NO. In the of the United States

LARRY EDWARD PARRISH. Esq. Member of Supreme Court Bar, Petitioner, v.

TENNESSEE SUPREME COURT BOARD OF PROFESSIONAL RESPONSIBILITY, Respondent.

On Petition for Writ of Certiorari to the Supreme Court of

PETITION FOR WRIT OF CERTIORARI

Larry Edward Parrish Parrish Lawyers, P.C. Counsel of Record 1661 International Dr. Suite 400 Memphis, TN, 38120 901-603-4739 [email protected]

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i

Questions Presented This case presents the following issues: 1. Should the judgment of the below be reversed because the Tennessee Supreme Court arbitrarily punished Petitioner/ lawyer as if his “pure speech” was “nonspeech” and/ or “incidental speech?” 2. Should the judgment of the Tennessee Supreme Court below be reversed because, in the below quasi- criminal proceedings,1 the Tennessee Supreme Court employed a standard that fails to meet minimum Fourteenth Amendment due process requirements (notice and a fair trial) and the prerequisite First Amendment requirements necessary before the false statement exception to free speech is invokable? 3. Should the judgment of the Tennessee Supreme Court be reversed because the combination of the Rules of Professional Conduct, Model Rule 8.2(a)(1) (hereinafter “Rule 8.2(a)(1)”), combined with the so- called “objective standard,” with its fictitious so-called “reasonable attorney” standard, combined with American Bar Association Standards For Imposing Lawyer Sanctions (hereinafter “ABA Standards”) section 6.12 (infra at 7 n.2; at 7-8; App. pp. 15-17, 29-32, 59-64, 66, 70, 76; RoA Vol. 20, AR Vol. 18, Tr. Ex. 7), made it impossible, in advance of Petitioner/lawyer penning the words in the recusal motion, to know that using the words for which Petitioner/lawyer has been sanctioned by suspension

1 In re Ruffalo, 390 U.S. 544, 551 (1968). ii of law license would risk being punished by the State, much less what the penalty could be? iii

Parties to the Proceeding Below The only petitioner is Petitioner/lawyer, an individual human being who is an attorney, licensed to practice law, by the State, since May 1968 (51 years), admitted to the Bar of this Court, in and since 1980 (38 years), and to the Bar of an additional 20 state and federal courts throughout the United States, and never, before the sanction for anything (RoA Vol. 5, AR Vol. 3, pp. 408-413). The only Respondent is the State of Tennessee, acting by and through its wholly controlled state agency, the Board of Professional Responsibility of the Supreme Court of Tennessee. Corporate Disclosure There are no corporate entities who are parties. iv

Table of Contents Questions Presented...... i Parties to the Proceeding Below...... iii Corporate Disclosure...... iii Table of Authorities ...... vii Petition for Certiorari...... 1 Opinion ...... 1 Jurisdiction...... 1 Constitutions, Statutes & Regulations Statement of the Case ...... 1 Statement of the Case...... 2 Sequence Of Events Below ...... 5 Outcome Below ...... 6 Instant Appeal’s Prelude...... 11 This Case ...... 11 First Amendment’s “False Statement” Exception ...... 12 No-Evidence...... 17 Recusal Motion Uniqueness ...... 19 Tennessee Precedent-On-Precedent...... 21 In re Hickey ...... 22 Pure Speech v. Nonspeech/Incidental Speech . 27 Gentile Void For Vagueness ...... 30 v

Conclusion...... 32 Appendix Appendix ADecision and Judgment in the Supreme Court of Tennessee at Jackson (August 14, 2018) ...... App. 1 Appendix B Order in the Circuit Court for Shelby County, Tennessee at Memphis, No. Ct-001608-16 (April 6, 2017) ...... App. 38 Appendix C Order in the Circuit Court for Shelby County, Tennessee at Memphis, No. Ct-001608-16 (December 12, 2016) ...... App. 43 Appendix D Final Order Imposing Sanction in Disciplinary District IX of the Board of Professional Responsibility of the Supreme Court of Tennessee, No. 2014-2401-9-AJ (February 19, 2016) ...... App. 69 Appendix EOrder on Dispositive and Other Motions in Disciplinary District IX of the Board of Professional Responsibility of the Supreme Court of Tennessee, No. 2014-2401-9-AJ (July 23, 2015) ...... App. 72 Appendix F Order in Disciplinary District IX of the Board of Professional Responsibility of the Supreme Court of Tennessee, No. 2014-2401-9-AJ (April 17, 2015) ...... App. 87 vi

Appendix GOrder Denying Rehearing in the Supreme Court of Tennessee at Jackson (August 28, 2018) ...... App. 89 Appendix H Constitution U.S. Const. amend. I...... App. 90 U.S. Const. amend. XIV...... App. 90 Tenn. Const. art. 1, § 8 ...... App. 92 Appendix I Appellant’s Motion to Recuse The Honorable David R. Farmer, Judge in the Court of Appeals of Tennessee at Jackson (September 16, 2013) ...... App. 93 Appendix J Quotations ...... App. 149 vii

Table of Authorities CASES In the Matter of Anderson, 1997 WL 701350 (State Bar Court of Cal. 1997) ...... 14 Bates v. State Bank of Arizona, 433 U.S. 350 (1977) ...... 35 Bigelow v. Virginia, 421 U.S. 809 (1975) ...... 35 Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d 37 (Tenn. 2004) ...... 7 Bd. of Prof’l Responsibility v. Reguli, 489 S.W.3d 408 (Tenn. 2015) ...... 7 Cameron v. Johnson, 381 U.S. 741 (1965) ...... 35 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ...... 35 In re Cobb, 838 N.E.2d 1197 (Mass. 2005) ...... 23 Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003) ...... 23 Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) ...... 35 In re Estes, 355 Mich. 411, 94 N.W.2d 916 (1959) ...... 29 Fieger v. , 553 F.3d 955 (6th Cir. 2009) ...... 29, 30 viii

Garrison v. State of , 379 U.S. 64 (1964) ...... 12 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ...... 31, 32, 34 Gohl v. Livona Public Schools, 836 F.3d 672 (6th Cir. 2016) ...... 36 In re Hickey, 258 S.W. 417 (Tenn. 1923) ...... passim Jacobs v. New York, 388 U.S. 431 (1967) ...... 35 Keeton v. Hustler Magazine, Inc., 456 U.S. 770 (1984) ...... 12 Keyishian v. Board of Regents of the University of New York, 385 U.S. 589 (1967) ...... 35 Lee Medical v. Beecher, 372 S.W.3d 515 (Tenn. 2010) ...... 32 Massachusetts v. Oakes, 491 U.S. 576 (1989) ...... 35 Mays By and Through Mays v. Henderson, 1992 WL 117058 (Tenn. Ct. App. 1992) ...... 21 NAACP v. Button, 371 U.S. 415 (1963) ...... 35 Napolitano v. Bd. of Prof’l Responsibility, 535 S.W.2d 481 (Tenn. 2017) ...... 7 New York Times v. Sullivan, 376 U.S. 254 (1964) ...... 14 ix

