The Law is the Law, Like it or Not

By Mark David Blum, Esq.

The law on this subject is clear. What I do as an attorney … appear in Court, draft papers, or otherwise advance a case or controversy as a Lawyer and Officer of the Court is subject to the constraints and rules of the attorney’s Code of Professional Responsibility. Specifically, I am bound as a practicing attorney by the commentaries and statements I can make about a judge in Court or in papers. (DR 8-102B).

But, when I am not acting as an attorney, as I do when I publish here, the same rules do not apply. In these pages, you read what I as a private citizen who also happens to be a lawyer, thinks and opines about particular subjects. Nothing I say here is as an “attorney” or officer of the Court, but rather as a concerned citizen exercising his Constitutional rights to speak up about matters of public concern. The controlling case law on the subject in New York is found if found at Matters of the Justices of the Appellate Division v. Erdman, 33 N.Y.2d 559 (1973). There, New York’s highest Court said that the right of an attorney to make out of court statements accusing the judiciary of “buying their way into office”, “ rarely rule on questions of law”, and who were “whores who became madams” was constitutionally protected speech and not subject to disciplinary rules.

It is indeed a rare moment when I openly discuss a case in which I am involved as counsel unless the case has otherwise made its way into the public arena. My practice has always been both to protect the privacy of the litigants as well as to make sure nobody points a finger and accuses me of tampering with the jury pool. Notwithstanding that I indeed will protect the privacy of the litigants and because the case is being tried by a judge, I felt there are issues in this case that compel a public discussion; if for no other reason than to protect future litigants from making the same mistakes.

The following is purely an hypothetical situation. If people see themselves reflected therein, that would be more of a reflection of their own insecurities than a statement of fact. (Yes Ruthanne, that includes you). On the website there is found a Blog written for the site by a United States soldier with almost 17 years of active duty experience and several tours of combat in, Iraq, Saudi Arabia – including Desert Storm, Korea, and the Sinai; all the while defending the Nation and Her Constitution. He has more boards and medals on his chest that his fattening rear can support. All the while he was eating mud and swimming in his buddies’ blood, his soon to be ex spouse spent her time engaging in adulterous affairs. Upon our soldier’s last return from a forward firebase in Iraq, his Missus told him she was in love with her married man boyfriend and was leaving the marriage for good.

To their good credit, both of them have been wonderful parents. Each has been able to shield their two wonderful kids from the angst and anguish and combat of the divorce proceeding. In fact, until the arrival of lawyers, the parties had resolved every single issue of their divorce, custody, property, and support. Considering how complicated these things can be under even the best of circumstances, the fact that these two resolved it as peaceably and completely as they did impresses me.

Well, that is until the day that lawyers and judges became involved.

The issue here is not the divorce or the bloodshed but rather the most curious exchange first raised by my esteemed opponent.

Although not much more than an ankle biter as an opponent, I was taken aback when she stood up and began complaining in New York State Supreme Court about the commentaries written in a public Blog by an American soldier. Since there was nothing of any substance and who knows if any of it is true, I was truly befuddled by my opponent’s sudden explosion of outrage about an healing diary shared with friends and foe alike. My learned opponent went so far as to bring a photocopy of a pornographic magazine titled “Dirty Sanchez” and I can only assume she was intending to bring that to the Court’s attention as well. It would all be laughable how far this attorney was seeking to dig had it not been such a serious affront and direct assault upon the rights to Free Expression guaranteed by the United States Constitution. While the right to swing your fist ends at the tip of my nose, my right to free speech does not end at the point of your ear or the corneas of your eyes. Being offensive is the birthright of free speech.

I too had made some pretty bonehead and obnoxious arguments over the course of years. One ongoing case, I was asked prior to a proceeding by a Judge if I had an objection to the request by the media to record the proceedings. For reasons that are none of your business, I objected. The judge was taken about how such an advocate of free speech would take a stand against an open media. Point taken; but as any lawyer knows, sometimes you come home and need to take a long hot shower to rid yourself of the day’s slime.

What happened next was the most shocking part of all; the Judge actually turned to my client and said he had better not be discussing his divorce on a Blog and that he, the Judge would hold it against the client if the client did in fact, so publish. In the mind of the Judge, doing so potentially exposes the children to the risk of finding the website and Blog and knowing that it pertains to them and thereby creating the risk of harm. Once again, there is that nannystate attitude that ‘I know how to live life better than you do’. Also, there is what is commonly referred to as the fascist attitude whereby ‘I have a great idea of how I think people should live and gosh darn it, I am going to make sure they do or pay the price for not doing so’.

My client disagreed; as did I. In response to the Judge’s dire warning, the soldier took aim at the argument raised by the Judge and said that given the modern environment of matrimonial litigation, that a child should find out how a parent is feeling and experiencing a divorce is not an altogether bad thing. Some folks would think it would help the child understand and together their relationship comes to a deeper understanding. After all, we parents are raising adults, not children. We need to teach these critters to magically assume the helm of their own life upon reaching the age of majority. Understanding human suffering teaches empathy; a far cry from the narcissistic persons who so painstakingly ruined my own childhood.

At a subsequent court appearance, my opponent again whined about the soldier posting on his Blog. This time she took the unprecedented step and actually asked the Court to issue a restraining Order preventing the soldier from his writings.

The law on prior restraint is beyond this discussion. Suffice it to say that the Judge at least knew the law on prior restraint and denied the attorney’s request. He did however reiterate in no uncertain terms that the soldier’s writings would be held against him when determining custody.

I represent a United States soldier who has stood that wall and charged into fire for my safety and comfort. No weapon in the United States military arsenal is available to this soldier to fight the battle for his rights. As one of our Nation’s Founders, Thomas Paine once famously wrote, “these are the times that try men’s souls.”

It befalls me to stand up now in the foxhole and lead the attack. Then General Dwight Eisenhower pointed out how a soldier’s pack is no where near as burdensome as a prisoner’s chains. So I stand up before this judge and before you, the public and declare that a person is responsible for the content of their speech. The law and especially no New York Court should ever punish or sanction an American soldier for exercising the very rights for which he has offered his own life.

The gall of a judge to blankly declare that maintaining a Blog and expressing an opinion therein and sharing his suffering and betrayal is a spit in the eye of those who aimed their muskets at Bunker Hill. Are a man’s thoughts and feelings now an issue upon which a custody decision can be made or for which a court of law would issue a sanction?

I say “for shame”. The attorney who raised these issues has at least a colorable claim to urinating on our most basic constitutional freedoms. But a judge who looks a man in the eye and says his children will be taken from him because he spoke publicly of his life brings shame upon the robe he wears. He disrespects the constitution. Boiled down to its gravy, the standard this judge would insist we all share is that because the baby cannot chew steak, everybody must drink milk.

Let this be a clarion call. Courts of Law, even in northern New York counties, are not supposed to be processing machines. They are the last line of defense against corrupt government. Real human beings stand before them and a judge’s momentary angst can create such horrific damage to so many people. It is the task of the Courts to the Constitution and Her protections shield everyone; even American soldiers.

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