Conservative attorney Chris Crowley, a decorated Gulf War veteran who ran for a state attorney position in Florida, is appealing a recommendation to suspend his law license for 60 days over speech he made during the campaign. His attorney, Scott Tozian, argued the appeal before the Florida Supreme Court last week.
A referee for the The Florida Bar recommended the suspension due to Crowley referring to his opponent Amira D. Fox, who eventually won the race for state attorney’s office in Florida’s 20th Judicial Circuit, as “corrupt” and “swampy” and for observing that she had “close family ties to the [Palestine Liberation Organization (PLO)] terrorist organization.”
The referee said he violated R. Regul. Fl. Bar 4-8.2(a) of the Rules of Professional Conduct. That rule states, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.”
Tozian said the rule was “facially unconstitutional” because it infringes on the First Amendment right to free speech. He stated that the Supreme Court established the standard for free speech in New York Times v. Sullivan. “They said that the public issues should be uninhibited, robust and wide open, and they may include vehement, caustic, sometimes unpleasant attacks on government and public officials,” Tozian said.
He contrasted it with a judicial race, since judges are held to much stricter rules.
He said Crowley (pictured above) called Fox corrupt because she “admitted she had to return $1,500 to the state for taking excessive leave time.” He said Crowley did not attack her religion because he never mentioned her religion or that she was Palestinian, only that she had ties to the PLO.
He noted that this was a new type of case that the courts had never addressed. Addressing the recommended 60-day suspension, Tozian said it wasn’t appropriate considering Crowley had an unblemished 20-year career as a prosecutor, so any discipline should merely be an admonishment.
Next, bar counsel Mark Mason provided his oral argument. He said Crowley made “several false statements accusing his opponent of corruption.” He said the discipline doesn’t violate the First Amendment since there is a “compelling interest in instilling public confidence.”
Justice John D. Couriel asked him whether it would be different if Crowley were running for governor, and whether it was “identical to a judicial election.” Mason responded yes to the latter, “any candidate for legal office.”
Justice Charles T. Canady expressed his disagreement. “Part of this reality here is that judges are in a different category. … But then you’ve got these partisan elections for state attorney, for attorney general, and it just seems like having the same kind of rules in both is a little odd,” the judge said.
He elaborated, “So everybody running for attorney general in Florida, has got to be worried about. They make some little misstatement, or some exaggeration, that is going to result in them being in trouble.” Canady expressed concern that candidates could be held liable for campaign materials coming from others, such as political parties.
Chief Justice Carlos G. Muniz also pushed back on Mason. He said he didn’t think he agreed that saying “Amira D. Fox is corrupt” is a factual statement, rather than an opinion.
Mason next claimed that Crowley also violated R. Regul. Fl. Bar 4-8.4(d) by engaging in “conduct in connection with practice of law that’s prejudicial to the administration of justice. So in terms of narrowly tailored, that rule is narrowly tailored. There’s no argument to the contrary. The narrowly tailored argument is strictly related to 4-8.2(a) [which] is [also] narrowly tailored.”
Rule 4-8(d) has been under attack in recent years as a broad and vague rule often used to target conservative attorneys.
Justice Meredith Sasso pushed back, “Why is it narrowly tailored if it applies to both legal offices and others?”
For his 2-minute rebuttal, Crowley testified, “The Florida Bar says the Constitution doesn’t apply to attorneys.”
He asked the justices to stand up for free speech, use a “strict scrutiny” standard, and “support the Constitution.” He stated that the referee had a conflict of interest, which she had admitted to.
He reviewed one of the accusations against him, that he was not telling the truth when he said Fox had a 39 percent conviction rate. He explained how he came to that percentage, by talking to the data expert in her office and analyzing data from the counties in the district. He said there is a “debate” conducted in “good faith” about how that number is determined.
Crowley said Fox held herself out on her website as running the office when she worked there, so the office’s conviction rate is representative of her record.
During Mason’s rebuttal, Justice Carlos G. Muñiz objected to his broad standard for integrity.
“It seems like, if you read integrity the way you do that would sort of just swallow up, it’s really not a limiting word,” the judge explained.
He said the rule was meant to apply to court proceedings, not political campaigns.
“I mean, you don’t think that the main point of this rule is to address things that are going on in the context of the litigation? You know, the judge is this, or that the jurors are this, or that … my opposing counsel is whatever?” the judge added.
Mason said the 39 percent claim was false since Fox didn’t handle all of those cases for the office.
Canady retorted, “You’re ignoring what he said about her position in the office. And it is not an unreasonable thing to say if you’re, if you claim responsibility for running an office, that you get blamed for things that aren’t going well in the office. I’m mystified by the blindness to that quite candidly, the blindness to it.”
He added, “I have real trouble understanding that in the context of a political campaign, where that just flies in the face of a lot of a tradition of the … campaigns and [how] the First Amendment works in this country.”
Couriel asked Mason how the success rate for prosecutions should be calculated, since Mason asserted that it was falsely calculated.
Mason responded, “Number of cases indicted, number of informations filed. It’s hard for me to really just establish how we would calculate that figure.”
Muñiz answered, “…You’re kind of making a technical point about how we’re supposed to, like, what is, what would the listener understand conviction rate to mean? And I would think that if you’re going to prosecute someone for making a false factual statement, there would have to be some sort of understanding as to what is the quote unquote fact that we’re talking — what is the factual sort of measure of this, and is this false in relation to that standard, right?”
Muñiz also expressed doubt about whether labeling someone as “corrupt” compromises the integrity of the profession. “What does that even mean?” the judge asked,
He concluded, “It seems like you should have to establish that something’s false first, before someone then has to defend themselves.”
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on X/Twitter. Email tips to [email protected].
Photo “Chris Crowley” by Chris Crowley, Conservative Republican. Background Photo “Florida Bar Building” by The Florida Bar.