People v. Green, 3 Penn. 374, 378 (1884) ...... 26 Polk v. Faris, 17 Tenn. 209 (1836) ...... 21 Quarels v. Sutherland, 389 S.W. 249, 20 A.L.R.3d. 1103 (Tenn. 1965) . 21 Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989) ...... 15, 22, 23, 25 Rippo v. Baker, __U.S. __, 137 S. Ct. 905, 195 L. Ed. 2d 167 (2017)...... 20, 35 In re Ruffalo, 390 U.S. 544 (1968) ...... i, 1 In re Sawyer, 360 U.S. 622 (1959) ...... 17 Secretary of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947 (1984) ...... 35 Smith v. State, 385 S.W.2d 748 (Tenn. 1965) ...... 21 Standing Committee On Discipline of the United States District Court For the Central District of California v. Yagman, 55 F.3d 1430 (C.D. Cal. 1995) ...... 14 State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Okl.1988) ...... 14, 15, 16 Ex parte Steinman, 3 Penn. 220, 239 (1884) ...... 26 x

United States v. Alvarez, 569 U.S.709 (2012) ...... 35 United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968) ...... 29, 30 Weaver v. U.S. Information Agency, 87 F.3d 1429 (D.R. Cir. 1996) ...... 35 In the Matter of Westfall, 808 S.W.2d 829 (Mo. 1991) ...... 16 Williams v. Pennsylvania, 579 U.S. ___, 136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016) ...... 20, 35 In re Woodward, 300 S.W.2d 385 (Mo. banc 1957) ...... 16 CONSTITUTION Tenn. Const. art. 1, § 8...... 1 Tenn. Const. art. 1, § 19...... 26 U.S. Const. amend. I...... 1 U.S. Const. amend. XIV ...... 1 STATUTES 28 U.S.C. § 1257(a) ...... 1 RULES Rules of Professional Conduct, Model Rule 8.2...... i, 9, 10 Rules of Professional Conduct, Model Rule 8.4...... 6, 7, 8 xi

OTHER AUTHORITIES Attorney’s criticism of judicial acts as ground of disciplinary action; 12 A.L.R.3d 1408 (Cumulative Supp.) ...... 24 Beezy, B., An Alternative Approach To Evaluating Attorney Speech Critical Of The Judiciary: A Balancing Of Court, Attorney, And Public Interests, 1 UC Irvine L. Rev. 1221 (Dec. 2011) ...... 24 Bridge, E.A., Professional Responsibility And The First Amendment: Are Missouri Attorneys Free To Express Their Views?, 57 Mo. L. Rev. 699 (Spring 1992) ...... 24 Butcher, A., MacBeth, S., Lawyers’ Comments About Judges: A Balancing Of Interests To Ensure A Sound Judiciary, 17 Geo. J. Legal Ethics 659 (Summer 2004) ...... 24 Day, T.R., Speak No Evil: Legal Ethics V. The First Amendment, 32 J. Legal Prof. 161 (Spring 2008) ...... 23 DeFrain, S., Grievance Administrator V. Fieger: The Tenuous Link Between Attorney Silence And Public Confidence In The Legal System, 54 Wayne L. Rev. 1823 (Winter 2008) ...... 23 Hinkie, J.A., Free Speech And Rule 3.6: How The Object Of Attorney Speech Affects The Right To Make Public Criticism, 20 Geo. J. Legal Ethics 695 (Summer 2007) ...... 23 xii

Hudson, Jr., D.L., Lawyers Sanctioned For Critical Barbs, 3 A.B.A. J. E-Report 3, 3 NO. 39 A.B.A. J.E-Report 3 (Oct 2004) ...... 25 Jewel, L.A., I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, 33 Hastings Comm. & Ent. L.J. 341 (Spring 2011) ...... 25 Keane, L., Williams v. Pennsylvania: The Intolerable Image of Judicial Bias, 49 Loy. Chi. L.J. 181 (2017) ...... 20 LeClercq, F.S., The Process Of Selecting Constitutional Standards: Some Incongruities Of Tennessee Practice, 61 Tenn. L. Rev. 573 (Winter 1994) ...... 24 Mashburn, A.R., Making Civility Democratic, 47 Hous. L. Rev. 1147 (Winter 2011) ...... 24 Sparling, T.A., Attorneys Un-Muzzled: Does Republican Party Of V. White Invalidate The Use Of An Objective Standard In Cases Involving Extrajudicial Speech Criticizing A Judge?, 30 Hamline L. Rev. 59 (Winter 2007) ...... 24 Tarkington, M., The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, 97 Geo. L.J. 1567 (Aug. 2009) .... 23 Wright, D.W., In Re Holtzman: Free Speech Or Professional Misconduct?, 9 Touro L. Rev. 587 (Spring 1993) ...... 25 1

Petition for Certiorari Petitioner/lawyer respectfully requests the Court to issue a writ of certiorari to have this Court review the record below that produced the Opinion filed by the Tennessee Supreme Court, on August 14, 2018 (A. pp. 1-37) (hereinafter “Opinion”) effectuated by issuance of the Tennessee Supreme Court’s August 28, 2018 mandate (A. p. 89) which was executed on September 7, 2018. Opinion The Opinion is not yet published in the Official Reporter, Southwest 3d, but, in due time, will be. It is now retrievable on WestLaw at 2018 WL 3853472 (A. pp. 1-37). The Opinion, unless reversed or recalled by the Tennessee Supreme Court, is binding stare decisis common law precedent in Tennessee (infra at 21) and persuasive precedent throughout all jurisdictions in the United States. Jurisdiction This Court’s appellate jurisdiction is invoked pursuant to 28 U.S.C. § 1257(a). Constitutions, Statutes & Regulations Statement of the Case United States Constitution amend. I. (A. p. 90) United States amend. XIV. (A. pp. 90-92) Constitution of Tennessee, Article 1, section 8 (Law of the Land Clause).(A. p. 92) 2

Statement of the Case This case is about a motion to recuse an intermediate appellate court judge (because of a result- oriented adjudication). The recusal motion (A. pp. 93-147), includes among its 12,444 words, the following 315 words (A. p.94): Counsel [here Petitioner/lawyer] for Estate [Petitioner/lawyer’s client] has known Judge Farmer [intermediate appellate judge about whom the recusal motion speaks], professionally, since the early 1970s and has never questioned his integrity. Judge Farmer and counsel [Petitioner/lawyer] for Estate [client] have personal friends in common and share, according to counsel’s understanding, a deep and enduring commitment to the Judeo- Christian Work and Family Ethic. Counsel [Petitioner/lawyer] holds no ill-will, no grudges, maintains respect for Judge Farmer’s skill as a judge, considers his feelings in this case to be an aberration and, if the occasion aberration (sic) arose, would freely commiserate with Judge Farmer the same as if this motion had never been filed. Estate and counsel for Estate regret the necessity to file this motion, but Estate is an entity-person with fiduciary duties to the nine heirs-at-law (hereinafter “heirs”) of Estate’s decedent, John J. Goza, and Estate’s counsel has a fiduciary duty to Estate, which indirectly translates into a fiduciary duty to the heirs. 3

