92. Prior restraint in Massachusetts
Mary McCauley Manzi, a family court judge in Methuen, Massachusetts, effectively prohibited the publication of a book containing a chapter that is highly critical of her. (Methuen is a town of 43,000 located 27 miles north of Boston, according to its official website, which features the grinning face of its mayor, whose last name is the same as the judge's.)
Apparently the judge prohibited the author from publishing facts about his and his son's own lives, on the ground that those facts are also included in "impounded" court files regarding his divorce and child custody battle. It's hard to be sure of the details because "[a]long with the complete case file, Manzi impounded her decision ..., not to be accessed until 2021", according to the Lowell Sun.
Over at the Volokh Conspiracy, the Maestro invited readers to defend the ruling, but no one could come up with even a halfway-convincing argument that it might conceivably be lawful. The Supreme Court has long recognized that the first amendment "afford[s] special protection against orders that prohibit the publication or broadcast of particular information or commentary - orders that impose a 'previous' or 'prior' restraint on speech." The phrase comes straight out of Blackstone, who explained the underlying principle:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.
Tocqueville devoted a chapter of Democracy in America to the subject, showing that once one starts the journey that begins with the government reining in the worst abuses of the press, one inevitably goes "from extreme independence to extreme servitude without finding a single spot where it was possible to rest on that long journey." (I'm quoting the Lawrence translation; the link is to an earlier, public-domain translation.)
It's hard to believe that any lawyer could become a judge without being familiar with this most basic of all constitutional principles. So we have to assume that Judge Manzi knew perfectly well she was violating the first amendment. What would make a judge do something like that? The answer, of course, is that Judge Manzi was unhappy about finding herself the subject of a chapter in a book entitled Exposing the Corruption in the Massachusetts Family Courts.
Which is just another way of saying she also violated Canon 3(E) of the Massachusetts Code of Judicial Conduct, which reads: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned".
My old ethics professor Steven Lubet summed it up: "what we have, in fact, is an unconstitutional prior restraint coupled with an unprofessional failure to recuse."
So what should the Massachusetts Commission on Judicial Conduct do about Judge Manzi? I don't have any hesitation in saying she should be removed from the bench. Violating the first amendment in such a basic way is inexcusable: either Judge Manzi violated it deliberately or she's too dumb to keep breathing. But to do so when she had an absolute, no-question-about-it duty to disqualify herself from even hearing the case goes a long way toward proving the truth of the banned book's outrageous title.
Friday, March 31, 2006 at 10:24PM in Judging the judges
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