In Nov., we filed suit on behalf of a Kentucky attorney, John Berry, alleging First Amendment free speech violations against the Kentucky Bar Association’s Inquiry Commission.The basis for this suit started in June, 2007 when Common Cause of Kentucky - an organization dedicated to “open, honest, and accessible state and local government” - filed a complaint with the Kentucky Legislative Ethics Commission (LEC)regarding alleged fundraising irregularities by Senate President David Williams.The complaint resulted in a preliminary inquiry before the Commission in Aug., 2007.Our client attended the preliminary inquiry not as an attorney but in his capacity as a concerned citizen.
As a result of the proceedings (and the manner in which they were conducted), Mr.Berry felt compelled to send a letter to the Commission criticizing its handling of the matter.As a result, someone filed a complaint prompting the KBA to investigate whether Berry’s letter violated the rules governing attorneys’ conduct that prohibit attorneys from recklessly making false statements about judicial officers.
On Mar. 16, 2009 - after an approximately sixteen month investigation - the KBA: 1) concluded that Berry violated the ethical rule by “publicly implying that the Legislative Ethics Commission did not conduct its review appropriately;” and 2) issued a “warning letter” to Mr. Berry in lieu of formal disciplinary action.
We sued on Berry’s behalf because we believe that the KBA’s conclusion - that he violated Kentucky’s rules of professional conduct - unlawfully restricts Berry’s First Amendment right to engage in political speech.We are also challenging the KBA’s authority to enforce the ethical rule at issue on the basis that the rule, by punishing only those comments concerning “the qualifications or integrity” of judicial officers (or other legal-related positions), represents an unconstitutional content (and viewpoint)based restriction upon attorneys’ speech.Working with us on this case are ACLU of Ky. cooperating attorneys David Tachau and Kate McKune.
McQueary v. Stumbo
United States District Court
In 2006, the ACLU of Kentucky filed suit challenging restrictions on freedom of speech in a statute criminalizing protests at military funerals.The law sought to eliminate the protest activities of members of the Westboro Baptist Church whose members appear at military funerals to proclaim that God is punishing the United States for tolerating homosexuality.
Our challenge focused upon those provisions in the law that specifically restricted speech on public property near funerals, wakes, memorial services and burials because these restrictions prohibited even non-disruptive, non-disorderly speech and visual displays.U.S.District Court Judge Karen Caldwell granted our request for a preliminary injunction effectively barring Kentucky’s enforcement of the challenged provisions.
As a result of the Court’s preliminary injunction decision (and before the Court issued a final ruling in the case), the 2007 Ky. General Assembly amended the statute to eliminate those provisions we challenged.In 2008, the parties submitted briefs to the court addressing whether the legislative amendments effectively ended the litigation (rendered the case moot) or whether the state’s ability to reenact the challenged provisions require the court to issue a final ruling.The District Court ultimately agreed with the government and found that because the challenged provisions were repealed by the Legislature,the case should be dismissed as moot.The Court also ruled, however, that despite our initial victory in the litigation in obtaining the preliminary injunction, we were not entitled to recover statutory fees normally entitled to “prevailing parties” in civil rights litigation.
We believe that this ruling undermines the financial disincentive that serves to deter government officials from violating individuals’ civil liberties because it enables the government to defend clear abuses (such as here) only to repeal them once it becomes apparent in litigation that defeat is imminent (thus escaping financial liability).Given the obvious importance of the District Court’s ruling to civil rights litigants and civil rights organizations, we appealed the decision to the Sixth Circuit Court of Appeals.The parties’ briefing on the issue is now complete and we will argue this case before the Court on Apr. 22.
Vicsbingo.com v. Wingate
Kentucky Court ofAppeals / Kentucky Supreme Court
In 2009, the Kentucky Court of Appeals reviewed a decision by Judge Thomas Wingate that would have allowed state officials to seize 141 internet domain names because the websites constituted illegal “gambling devices” in the Commonwealth.We signed onto an Amicus brief with the Electronic Frontier Foundation and the Center for Democracy and Technology that detailed various arguments to the Court of Appeals about why Judge Wingate’s order represented an unconstitutional exercise of authority.Specifically, we argued that Judge Wingate’s order allowed state officials to ostensibly shut down all communications on those websites,including communications that are protected speech under the First Amendment.
The Court of Appeals overturned Judge Wingate’s decision, but did so without reaching the constitutional questions.Rather, the Court of Appeals ruled that internet domain names simply do not constitute “gambling devices” under Kentucky law.State officials then appealed the decision to the Kentucky Supreme Court where we again filed our joint brief identifying the constitutional issues.The parties conducted oral argument on Oct. 22 and we expect a ruling from the Court in the coming months.