Presuming, for argument’s sake, that Judge Farmer has been motivated and continues to be motivated to do what Judge Farmer has done to Estate [client] by a high and compelling sense of moral duty, the result for Estate [client] is exactly the same as if Estate [client] was victimized by a judge with sinister motives. Judge Farmer is no rookie. He has continuously served an intermediate appellate judge in Tennessee since March 1986 (over 28 years) and has amassed a trophy case of opinions that evidence minute familiarity with Tennessee law and the skill and scholarship to rightly divide Tennessee law, when he is of a mind to do so. (emphasis added). What has motivated Judge Farmer to do to Estate [client] what he is doing may very well be a high-minded and a moralistic sense of “duty” to prevent what, in his eyes, is an injustice … . While the Opinion quotes, verbatim, 1,868 words, denoted by bullet points (Opinion at 2018 WL 3853472 *2 - *5) (A. pp. 5-14), from the recusal motion, the above-quoted 315 words nowhere appear in the Opinion nor are the 315 words generally acknowledged to be part of the recusal motion. But, the next to last bullet point in the Opinion (A. p. 53) includes the recusal motion’s words as follows: “[m]akes no accusation that Judge … has taken a bribe; this is completely out of the question … .” (emphasis added). 4

The recusal motion (A. p. 93-148) is 12,444 words, all of which argue that the judges had disqualified themselves from adjudicating the case, by a result- oriented adjudication. The BPR segregated out 1,868 words (not including the above-quoted words), taken out of context and collected from throughout the 12,444 text, and arbitrarily stamped those words to be “false.” Considering the 315 words from the recusal motion, what the recusal motion actually says about the judge is that he is a highly qualified jurist, extremely knowledgeable of the law, of high moral character and a man of integrity. The recusal motion’s derogatory comments were a critique of the judge’s methods and work-product but not the judge’s integrity or character. This case presents, in pristine form, the issue of whether the so-called “objective” “reasonable attorney” test for regulating attorney speech, outside the courtroom itself, violates the First Amendment. This case also presents the issue of whether the State can impose discipline on an attorney for uttering “false” statements without requiring the disciplinary authority to prove actual falsity of the statements alleged to be false and without permitting the attorney to present evidence to prove that the statements are true. The issue here (and on appeal below) is the suspension sanction imposed by the Tennessee Supreme Court. For a suspension sanction there must be an adjudication that the words spoke a falsehood, to escape protection as free speech. The issue here is 5 whether the failure to adjudicate a false statement left the words in question fully protected as free speech. Finally, this case presents the issue of whether a state can impose discipline on an attorney for written truthful pure speech under a novel standard, of which the attorney had no actual knowledge nor “should have known” notice at the time the statements were written. Sequence Of Events Below The State of Tennessee, through its Supreme Court (herein “State”), overturned a public censure sanction of the State’s Disciplinary authority (hereinafter “BPR”) hearing panel (hereinafter “Hearing Panel”) and, in place of the public censure of petitioner (herein “Petitioner/lawyer”), adjudicated a suspension of law license. The BPR filed a formal complaint (RoA Vol. 3, AR Vol. 1 pp. 1-181, RoA Vol. 4, AR Vol. 2 pp. 182-357), against Petitioner/lawyer, charging that Petitioner/lawyer’s words in the recusal motion were “false” accusations against the intermediate appellate judges; therefore, Petitioner/lawyer had no First Amendment free speech protection. (Petitioner/lawyer’s response: RoA Vol. 5, AR Vol. 3 pp. 358-407; RoA Vol. 16, AR Vol. 14 pp. 2382-96, 2405-47). 6

After the Hearing Panel’s public censure sanction (A. p. 70), the BPR initiated an appeal (A. p. 16, 43; RoA Vol. 3, AR Vol. 1; Tech R. Vol. 1, pp. 1-6) seeking a suspension sanction rather than the public censure. Petitioner/lawyer, as an appellee, opposed the suspension sanction (RoA, Tech. Vol. 1 pp. 7-17).

The August 14, 2018 Opinion (A. p. 35-36) affirmed the suspension sanction. On August 28, 2018, the Supreme Court denied (A. p. 89) Petitioner/lawyer’s petition to rehear. Outcome Below The complaint initiating charges (RoA Vol. 3, AR Vol. 1 pp. 7-8) against Petitioner/lawyer, in pertinent part, reads as follows: ALLEGED VIOLATIONS 43. It is alleged that Mr. Parrish violated the following Rules of Professional Conduct: *** Rule 8.4 MISCONDUCT It is professional misconduct for a lawyer to: *** (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation The Hearing Panel’s July 23, 2015 order (A. pp. 80, 81, 84), in pertinent part, reads as follows: B. The Board’s Motion for Judgment on the Pleadings 7

The Board has alleged Respondent violated the following Rules of Professional Conduct: *** Rule 8.4(c). It is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. *** 5. Summary The Hearing Panel does not find a violation of Rule 8.4(c). (emphasis added). The Hearing Panel’s Final Order (A. p. 70) reads as follows: The panel also concluded that Respondent had not violated Rule 8.4(c) of the Rules of Professional Conduct. (emphasis added). [see also A. p. 84] The Tennessee Supreme Court’s precedent2 conforms the level of a sanction for unethical words of a lawyer to the ABA Standards.3 The Opinion, in pertinent part, reads as follows (2018 WL 3853472 *12; A. p. 16):

2 Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d 37, 40 (Tenn. 2004)). See also Napolitano v. Bd. of Prof’l Responsibility, 535 S.W.2d 481, 502 (Tenn. 2017) (quoting Bd. of Prof’l Responsibility v. Reguli, 489 S.W.3d 408, 424 (Tenn. 2015)) (“When reviewing disciplinary sanctions, this Court reviews comparable cases to ensure consistency in discipline.”).

3 See supra at p. i Number 3. 8

[A]BA Standard 6.12 applies, not ABA Standard 6.13. Under ABA Standard 6.12, the presumptive sanction is suspension, not a reprimand. ABA Standards, in pertinent part, reads as follows: 6.0 Violations of Duties Owed to the Legal System 6.1 False Statements, Fraud, and Misrepresentation [t]he following sanctions … in cases involving … dishonesty, fraud, deceit or misrepresentation to a court: *** 6.12 Suspension is generally appropriate when a lawyer knows that false [i.e., dishonest misrepresentation] statements … submitted to the court. ABA Standard 6.12 applies only to conduct that “involves dishonesty, … or misrepresentation to a court;” Petitioner/lawyer was exonerated of violating RPC 8.4(c) charge, i.e., dishonesty and misrepresentation. (A. pp. 70, 84) (emphasis added). The Opinion, in pertinent part, reads as follows (2018 WL 3853472 *7; A. p. 18): When reviewing judgment in a disciplinary proceeding, …. Just as the trial court did, we [Supreme Court] … “shall not substitute its 9

judgment for that of the hearing panel as to the weight of the evidence on questions of fact.” (citations omitted). The Hearing Panel’s ruling that Petitioner/lawyer did not engage in conduct that “involves dishonesty … or misrepresentation” and, explicitly, the Opinion states that the Hearing Panel’s findings of fact were not reversed. The complaint initiating charges, in pertinent part, reads (RoA Vol. 3, AR Vol. 1 p. 7) as follows: Rule 8.2 JUDICIAL AND LEGAL OFFICIALS (a) A lawyer shall not make a statement that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning qualifications or integrity of the following persons: (1) a judge The Hearing Panel, in its July 23, 2015 order, in pertinent part, adjudged (A. p. 82) as follows: 2. Rule 8.2(a)(1) Rule of Professional Conduct 8.2 prohibits an attorney from making false statements concerning the integrity or qualifications of a judge). An attorney violates Rule “making accusations of judicial impropriety that a reasonable attorney would believe are false.” Gardner, 793 N.E.2d at 432 10

