I]t is the trial judge‘s primary responsibility to govern judicial proceedings so as to ensure that the accused receives a fair, orderly trial comporting with fundamental due process. The trial judge
The majority also rests its holding that attorneys have no First Amendment rights in the courtroom on the belief that attorneys are simply like “other trial participants” who have no right “to interrupt a judicial proceeding with their questions or musings.” Maj. Op. at 718. However, I do not share the view that an attorney is simply another trial participant or that an attorney‘s filing of motions seeking the dismissal of criminal charges against his or her client is somehow akin to “inter-rupt[ions]” by “jurors, court reporters, bailiffs, or spectators.” Maj. Op. at 718. An attorney‘s primary role is to serve as his or her client‘s representative and advocate in the judicial process, and it is for this very reason that an attorney‘s First Amendment rights in the courtroom must be zealously guarded.3 The Supreme
Court has long recognized that parties often need the assistance of a trained, professional advocate who will represent their interests throughout the judicial process. See Legal Services Corporation v. Velazquez, 531 U.S. 533, 546 (2001) (“It is no answer to say the restriction on speech is harmless because, under LSC‘s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider. The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel.“); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and refleсtion require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. . . . The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.“). However, the ability and willingness of persons to serve as advocates for their сlients, particularly in matters adverse to the government, will be severely hampered if persons acting under color of state law are permitted to retaliate with impunity against attorneys who exercise their First Amendment rights on behalf of their clients. See Velazquez, 531 U.S. at 548 (“The attempted restriction is designed to insulate the Government‘s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.“) (emphasis added).
In the end, I simply cannot agree with the majority that the First Amendment plays no role when a public official, acting under the color of state law, allegedly retaliates against an attorney who brings to light potential misconduct by the public official. See Gentile, 501 U.S. at 1034-35 (Kennedy, J.) (“Nevada seeks to punish the dissemination of information relating to alleged governmental misconduct, which only last Term we de-
Thus, although I agree that Plaintiff-Appellant Marc D. Mezibov has failed adequately to allege that Defendant-Appellee Mike Allen‘s retaliatory conduct was so severe as to deter a criminal defense attorney of ordinary firmness from continuing to file motions on behalf of his or her client, Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc), I respectfully dissent from the majority‘s alternative holding that Mezibov‘s conduct enjoyed no cоnstitutional protection.
NORTHEAST OHIO REGIONAL SEWER DISTRICT; City of Cincinnati, on behalf of the Metropolitan Sewer District of Greater Cincinnati, Hamilton County, Ohio; City of Akron, Public Utilities Bureau; City of Columbus, Division of Sewerage & Drainage; City of Toledo (00-4502); Indiana Water Quality Coalition (01-3379), Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Nos. 00-4502, 01-3379.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 1, 2004. Decided and Filed: June 16, 2005.