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May 28, 2013 ACAP and Ken Marvin The Florida Bar Director of Lawyer Regulation Tallahassee, Florida Via Fax Re: The Florida Bar’s Pursuit of Atty. Gelin for Blogging, FB File #2013-50,964 (17C) Dear ACAP and Ken Marvin: Here’s an interesting dilemma for The Bar. Choose wisely in the face of this dilemma: The Bar is presently violating Florida’s Anti-SLAPP Statute 768.295 and the state and federal constitutions by hectoring Ft. Lauderdale attorney Bill Gelin for comments he has posted at his law blog about certain named judges. Of course, the Florida Supreme Court’s ruling in Bar v. Brake prohibits The Bar from coming against a lawyer for such comments if he makes them not “in the practice of law”—in other words not in a case and not on behalf of a client. If a lawyer says something untoward about a judge simply in the public square, untied to any case handled by the attorney, then The Bar can’t touch him, so says Brake. But we all know Ken Marvin and the other speech police at The Bar couldn’t care less about the law. Once you become a book burner of one book, you become a book burner of all books. Be that as it may, there is a fellow in Miami-Dade who claims to be a lawyer who anonymously runs the “Justice Building Blog” as “Rumpole,” and he repeatedly posts nasty stuff about sitting judges all the time, far more nasty than Mr. Gelin’s allegedly injudicious posts about Broward judicial knuckleheads. Here’s the rub for The Bar: “Rumpole” has stated publicly and now in an email to me (you’re welcome to it) that he attacks judges anonymously because he is afraid of Bar complaints. What an admission. He even has the gall to praise Mr. Gelin for putting his name (Gelin’s) to his blog. Rumpole says in a recent joint letter to The Bar with other lawyer bloggers that he stands with Mr. Gelin against The Bar, but of course this anonymous coward, who uses the email address of firstname.lastname@example.org does not really stand with Mr. Gelin, because a real man—a real defender of the First Amendment—would not hide behind a fake name. Are you standing when you are on your knees? We have the historical example of all of the signers of the Declaration of Independence. Nobody signed it “John Doe.” In fact John Hancock signed his name in oversized
cursive so that “King George could read it without his reading glasses.” Rumpole is no John Hancock. He’s a cockroach afraid of the light. So the problem for The Bar, whether you realize it yet or not, is that if you are going to punish one blogging lawyer, then you are going to have to punish them all for hurtful comments about judges. Otherwise, you have a disabling, fatal, but useful (to us) equal protection problem by virtue of selection prosecution and arbitrariness. Even a Bar official has heard of the Fifth and Fourteenth Amendments, right? If you are going to try to plug one blogging hole then you are going to have to be like the little Dutch Boy and stick your fingers in all of the holes in the leaking façade of judicial infallibility. Just this month, for example, Rumpole posted this comment about The Florida Bar’s handpicked Judge of the Year, criminal Circuit Court Judge Dava J. Tunis, to whom The Bar gave its President’s Award of Merit:
“Am I the only one who finds Dava Tunis to be a totally rude jerk? Am I the only one she cuts off mid sentence? Am I the only one she says, "I don't mean to be rude but...?" Am I the only one she treats like dog shit? Could it be me? I doubt it. Thursday, May 02, 2013 10:52:00 AM” See it at http://justicebuilding.blogspot.com/2013/05/trial-by-jury.html
This is quite a statement, posted by Rumpole, about a sitting judge whom The Bar says hung the moon despite the fact that in my matters before her brought by The Bar she violated state and federal laws, the Rules of Civil Procedure (receiving ex parte communications,etc.), multiple Bar Rules, rules of judicial decorum (hence the other person’s experience of her treating him, as is her wont, “like dog shit”), and just generally acting like a woman possessed as she screamed and waved her arms like a Dutch windmill when I was unfortunate enough to be in her rude presence. But this is the one judge that The Bar singled out as the best of the best a couple of years ago. And to the extent that The Bar allows this publicly posted comment by a lawyer about this judicial miscreant, The Bar accedes to it. I love it, and I should love it, as this frames the fix The Bar is in: How does it pick and choose which lawyers to whack for comments about sitting judges? Gee, maybe the First Amendment applies to everyone and not just to Bar Governors who defame anyone who gets in the way of their “goose-stepping brigades” (see this description of Bar officials by Justice Douglas in Lathrop).