[B]oard [Hearing Panel] finds … [Petitioner/lawyer] made statements about the integrity of Judge … that a reasonable attorney would believe were false. [I]ncluded accusations that the Judges: purposefully ignored binding law, purposefully fabricated facts, manipulated and rigged the legal system, acted in a manner that indicated they had taken bribes, abused their judicial power, surrendered their impartiality, and ruled against his clients due to personal sympathies and bias. These accusations were made with reckless disregard as to their truth or falsity. Respondent violated Rule 8.2(a)(1) [not Rule 8.4(c)]. (emphasis added). There is not now nor has there ever been an ethical rule that an attorney violates Rule 8.2(a)(1) by “making accusations of judicial impropriety that a “reasonable attorney” would believe are false,” even if the statements are, in fact, true. The Opinion, in pertinent part, reads as follows (A. pp. 27-28)(2018 WL 3853472 *10): We [the Tennessee Supreme Court] hold that the objective “reasonable attorney” standard is the appropriate standard to apply in a disciplinary proceeding involving an attorney’s in-court speech [infra at 30-32; A. pp. 20, 21, 22, 24, 27, 28, 33, 34, 35]. Utilizing this objective standard, (fn. omitted) the hearing panel found that Mr. Parrish had made statements in the motions to recuse about the integrity of the judges on the Court of Appeals that a reasonable attorney would believe to be false, and that Mr. Parrish had 11

made those statements with reckless disregard as to their truth or falsity. (emphasis added). Instant Appeal’s Prelude

The present controversy started, in October 2010, when Petitioner/lawyer, as the attorney for a probate estate client, on undisputed facts and indisputable controlling (i.e., never overruled) black letter precedent favoring the estate’s position, routinely filed a petition (RoA Vol. 5, AR Vol. 3 pp. 2429-2430) for an order requiring a bank trust department to show cause why a certain putative trust should not be declared nonexistent and the “assets” of the nonexistent trust’s “corpus” be distributed to certain heirs-at-law. But, unexpectedly, Petitioner/lawyer and his client were treated like the bull in the proverbial China shop, appearing before trial and intermediate appellate adjudicators and defendants who have spent their professional lives thriving in the China shop, unscathed. Petitioner/lawyer constantly argued that disruption of the status quo is an irrelevancy to trial and intermediate appellate adjudicators who are oath- bound to faithfully apply the controlling precedent (infra at 21; A. p. 151), without regard for what result applying precedent yields This Case This case is about Petitioner/lawyer’s license to practice law being suspended because Petitioner/lawyer, for a client, by a wholly written, post-judgment, recusal motion, using pure speech (i.e., no invectives, no outbursts of any kind and no incidental acts accompanying the speech) explained in minute, line-by- 12 line and microscopic detail, why the adjudicators’ adjudication was a result-oriented adjudication, i.e., not an inadvertent mistake nor a plausible construction of the subject statute or case law. The recusal motion was neither a theoretical nor philosophical discussion of result-oriented adjudications but came in the context of a real in- process case, with a record on appeal, history and controlling precedent intimately known to the writer. The recusal motion is advocacy that result-oriented adjudications, per se, are constitutionally illegitimate, and inexcusably unjustifiable judicial misconduct. First Amendment’s “False Statement” Exception Neither a false statement made knowingly, or a false statement made with reckless disregard of the truth enjoys constitutional protection because there is no constitutional value in such false statements. Garrison v. State of Louisiana, 379 U.S. 64, 75 (1964); Keeton v. Hustler Magazine, Inc., 456 U.S. 770, 776 (1984). Very important to underscore is the “false statement made with reckless disregard” words. The “reckless disregard” concept is often carelessly misconstrued to say a recklessly made statement which is true is treated as if it were false. The false statement exception cannot include true statements which a fictitious person “believes” is false. In Tennessee, the fictitious so-called “reasonable attorney” (supra at i, 4, 9, 10, infra at 17, 18, 22, 23, 13

27, 28, 34, 36; A. pp. 15, 25, 27-28, 29, 42, 45, 62, 82, 83) has no proven age, no proven experience, no proven background and has been provided no evidence bearing on the credibility of the intermediate appellate adjudicator, the credibility of accused lawyer, no evidence concerning the record and no evidence as to what the law on point is (A. p. 81, 81 n. 1, 88 No. 1: “. . . Board’s statement. . . .”; But see RoA Vol. 18, AR Vol. 16 p. 2827-28). The belief of this make-believe person, judged by the justices of the Tennessee Supreme Court only, is the sole arbiter of whether a statement by a lawyer in Tennessee is or is not First Amendment-protected. If this is enough to suspend a lawyer, what is to stop Tennessee from disbarring a lawyer because this fictitious, uninformed so-called “reasonable attorney” believes a statement by the Tennessee lawyer is true or false? The only way Tennessee’s fictitious so-called “reasonable attorney” could possibly conclude that the words of Petitioner/lawyer are false is to start the inquiry with an irrebuttable presumption that Tennessee adjudicators would never deliberately refuse to follow binding precedent, i.e., rule by a result- oriented adjudication. Before the Opinion, Tennessee and most other jurisdictions did/do not employ the so-called “reasonable attorney” standard but, instead, require the disciplinary authority to prove, by evidence, that what is alleged to be false, in fact, is false.4 Merely

4 See infra at 14-17. 14 implying that a fictitious so-called “reasonable” attorney would “believe” the statement is false categorically is not proving that the statement, in fact, is false. The New York Times v. Sullivan, 376 U.S. 254 (1964) malice argument unnecessarily is drawn into the discussion by advocates for the so-called “objective” standard. Evidence that a statement, in actuality, is knowingly false is an objective standard. Malice is irrelevant. Defamation is a non-factor in deciding whether the false statement exception to free speech applies. The issue is whether evidence of falsity, properly weighed in the balance and sifted for credibility and probative significance, is required. Standing Committee On Discipline of the United States District Court For the Central District of California v. Yagman, 55 F.3d 1430, 1438 (C.D. Cal. 1995) (“without proof of falsity, Yagman’s ‘drunk on the bench’ allegation, … cannot support … sanctions for impugning the integrity of the court. See [State ex rel. Oklahoma Bar Association v.] Porter, 766 P.2d 958 [(Okla. 1988)] at 969 (dismissing requests for sanctions against an attorney where no proof of falsity was introduced). Truth is an absolute defense. [fn. 5] (Yagman, supra, 55 F.3d at p. 1438. [D]iscipline … is not warranted by virtue of the absence of any showing of falsity.” (Id., at p. 969). Particularly elucidating on this subject are the words of the court in In the Matter of Anderson, 1997 WL 701350 (State Bar Court of Cal. 1997) (at *8): 15

