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Barring The First Amendment

Ft. Lauderdale Florida Courthouse, Broward-County
Broward County Judicial Complex, Fort Lauderdale, Fla. Photo by Georgia Guercio.

The Florida Bar seems to be unclear on how the First Amendment works, based on its interference in a feud between a South Florida lawyer and the Broward County Clerk of Courts. It’s just another day in the Sunshine State.

Last week, the U.S. Supreme Court handed down a decision clarifying when private actors are subject to First Amendment restrictions. In a 5-4 result, the court said that a private actor operating under government authority does not automatically become subject to these restrictions.

In the case at issue, New York City authorized a private nonprofit to run a public-access TV channel, which the local cable provider was obliged to furnish as a condition of its city franchise agreement. Justice Brett Kavanaugh wrote for the majority that a private entity becomes a state actor only when it fulfills a role that only the government has traditionally done. Since both public and private entities have run public-access channels, the nonprofit retains the right to air or not air the content it chooses. By the same token, the government cannot regulate what the private actor airs or declines to air.

This bring us back to my home state. The Florida Bar is a government entity, an official arm of the Florida Supreme Court. The Florida Bar licenses lawyers to practice in the state and sets standards of practice by which Florida attorneys must abide. The bar has the right to limit what an attorney can say in certain contexts, but only as far as such speech happens “in the practice of law” – in other words, during a case or on behalf of a client.

If blogging counts as the practice of law in Florida, then I am in trouble, as I am certainly not a lawyer. So what right, if any, does the Florida Bar have to demand the identities of commenters on a blog?

Generally none. But that has not stopped the bar from trying to do it anyway.

First, a bit of background. Lawyer Bill Gelin writes for JAABlog, a website focusing on the foibles of the Broward County legal community. He has said he is not the site’s owner, though he has been its sole writer for at least six years, according to the South Florida Sun Sentinel. JAABlog permits comments, which readers may publish under a pseudonym or completely anonymously.

Gelin has feuded with the clerk of courts, Brenda Forman, since last October. According to documents provided to the Florida Bar, Gelin approached Forman about an issue he was having with a client. Forman reportedly told Gelin to discuss it with her employees and insisted that he refer to her formally as “Madam Clerk or Mrs. Forman” when he did so. Gelin, taken aback by the demand, decided to write about the incident for his blog. This spun into a saga in which Forman filed a stalking complaint against Gelin, which she later dropped. Prosecutors are investigating whether Forman made false statements under oath related to this complaint, the Sun Sentinel reported in April. Forman also filed a grievance with the bar, alleging that Gelin has engaged in unprofessional conduct and harassment.

Forman has a colorful history in South Florida. She married Howard Forman, the previous occupant of her current position, and ran for his seat when he retired in 2016. Within months of Brenda Forman taking office, Howard Forman filed for divorce. The day after he did, Brenda Forman claimed her husband was mentally incapacitated; a circuit court judge ruled that she had acted in bad faith by filing the claim. Now Howard Forman is coming out of retirement to run against his ex-wife. Between running against her ex-husband, the criminal investigation into her conduct and a messy public dispute with the Broward Sheriff’s office about a murder suspect who was mistakenly set free due to a clerical error, Forman presumably has her hands full. Yet she has made time in her busy schedule to continue her feud with Gelin.

Forman reportedly applied earlier this year to serve as a nonlawyer member of the Florida Bar Board of Governors. For his part, Gelin has announced plans to run for president of the Florida Bar. Both parties seem to subscribe to the “if you can’t beat them, run them” philosophy.

For now, the dispute between Gelin and Forman has resulted in the Florida Bar’s attempt to get the names of people who are making negative anonymous comments about Forman on JAABlog. The bar subpoenaed Gelin in April, seeking details about the commenters behind 40 comments on the site, most critical of the court clerk. According to the Sun Sentinel, Forman told the bar that Gelin was using his blog to spread rumors and give his readers a chance to make hateful statements under the shield of anonymity. Gelin countered that the blog’s readers have a right to free expression.

Are there circumstances in which a state actor could demand the identities of commenters on a private website? Sure. An organization could make such a demand as part of a law enforcement proceeding. But the Florida Bar is not a law enforcement agency, so that justification cannot work in this case. The bar arguably could make such a demand as part of a disciplinary proceeding for an attorney. But how can this be the case here, when Gelin’s blogging clearly lies outside the practice of law? Even if it didn’t, Gelin has disclaimed authorship of the comments in question.

It is possible, in theory, that other attorneys could have written comments about a judge specifically to further their professional interests or the professional interests of their clients. That would be a case in which the bar could intervene. But since the comments are anonymous, nobody – including the bar – can know if that is what happened here.

This leaves us to wonder if the bar is taking the position that it can subpoena anybody – including me, another Florida-based blogger – for the identities of the people who publish comments on their blog. Do First Amendment protections somehow not apply if the bar dislikes the content of those comments?

We need only look to NAACP v. Alabama, a 1958 Supreme Court decision. The state issued a subpoena for the NAACP’s membership lists, including the specific names of members who resided in Alabama. The NAACP resisted, claiming it was unconstitutional to force it to disclose those records. The Supreme Court agreed. While the court decided that case based on the 14th Amendment, rather than the First, it made clear that subpoenaing a list of a names in this case essentially violated the members’ right to pursue their lawful private interests.

So can the Florida Bar subpoena the names of JAABlog’s commenters? The answer is most probably no. But the bar has decided to attempt it anyway.

This is not the first time Gelin has faced scrutiny from the bar over website comments. In previous cases, the bar has declined to pursue sanctions. His articles are a protected form of speech, and the bar has said in the past that he is not responsible for reader comments. Though he has previously turned over IP addresses in cases where law enforcement found comments to contain credible threats of violence, I have seen no indication that Gelin has provided any of the requested information to the bar in this instance. Instead, he has called the Florida Bar’s action an attack on the First Amendment and an abuse of power. It would appear that Gelin is sitting back and waiting to see what the bar will do. In the meantime, the bar is doing everything it can – which is nothing.

All this goes to show why Florida is such an interesting place to live, even when nothing in particular is happening.

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