Napolitano’s Fox News Wiretapping Comment is Freedom of Speech

There is so much heated passion surrounding Donald Trump that sometimes even very smart lawyers can lose their perspective.

Judge Andrew Napolitano speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Gage Skidmore

There is so much heat and passion surrounding Donald Trump that sometimes even very smart lawyers can lose their perspective. That is what happened last week when some members of the New Jersey bar warned that Judge Andrew Napolitano might be exposed to an ethics complaint because of his remarks on Fox News suggesting that the British government conspired with President Obama to wiretap Trump.

The outcry against Napolitano has become more absurd than the tweet from the president asserting the wiretapping allegation in the first place. As a Fox commentator, it is Napolitano’s job to provoke reactions and to teach something about the law by entertaining a broad based television audience. Napolitano performs that job brilliantly.

Napolitano’s analysis of current events comes from a crisp and clearly articulated Libertarian perspective. His views are something you might expect to hear from Thomas Jefferson if he were alive and broadcasting at Fox. Like Jefferson, Napolitano holds an absolutist defense of personal liberty and comes from the perspective that the Constitution protects individual rights FROM excessive government intrusion.

Obviously, Napolitano’s views cause him to have no shortage of detractors. However, when his critics attack the man rather than his views, they go too far.

Napolitano, a former New Jersey judge, is still a member of the New Jersey Bar, although he works primarily as a legal analyst for the media. His allegation that Obama asked a British intelligence agency to wiretap then-presidential candidate Trump caused controversy, not because of the allegation but because the President tweeted it as fact.

Not many news commentators get their remarks tweeted by the President of the United States and then become an international sensation. Instead of suspending Napolitano, Fox News should have given him a raise.

Fox News did the right thing by acknowledging that there was no evidence to support Napolitano’s claims.  The matter should end there. Suspending him was overkill.  Even worse are the allegations that Napolitano may have violated the rules of attorney ethics.  Those allegations are not only unfair, but they baselessly mischaracterize the nature of attorney ethics and demonstrate little understanding of the First Amendment.

Potential Ethical Violation 

In most cases, a client or former client files an ethics complaint against an attorney. However, under New Jersey’s Rules of Professional Conduct (RPC), other lawyers can also sound an alarm on their colleagues. Rule 8.3 states:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

A group of law professors recently relied on Rule 8.3 to file an ethics complaint against Trump advisor Kellyanne Conway. It alleged that Conway engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of RPC Rule 8.4(c). In support, the complaint cited Conway’s reference to the nonexistent “Bowling Green Massacre” and her use of “alternative facts.” Speculation is now growing that Napolitano could also face similar charges.

The charges against Conway are a stretch, but using Rule 8.3 against Napolitano would be an absurdity.  If someone thinks they have standing to do so and they survive a challenge to their standing, there is still a matter of the First Amendment to deal with.

Free Speech Protections

To pass muster under the First Amendment, governmental action based upon the content of speech must serve a compelling state interest, and be as narrowly tailored as possible to protect that interest. In the case of Napolitano, the state may arguably have an interest in prohibiting its licensed attorneys from making misleading statements on national television, but it would be a stretch to characterize the state’s interest in statements made outside of the practice of law as “compelling.” Even if it were, such an interest would clearly be outweighed by the interest in protecting free and open debate by members of the media, particularly with respect to political issues.

The bottom line is that many public officials and media commentators are also licensed attorneys. When they are not engaged in the practice of law and commenting on decidedly political matters, their freedom of speech should not be subjected to a heightened standard simply because they are members of the bar.

Who would ever tune in to listen to a lawyer commentator if they were barred from provoking their audience?  For that matter, how many of the nation’s most talented and popular law professors would retain their licenses to practice law?  Good teachers provoke thought.  Good Television commentary provokes reactions—a tweet by a President and a reaction from the British Government is GREAT television commentary.

Put Napolitano back on the air and give him a raise!

Donald Scarinci is a managing partner at Lyndhurst, NJ-based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Clarification (May 2): A previous version of this opinion column said members of the New Jersey State Bar Association had suggested Napolitano could face an ethics complaint. The association has taken no such position, although some members of the New Jersey bar at large have. Napolitano’s Fox News Wiretapping Comment is Freedom of Speech