In (citations omitted) statements impugning the honesty and integrity of the courts or judicial officers were expressly found to be false. (citations omitted) *** [a]re by no means inconsistent with the conclusion that a statement impugning the honesty or integrity of a judge is not disciplinable unless it is false. *** Finally, we hold that OCTC [disciplinary authority] bears the burden of proving falsity. (citations omitted) This holding is entirely consistent with the principle that, in attorney disciplinary matters, OCTC bears the burden of proving culpability by clear and convincing evidence. (citations omitted) Even the cases that lean toward the so-called “objective” standard require that the evidence prove actual falsity. No case even alludes to the notion that an unproven (implied) “belief” by a fictitious person that a statement is false is enough to evade the First Amendment. No court more clearly states the proposition than the Tennessee Supreme Court. Ramsey’s (infra at 22) HOLDING (not its dicta) reaffirms Tennessee’s stare decisis precedent evidenced in Hickey and cites Porter as a case with like and similar precedent. On point, Ramsey reads as follows (771 S.W.2d at 121-22): 16

There is no First Amendment protection for remarks critical of the judiciary when those statements are FALSE. A statement SHOWN to be FALSE will subject a lawyer to disciplinary sanctions. FALSE statements … can be prejudicial to the administration of justice and subject to disciplinary action … . (emphasis added). A fortiori, statements that are not false cannot “be prejudicial to the administration of justice.” This presupposes that the “false” statement is proven to be false not merely imagined to be false by a fictitious person’s belief. A true statement, no matter how cutting, cannot ever be “prejudicial to the administration of justice.” The following from the Missouri Supreme Court, en banc, is notable in In the Matter of Westfall, 808 S.W.2d 829 (Mo. 1991) (dissent) at 845: The more recent and better considered cases recognize that First Amendment protection applies with full force.6 The quotation from our case of In re Woodward, 300 S.W.2d 385, 393–94 (Mo. banc 1957) must be read in the light of the numerous intervening Supreme Court decisions demonstrating that courts are seriously limited in sanctioning lawyers for what they say, and that disciplinary rules must consist with the First Amendment. *** Fn. 6 State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Okl.1988); 17

Inherent in the false statement exception to First Amendment free speech is that the statement be established to be false by due process. The belief, gleaned without evidence, of a fictitious and unconfrontable so-called “reasonable attorney,” in nobody’s book, is due process. No-Evidence The Opinion creates never-before-heard-of precedent, i.e., that, when a “false” statement is a prerequisite to imposition of a suspension of license sanction, zero evidence is required to prove what is alleged to be false, in fact, is false. From the outset, continuously throughout the disciplinary proceedings and the ongoing present, the disciplinary authority has contended that it has no burden to present any evidence, other than the testimony of Petitioner/lawyer that he authored the recusal motion and record on appeal to prove that what it alleged to be false is false (A. p. 81, 81 n. 1, 88 No. 1: “. . . Board’s statement. . . .”).

The Hearing Panel (roughly equivalent to a 3- lawyer judge-jury combination appointed by the disciplinary authority) and the Tennessee Supreme Court affirmed the contention that no evidence, other than the undisputed recusal motion, is required to prove whether the 1,868 words the Opinion extracts (A. p. 5-14) from the 12,444-word recusal motion speak false statements. See infra at 17-18. The factor in In re Sawyer, 360 U.S. 622 (1959) that caused Justice Stewart to tip the scales in a plurality opinion that reversed the Hawaii Supreme Court’s discipline of a lawyer was the fact that the 18

Hawaii Supreme Court failed to take the lawyer’s speech as a whole. The error of the Hawaii Supreme Court was homing in on the offensive parts of the speech out of the context of the whole speech. The taken as a whole rule is exhaustively discussed in the record (RoA Vol. 17 AR Vol. 37 at 2541; Tech. Rec. Vol. 1 at 110; Appellant’s Brief, Typographically Corrected pp. 18-20; Amended Reply Brief pp. 9-10) but not once mentioned by any tribunal below. Petitioner/lawyer testified at Hearing Panel’s open hearing and repeated prior sworn statements (RoA Vol. 5, AR Vol. 3 pp. 358-407; RoA Vol. 16, AR Vol. 14 pp. 2382-96, 2405-47) that the words, all of them, in recusal motion are true and provable, by evidence, as true. Petitioner/lawyer, in every way conceivable, denied that the words are false and attempted, but was turned back by the Hearing Panel, to present evidence, in addition to his testimony, that the words spoke the truth. To come under the false statement exception to First Amendment protection, it goes without saying that the speech must be false, irrespective of what any fictitious so-called “reasonable attorney” may be inferred by the court to “believe.” 19

Petitioner/lawyer contends that the so-called “objective tests,” all of them, are constitutionally defective as void for vagueness, but that contention aside, the so-called “objective test” created by the Opinion is so devoid of the remotest semblance of fundamental fairness that there is none but a disingenuous argument able to be posited in its favor. The upshot is that, in Tennessee, the fictitious so- called “reasonable attorney” standard, on which a person’s First Amendment free speech right hangs, can be excluded from First Amendment protection, without the necessity for an inkling of evidence other than the undisputed statement and the testimony of the declarant. The “no-evidence” requirement of the new Tennessee rule is different from the so-called “objective” standard adopted by both the Ohio and the Massachusetts supreme courts, in that the Ohio and Massachusetts (infra at 23 n. 8, n. 9) rule require evidence of falsity. Recusal Motion Uniqueness That this is a recusal motion case separates this case, in case-dispositive ways, from all of the cases cited as controlling or persuasive precedent in the Opinion, i.e., the Opinion cites to no case involving a recusal motion. A recusal motion, no matter what words are used to state the motion, is designed to be an ad hominem accusation directly to and about the adjudicator whom the recusal motion seeks to recuse. Ordinarily, the accused adjudicator adjudicates the accusation against the adjudicator; this self-judging is a practice (i.e., the 20 defendant adjudicates whether the “defendant” is guilty or innocent) otherwise unknown to Anglo- American jurisprudence and is constitutionally suspect.5 The recusal motion’s bottom line is that the adjudicator has engaged or will appear to have engaged in judicial misconduct, if the adjudicator has or continues to adjudicate the case at hand. This Court has very recently reiterated the foundational importance of recusal motions to the very preservation of administration of justice.6 There is no motion like a recusal motion. The office of the recusal motion is unique. The recusal motion, by its very nature, sets up an adversarial relationship (no matter how otherwise professionally amicable the relationship might be) between the adjudicator and the litigant who makes the recusal motion. Reading the recusal motion’s bullet-pointed words, quoted in the Opinion (A. pp. 5-14), one would reasonably conclude that words like the 315 words (supra at 2-4) would not be found in the recusal motion because, read with the 315 words, the recusal motion paints a markedly different picture of the integrity of the judge than the picture the Opinion indicates the recusal motion paints.

5 Keane, L., Williams v. Pennsylvania: The Intolerable Image of Judicial Bias, 49 Loy. Chi. L.J. 181, 211 n. 234 (2017).

6 Williams v. Pennsylvania, 579 U.S. ___, 136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016) and Rippo v. Baker, __U.S. __, 137 S. Ct. 905, 195 L. Ed. 2d 167 (2017). 21

Tennessee Precedent-On-Precedent A case from which there has never been an inch of retreat, created Tennessee’s precedent-on-precedent. Polk v. Faris, 17 Tenn. 209 (1836), explained its holding as follows (17 Tenn. at 232-33): If the rule were, however, exclusively of feudal origin, its authority would not be thereby diminished, nor would that circumstance justify courts of justice in withholding obedience to it, or in refusing to give to it its full effect. *** [at 235] [A]s our ancestors brought the rule …, and it must continue, until abrogated by statutory enactment … . … [e]very rule of law once established continues to be so, whilst the subject of it exists, until altered by solemn act of legislation. (emphasis added). Faris has been cited in Tennessee by the Tennessee Supreme Court, recently, as extant precedent. 7 See Mays By and Through Mays v. Henderson, 1992 WL 117058 (Tenn. Ct. App. 1992) at *3 (A. p. 151).