Sooooooo, what’s it going to be, ACAP, Ken Marvin, and The Bar? Are you going to go after Rumpole, thereby being consistent as to Mr. Gelin, or are you, by not going after Rumpole, going to hand Mr. Gelin a gold-plated “get out of jail free card” by virtue of your selective, arbitrary enforcement of your speech codes that mandate that no lawyer may in any context either post or allow the posting at a blog of anything that lampoons a precious judge? Either way I win: If you let Gelin and Rumpole go, I get reinstated as a lawyer for having said about Judge Ron Friedman what the Third DCA said. If you go after both Gelin and Rumpole, a federal court will whack The Florida Bar for its speech codes. I get reinstated then, too. Gelin and Rumpole are joined at the hip. Rumpole in his screed against The Florida Bar last week says so! So which is it? And make no mistake: What Rumpole has posted exceeds what Sean Conway posted at Jaablog about Judge Aleman. The JQC even whacked her for basically agreeing with Conway’s assessment. But because Conway spoke the truth and did so in a colorful way, The Bar whacked him. Mr. Conway did not refer to Judge Aleman with any excrement words. But Rumpole has referred to Tunis in that fashion by approving that post. I couldn’t agree more. Judge Tunis’ judicial orders are not worth the toilet paper on which they are scribbled. And make no mistake, the above-noted post about Tunis is at the Justice Building Blog with Rumpole’s full knowledge and approval. Why do I say that? Because a) I brought it to his attention quite sometime ago, and b) Rumpole’s is a “moderated” blog site, which means Rumpole, as its owner and operator can and does censor posts based upon his judgment. It is not a free-for-all over which he does not exercise the editing function. Law is quite settled that if a site is moderated, then the moderator is responsible for what goes on there, including libel. You all have clearly raised this important moderation issue with Mr. Gelin by asking, repeatedly, if he moderates the blog site in any fashion. Here is what Rumpole has stated at his sitethat shows he does indeed moderate his site:
“Comment moderation has been enabled. All comments must be approved by the blog author.”
Put simply, if you moderate it, you buy it. One final note for you all to chew on: Rumpole proclaims this at the top of his judge-trashing site: JUSTICE BUILDING BLOG WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES AND LAWYERS WHO LABOR IN
THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM This is the “OFFICIAL” Justice Building Blog. Really? “Official” in what sense, assuming that this fellow knows what the word means? Is it “official” in that it is the only Bar-protected judgetrashing site in the State of Florida? “Official” in the sense that Rumpole posts confidential transcripts provided by The Bar that misrepresent Bar proceedings in a way favorable to The Bar? That would make it official certainly, even though The Bar prosecutes lawyers who rightly release case information to the media. Is it “official” in the sense that Rumpole is actually a de facto Bar operative, posting Bar prosecutors’ libels against targeted lawyers? “Official” in the sense that Rumpole alone is immune from Bar complaints that he admits he fears simply because The Bar has given him that immunity? Is this all what “OFFICIAL” means at this site? We assume Rumpole uses this important word for a reason, despite the fact that it is a falsehood to suggest that his site is “official” in the legitimate use of that word. So in sum: Look, it’s real simple, so simple even Ken Marvin should be able to figure it out, and it is this: Either The Bar goes after Rumpole, whose identity is easily determined by The Bar (Google has the identity and honors subpoenas in these regards) or it cannot touch Mr. Gelin. Make up your mind, or others will make it up for you. Trust me. Rumpole thinks this letter is a “Bar complaint.” He tells me so. It is no such thing: It is a letter merely pointing out what we all learned in the first month of law school: selective prosecution denies equal protection. So, pick your poison: you can get whacked by a federal court for selective prosecution or you can get whacked for violating the First Amendment rights of everyone. There is another option: Celebrate the First Amendment and leave everyone alone for their celebration of it. No matter which way you choose, of these three, I win. A horrible prospect, right? Put another way: Isn’t it about time for The Bar to concentrate on whacking unethical lawyers? Or would that involved busting too many Bar Governors? Warm personal regards, Jack Thompson
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