Forget free speech; in court filings you’d better watch your language

If a crusty 70-year-old Boulder City man had marched outside the federal courthouse with a sign calling bankruptcy court "a brothel" and U.S. Bankruptcy Judge Linda Riegle "a madam" who "pays the working girls and provides the condoms," his First Amendment rights would have been protected.

Unfortunately, Curtis Clark put his inflammatory language in documents filed with the court. Now he's facing potential criminal contempt sanctions.

U.S. Bankruptcy Judge Bruce Markell has ordered Clark to show cause why he hasn't violated federal rules and why he shouldn't be referred to a federal district judge for criminal contempt proceedings.

Clark, a retired petroleum engineer, is one of the investors in USA Capital who hopes to get something back when the company emerges from Chapter 11 reorganization bankruptcy. Like many of the 6,500 investors in the Las Vegas-based mortgage loan company, he's frustrated.

He said he invested about $200,000, or half his life savings, in USA Capital Diversified Trust Deed Fund. He objects to the fees paid the attorneys, managers and other professionals and contends Riegle's rulings mean there will be less for investors. He called those professionals "court-appointed parasites."

"I only regret the wording I used," Clark told me. "The contempt will never go away."

Not unrealistically, Clark thought the First Amendment right to free speech protected him when he submitted written documents lashing out at the court, the judge and others involved in the bankruptcy filed in April 2006.

He may be wrong.

ACLU attorney Allen Lichtenstein said he couldn't comment on the specific case because he didn't know the facts.

"But the general principle is that outside of courtroom proceedings, the First Amendment rights, even the right to call a judge names, is quite clear," he said. "But in the process and the courtroom, the judge has a fair amount of discretion to prevent actions and statements that would be disruptive to the proceedings."

The show cause hearing will be before Markell at 9:30 a.m. on May 27 in the Foley Federal Building. Markell has a history of being strict with attorneys and unafraid to give civil sanctions. Attorneys Randolph Goldberg and Shalom Rubanowitz recently joined the Sanctioned Attorneys List. (Check out my blog for details.)

I'm guessing, unless Clark loses his temper at the hearing, he'll get a lecture and the message will be sent that debtors can't write any old thing they want in a document filed with bankruptcy court.

Federal court rules say you can't file documents for any improper purpose, such as harassment or just to be inflammatory.

If Markell finds Clark's filings scandalous or defamatory, they can be stricken from the record and his future filings may be banned, unless he gets the court's permission.

"Mr. Clark's comments were inflammatory. Questioning the court's integrity by associating one of its judges with vile and illegal acts is at best questionable advocacy; at worst, it is sexist and puerile drivel that has no place in communications with the court," Markell wrote in his distinctive style.

Why criminal sanctions? The court's civil contempt powers are limited to violating an order of the court, but Clark didn't do that. Since bankruptcy courts don't have the power of criminal contempt, Markell would have to refer the case to district court for criminal sanctions.

Addressing the First Amendment issues, the judge said Clark could have written his comments as a letter to the editor and they would have been protected. (However, I seriously doubt that they would have been published.)

Clark could have made the comments during a court hearing and they might have been protected. But by opting to publish his comments in the courthouse by filing with the clerk's office, he placed himself in an arena the court can regulate, Markell wrote.

Court rules permit debate but do not condone "irrelevant and vituperative calumny," Markell wrote, sending me to the dictionary for calumny (a false statement maliciously made to injure someone's reputation).

Anyone who knows Judge Riegle knows she's not the madam kind. Would Clark have called a male judge a pimp?

Clark conceded his language was inappropriate and admitted he's worried about the May 27 hearing.

"In a sense, they're trying to force me to shut up, and they're doing it through my pocketbook. I can't fight it indefinitely."

Actually, he just needs to take it outside the courthouse.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison/.