7 Smith v. State, 385 S.W.2d 748, 750 (Tenn. 1965); Quarels v. Sutherland, 389 S.W. 249, 251, 20 A.L.R.3d. 1103 (Tenn. 1965). 22

In re Hickey In re Hickey, 258 S.W. 417, 429 (Tenn. 1923) (hereinafter “Hickey”) is never mitigated controlling stare decisis precedent. Though repeatedly brought to the attention of all the adjudicators below, it was never alluded to by any adjudicator below. In addition to Hickey, Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989)(hereinafter “Ramsey”) is precedent that controlled when the recusal motion was filed by Petitioner/lawyer. The Tennessee Supreme Court stated, in Ramsey, as follows (771 S.W.2d at 121): As stated [by the Tennessee Supreme Court], in … Hickey, …, 258 S.W. 417, 429 (1923), “the members of the bar have the best opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. The rule contended for by the prosecution [disciplinary authority], if adopted in its entirety, would close the mouths of all those best able to give advice, who might deem it their duty to speak disparagingly.” (emphasis added) When Petitioner/lawyer filed the recusal motion, neither Ramsey nor Hickey had ever been diminished as stare decisis precedent. And, Ramsey and Hickey are as far from the so-called “objective” “reasonable attorney” standard (with no evidence) as is possible to be. 23

Both the Massachusetts Supreme Court8 and the Ohio Supreme Court9 when adopting the “objective” “reasonable attorney” so-called standard cited Ramsey as an example of a case that was the anthesis of the so- called “objective” “reasonable attorney” standard. Ramsey is among the most often cited authorities on what is and what is not the prevailing law on attorney free speech rights. See the following as examples: 1. Hinkie, J.A., Free Speech And Rule 3.6: How The Object Of Attorney Speech Affects The Right To Make Public Criticism, 20 Geo. J. Legal Ethics 695, 701 n. 47 (Summer 2007); 2. Day, T.R., Speak No Evil: Legal Ethics V. The First Amendment, 32 J. Legal Prof. 161, 170, 176 (Spring 2008); 3. Tarkington, M., The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, 97 Geo. L.J. 1567, 1572 n. 27 (Aug. 2009); 4. DeFrain, S., Grievance Administrator V. Fieger: The Tenuous Link Between Attorney Silence And Public Confidence In The Legal System, 54 Wayne L. Rev. 1823, 1839 n. 51, 1832 n. 67, 68 (Winter 2008);

8 In re Cobb, 838 N.E.2d 1197, 1211-12 (Mass. 2005) (hereinafter “Cobb”).

9 Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 422 (Ohio 2003) (hereinafter “Gardner”). 24

5. Sparling, T.A., Attorneys Un-Muzzled: Does Republican Party Of Minnesota V. White Invalidate The Use Of An Objective Standard In Cases Involving Extrajudicial Speech Criticizing A Judge?, 30 Hamline L. Rev. 59, 69 n. 56 (Winter 2007); 6. Butcher, A., MacBeth, S., Lawyers’ Comments About Judges: A Balancing Of Interests To Ensure A Sound Judiciary, 17 Geo. J. Legal Ethics 659, 668 n. 78, 669 n. 94 (Summer 2004); 7. LeClercq, F.S., The Process Of Selecting Constitutional Standards: Some Incongruities Of Tennessee Practice, 61 Tenn. L. Rev. 573, 584 n. 54 (Winter 1994); 8. Bridge, E.A., Professional Responsibility And The First Amendment: Are Missouri Attorneys Free To Express Their Views?, 57 Mo. L. Rev. 699, 701 n. 17, 723 n. 237 (Spring 1992); 9. Attorney’s criticism of judicial acts as ground of disciplinary action; 12 A.L.R.3d 1408 (Cumulative Supp.); 10. Mashburn, A.R., Making Civility Democratic, 47 Hous. L. Rev. 1147, 1192 n. 232 (Winter 2011); 11. Beezy, B., An Alternative Approach To Evaluating Attorney Speech Critical Of The Judiciary: A Balancing Of Court, Attorney, And Public Interests, 1 UC Irvine L. Rev. 1221, 1233 n. 94, 1249 (Dec. 2011); 25

12. Jewel, L.A., I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, 33 Hastings Comm. & Ent. L.J. 341, 357 n. 113, 358 n. 102 (Spring 2011); 13. Wright, D.W., In Re Holtzman: Free Speech Or Professional Misconduct?, 9 Touro L. Rev. 587, 598 n. 60 (Spring 1993); 14. Hudson, Jr., D.L., Lawyers Sanctioned For Critical Barbs, 3 A.B.A. J. E-Report 3, 3 NO. 39 A.B.A. J.E-Report 3 (Oct 2004); Petitioner/lawyer respectfully suggests that to truly appreciate the holding in Ramsey, it is necessary to examine closely the precedent on which Hickey relied and, explicitly incorporated into the common law of Tennessee. In Hickey, the Tennessee Supreme Court was presented with facts involving a lawyer who admittedly had animosity toward a sitting judge and who, admittedly and unabashedly, attacked the judge verbally in a newspaper article. The Tennessee Supreme Court summarized the verbal attack as follows (258 S.W. at 425): He [accused lawyer] denied that he ever charged Judge Drinnon with being corrupt. He admitted that … [his] criticisms mainly to that of incompetency, insufficiency, and inability to properly preside over the circuit court. The defendant [accused lawyer] … took the position that he was protected … by … freedom of speech … . … . 26

*** The next question is: Was the … [disciplinary authority] justified, under the law and the facts, in suspending the defendant [disciplined lawyer] from the practice of law in the courts of this state for 30 days? (emphasis added). Hickey did not ground the free speech right of the attorney in the First Amendment; rather, it anchored its conclusion in the Tennessee Constitution, Article 1, § 19 (hereinafter “Art. 1, § 19”). Hickey states as follows (258 S.W. at 429): In our opinion, the facts [because false] did not justify the [disciplined lawyer’s] publication of the article … . Our constitutional (Art. I, § 19) provision as to free speech is as follows: “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. * * *” Article 1, § 19. (ellipses in original). Hickey platformed Tennessee’s stare decisis precedent on words quoted (A. p. 149-51) from Ex parte Steinman, 3 Penn. 220, 239 (1884) and People v. Green, 3 Penn. 374, 378 (1884) opinions. 27

Hickey held that a lawyer could not constitutionally be suspended for 30 days for “going after” the judge. The Tennessee Supreme Court reasoned, in Hickey, as follows (258 S.W.2d at 428): If the defendant [accused lawyer] were acting within his constitutional rights in criticizing the court, then it would follow that his conduct was not such as to render him unfit to practice his profession. (emphasis added). Pure Speech v. Nonspeech/Incidental Speech Diligent search finds no case reported where a lawyer has been disciplined by a suspension for communicating non-invective words, conveying information without abusive diatribe, attacking the judge and/or accompanying nonspeech act/omission. The strongest adjectives the Opinion uses to describe Petitioner/lawyer’s words are “pejorative” and “derogatory” used to describe the methods and work- product of the intermediate appellate adjudicator; no words were used to sully the character of any judge. The Opinion affirms the Hearing Panel’s findings of fact but fails to note that the Hearing Panel adjudicated that Petitioner/ lawyer did NOT engage in any DISHONESTY and NOT MISREPRESENT anything to any court. The unreversed finding by the Hearing Panel is that a so-called “reasonable attorney” (A. pp. 82-83, 15, 23, 28, 29, 34, 42, 45 n. 1, 62; supra at 9, 10, 12, 13-14, 18; infra at 28, 34) would “believe” the quoted words are false. 28

The upshot of the Tennessee Supreme Court- affirmed no dishonesty/no misrepresentation holding of the Hearing Panel is that, if the so-called “reasonable attorney” is found by the Hearing Panel to have “believed” that the honest representations of Petitioner/lawyer were false, Petitioner/lawyer’s protected speech would be treated as false. Petitioner/lawyer was sanctioned, by a suspension of law license for speech, not for nonspeech, not for conduct incidental to speech. Without a “false” statement knowingly made, a suspension sanction is impossible.10 Never before has this Court decided an attorney discipline case where the discipline was imposed for non-invective words, conveyed for no purpose but communication, with zero nonspeech tinge. The First Amendment protects pure speech. Communication which is not speech can be censored when it is inextricably conjoined with conduct that threatens a governmental interest that outweighs the value of the conjoined speech. Every case the Opinion cites as precedent authorizing Petitioner/lawyer’s punishment involved nonspeech and/or incidental speech.

10 The Hearing Panel imposed a public censure sanction which Petitioner/lawyer did not appeal for pure expediency reasons. The public censure did not carry with it an adjudication that Petitioner/lawyer made a false statement; to the contrary, it included an adjudication that Petitioner/lawyer engaged in no dishonesty and no misrepresentation. The BPR appealed seeking the prerequisite adjudication of a false statement to enhance the sanction to a suspension. 29

The Sixth Circuit homed in on the core issue in Fieger v. Michigan Supreme Court, 553 F.3d 955 (6th Cir. 2009) by the following words at 964-65: In assessing Fieger’s speech, the court explained that: [t]o call a judge a “jackass,” a “Hitler,” a “Goebbels,” a “Braun” and to suggest that a lawyer is “declar[ing] war” on them and that the judge should “[k]ill [the lawyer’s] ass,” or should be anally molested by finger, fist, or plunger, is, to say the least, not to communicate information; rather, it is nothing more than personal abuse. We conclude that such coarseness in the context of an officer of the court participating in a legal proceeding warrants no First Amendment protection when balanced against this state’s compelling interest in maintaining public respect for the integrity of the legal process. United States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). (emphasis added). Id. at 142 (emphasis added). *** Indeed, the court specifically noted that “lawyers have an unquestioned [First Amendment] right to criticize the acts of courts and judges.” Id. at 144 (citing In re Estes, 355 Mich. 411, 94 N.W.2d 916 (1959)). In Fieger’s case, however, the court determined that his remarks about participants in a pending legal proceeding were so unambiguously “vulgar and crude” as to be 30

undeserving of constitutional protection. Fieger, 719 N.W.2d at 144. (emphasis added). The recusal motion here includes not a single crude or vulgar word. The words of Fieger were all crude and vulgar. In all prior cases where the Tennessee Supreme Court has disciplined lawyers who asserted a First Amendment defense, the denial of First Amendment protection has come in situations where the communication (speech) was incidental to the discipline for nonspeech diatribe or speech inextricably conjoined with sanctionable acts/omissions. In United States v. O’Brien, 391 U.S. 367 (1968), in part pertinent here, the Court opined as follows (at 376): This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. (emphasis added). Gentile Void For Vagueness

By dicta (not a holding), this Court has conceded that there are some constrictions on attorneys’ First Amendment speech rights in some disciplinary situations. But this Court has never decided how pervasive the constrictions are or what standards control how to identify which statements are First Amendment-protected and which are not. 31

In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (hereinafter “Gentile”), this Court reversed the Nevada Supreme Court’s imposition of a lawyer sanction for the lawyer’s speech because the Nevada’s statute on which the sanction was based was void for vagueness. In Gentile (at 1071), this Court included dicta that “in the courtroom itself, during a judicial proceeding” (emphasis added), a lawyer’s free speech rights are more limited than in other contexts. This Court did not hold that there are no First Amendment protections for speech “in the courtroom itself” or anywhere else. Although this Court has never said that free speech rights are “extremely circumscribed” during a judicial proceeding, the Opinion attributes this Court with having held (A. p. 21) that, in that context, free speech rights are “extremely circumscribed.” Unable to be overemphasized is the reality that nothing about the recusal motion occurred “inside” of a “courtroom” nor was there to be anything reasonably describable as a “judicial proceeding.” Moreover, the Opinion unmistakably misquotes (A. p. 21) Gentile’s dicta, by leaving out, with no ellipsis to indicate the deletion, the words “in the courtroom, itself … .” (emphasis added). Respectfully, a reasonable reading of this Court’s “in the courtroom itself” is to exclude statements physically outside the courtroom itself from the ambit of the dicta, i.e., make sure no person thinks that this Court was making any ruling or even speaking dicta about any speech outside the courtroom itself. In the 32 days of Gentile, the Chicago Seven debacle “in the courtroom itself” was still fresh in mind.

Conclusion This case comes at a time, probably like no other in the history of the United States, when First Amendment free speech protections for pure speech are being severely (even violently) threatened. The arenas and methods for personal attacks on those who use pure speech to express contrarian viewpoints seems unending and the harm inflicted by the attacks is varied but clearly intended to be personally damaging. In this case, the squelcher is the Opinion. The clashing ideas are notable by a discernable line of demarcation. Petitioner/lawyer has used pure speech to advocate strongly, for a client in a pending case, that result-oriented adjudication is judicial misconduct (described by glaring analogies) which constitutionally requires the adjudicator to be recused from further adjudication of the issues in the case before the adjudicator. Petitioner/lawyer respectfully argues that the judicial establishment in Tennessee, evidenced by the Opinion, has imbedded result-oriented adjudication as a tolerable, even if illegitimate,11 adjudication method accessible to Tennessee’s adjudicators, if the trial and appellate adjudicators combine to deem it necessary or convenient. Petitioner/lawyer advocates that use of result- oriented methods to adjudicate is deliberate (not

11 Lee Medical v. Beecher, 372 S.W.3d 515, 523-25 (Tenn. 2010). 33 merely a mistake). Petitioner/lawyer argues that his advocacy, in the context of a real case (not a lecture) caused the judicial establishment, under the guise of undermining the public’s confidence in courts, to pull all of the stops to squelch Petitioner/lawyer. By pulling all the stops, Petitioner/lawyer refers to the following: 1. Even though Petitioner/lawyer cordoned off the adjudicator, with caveat words (supra at 2-4), to make certain that it could not be said that Petitioner/lawyer personally attacked or defamed the result-oriented adjudication’s adjudicator, the BPR and the Tennessee Supreme Court mischaracterized Petitioner/lawyer’s recusal motion as a personal attack defaming the integrity of the adjudicator, rather than a cutting attack on the adjudicator’s work-product and methods of adjudication; 2. After mischaracterizing the recusal motion as a personal attack on the adjudicator, rather than the adjudicator’s methods and work-product, the Opinion arbitrarily accuses Petitioner/lawyer of attacking the integrity of the adjudicator by “false” statements, which the BPR Hearing Panel (affirmed by the Opinion) held to involve no dishonesty and no misrepresentation, raising the question as to how a statement can be false but not dishonest and without misrepresentation; 34

3. Since, to suspend the law license of Petitioner/lawyer, false statements are required, the Opinion went to extremes to adjudicate the statements to be “false,” even though neither dishonest nor misrepresentations, because a fictitious so- called “reasonable attorney,” without hearing an iota of proof, would “believe” that the honest representations were false; 4. The Tennessee Supreme Court used cases involving only nonspeech and incidental speech as authority for suspending Petitioner/lawyer whose speech, beyond the pale of dispute, is nothing but pure speech; 5. In an effort to garner authority, by an undeniable and objectively discernable misquote of this Court’s dicta in Gentile, gives the appearance that the Opinion is sanctioned by this Court’s precedent to rule as the Opinion rules when, in fact, this Court has never so ruled; 6. The Tennessee Supreme Court created a never-before-heard-of rule of constitutional law, in open defiance of stare decisis Tennessee precedent, that even the supreme courts of Massachusetts and Ohio ruled to be contrary to the so-called “objective” reasonable attorney standard, and applied the never-before-heard-of rule to Petitioner/lawyer, retrospectively, even though the Tennessee Supreme Court did not overrule the currently extant precedent, in Hickey; and 35

7. In spite of this Court’s breath of new life into the recusal motion, by Williams, supra at 20 n. 6 and Rippo, supra at 20 n. 6, the Opinion appears designed to squelch use of the constitutionally protected recusal motion by making its access to raise constitutional issues about result-oriented adjudications prohibitively risky for lawyers. It is, again, with utmost respect for the Tennessee Supreme Court and each of its Justices, Petitioner/lawyer argues that, by its Opinion, the Tennessee Supreme Court opted for an in terrorem12 message to Tennessee lawyers as a means to squelch advocacy like Petitioner/lawyer’s motion to recuse. Result-oriented adjudications in Tennessee are not expected to be fine-toothed combed, by an astute lawyer who is intimately familiar with the record and the law,

12 Quelling, discouraging, chilling, stopping, retarding persons from communicating thoughts out of fear that expression of the thoughts will cause governmental to be used to punish them. Weaver v. U.S. Information Agency, 87 F.3d 1429, 1441, 1449 (D.R. Cir. 1996); Cameron v. Johnson, 381 U.S. 741, 756 (1965) (White, J disserting); Bates v. State Bank of Arizona, 433 U.S. 350, 382 (1977) citing NAACP v. Button, 371 U.S. 415, 430 (1963); Bigelow v. Virginia, 421 U.S. 809, 816, 818 (1975); Keyishian v. Board of Regents of the University of New York, 385 U.S. 589, 601-02 (1967); Jacobs v. New York, 388 U.S. 431, 433-38 (1967); Secretary of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947, 948, 956-58, 967, 977 (1984); Citizens United v. Federal Election Commission, 558 U.S. 310, 311-12 (2010); Massachusetts v. Oakes, 491 U.S. 576, 577, 582-83, 586-87 (1989); United States v. Alvarez, 569 U.S.709, 712, 717, 723, 733, 737, 739, 752, 754 (2012); Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 763, 771, 780-81, 789- 90, 792-94 (1985). 36 to unearth and broadcast that the result-oriented adjudication is a result-oriented adjudication and all that is implicated because it is result-oriented. Petitioner/lawyer respectfully argues that the in terrorem approach caused the Tennessee Supreme Court to impose the severe punishment of a suspension of Petitioner/lawyer’s license to practice law. To further squash the possibility of widespread claims like and in the context advocated by Petitioner/lawyer’s pure speech in the recusal motion, the Tennessee Supreme Court adopted the never- before-heard-of rule that prohibits any evidence as to whether a lawyer’s statement is true or false, other than the statement itself, leaving the truth or falsity to be determined by the “belief” of a fictitious so-called “reasonable attorney.” By this approach, the Opinion seeks to escape application of First Amendment free speech protections by creating an artificially conceived means to access the false statements exception to free speech. Judge Clay described what a result-oriented adjudication looks like, in real life, by his dissent in Gohl v. Livona Public Schools, 836 F.3d 672, 698 (6th Cir. 2016) reh. en banc den. Nov. 15, 2016. There, Judge Clay, obviously not intending to impugn the integrity of his fellow judges, labeled the work-product of his co-laboring judges as having “fundamentally” misapplied “well-settled” law, “ignor[ed] important facts,” “disregard[ed]” evidence, “sidestep[ed]” the Supreme Court’s “clear direction,” and that the two judges on the panel with Judge Clay were “lost” in “basic and fundamental” civil procedure, 37 all of which Judge Clay opined “revealed” the two co- laboring judges’ intent to “reach [their] own conclusions” by a “result-oriented” ruling. (emphasis added) To make the point here, if it is presumed that Judge Clay’s description is accurate, is it even possible that there is a jurist in the country who would not concede that result-oriented adjudications are unconstitutional and, if allowed to be an acceptable adjudication method, pose a major threat to rule of law? The shout-down and violence threat to free speech in the marketplace, so prevalent in society, today, is a major societal problem. But, the much, much greater threat is official quashing which results from sources like the Tennessee Supreme Court’s Opinion. When the power of the government of Tennessee is brought to bear on every lawyer in Tennessee, to keep the citizens of Tennessee in the dark about result- oriented adjudications occurring in Tennessee’s courts, the threat rises to the level of official censorship that, by comparison, pales the shout-down and violent suppression in the lecture halls and streets. For this reason, Petitioner/lawyer respectfully requests this Court to grant this petition and measure what has happened in this case by the dictates of the First Amendment free speech and the Fourteenth Amendment substantive and procedural due process rights guaranteed Petitioner/lawyer. After granting this petition, to restore rule of law, Petitioner/lawyer urges the Court to hold that States, through their supreme courts’ disciplinary authorities, cannot run roughshod over the First Amendment free 38 speech rights of lawyers, in defiance of Fourteenth Amendment due process, under the thinly veiled rhetoric of “undermining public confidence in the courts” and “a threat to the independence of the judiciary.” Petitioner/lawyer respectfully argues that the transparent purpose of the opinion is to force acquiescence to the judges’ wish that the status quo be protected from the throes of the marketplace of ideas, except, perhaps, in a debating society context. Advocacy against the protected status quo in the courthouse, in a real case, before real judges who must adjudicate what is before them, is too great a temptation to restrain honest adjudicators with unimpeachable integrity from use of raw force to turn back the speech, First Amendment to the contrary notwithstanding. If adjudicators are, for what they deem is the “greater good,” authorized to abuse the power of State in this way, The Honorable Thurgood Marshall would never have been a Justice, and segregation of the races would remain, as it was for centuries, status quo. Respectfully submitted,

Larry Edward Parrish Parrish Lawyers, P.C. Counsel of Record 1661 International Dr. Suite 400 Memphis, TN, 38120 901-603-4739 [email protected]

Counsel for Petitioner