Gavel Down on Free Speech: The Kassenoff v. Harvey Flashpoint
Authoritarian Slide: The Expanding Judicial Muzzle on America's Legal Eagles
By Richard Luthmann
A recent ruling in the Kassenoff v. Harvey federal court case pending in the Northern District of Florida has become a flashpoint for a broader debate on the First Amendment, the rights of lawyers, and the authoritarian slide of the courts. The case underscores a growing concern: are American courts becoming instruments of control, silencing the very voices they're meant to protect?
What we are now witnessing is not just an isolated incident of “law-fare” where a New York lawyer is suing a TikToker for an ungodly nine-figure sum, seeking to force him into financial peril and effectively silencing his voice.
This case has become a litmus test for the health of American democracy and the robustness of its protections for free speech.
The Background
The backdrop of Kassenoff v. Harvey is as compelling as the legal arguments it has sparked. Allan Kassenoff, a New York lawyer, found himself embroiled in a bitter legal and public relations battle against Robbie Harvey, a social media influencer with a significant following.
The dispute centered around allegations of abuse and manipulation within the context of a divorce and custody battle, with Harvey amplifying the voice of Kassenoff's ex-wife, leading to a public outcry and professional repercussions for Kassenoff.
The story was broken and covered extensively by investigative reporter Frank Parlato of the Frank Report:
High-Profile Divorce/Suicide Saga Continues: The Inside Story of the Kassenoffs as Alleged in Complaint
Kassenoff Attorney Gus Dimopoulos Withdraws as Plaintiff in Lawsuit Against Robbie Harvey
Unpacking the Defamation Claims in Kassenoff v. Harvey: What You Need to Know
TikTok Star Robbie Harvey Plans Anti-SLAPP Defense Challenging Kassenoff’s $150 Million Defamation Lawsuit
Kassenoff v Kassenoff: Anatomy of a Divorce and Custody Case in Westchester Family Court
Is Catherine Kassenoff Dead? Allan’s Friend Claims She’s Alive and Laughing at His Ruin
Greenberg Traurig Scrubs Allan Kassenoff From Website
Kassenoff’s Law Firm Defends; Announces Allan Took ‘Leave’ to ‘Focus on Family’; FR Will Assist in Showing the Truth
How Lawyer Allan Kassenoff Used Family Court to Prevent Catherine Kassenoff From Seeing Their Children & Who Helped Him ‘Win’
Catherine Kassenoff Lost Her Kids, Home, Health, Savings and Life Through Crafty Husband Family Court Play
Judge Wetherell’s Decision
Judge Kent Wetherell's decision in this highly followed case has drawn sharp criticism for its implications on a free press for media outlets in newsgathering and reporting. It also tests the limits of free speech and expression within the legal profession.
"The Court … understands that this case is personal to Plaintiff, but if he is going to be unable to keep his personal feelings out of his pleadings and the way he litigates this case, he might want to consider hiring an attorney to represent him in this case," Wetherell advised.
Beyond its immediate context, this statement hints at a broader judicial expectation for lawyers to detach emotionally and personally from their cases—a tall order, particularly for those representing themselves in deeply personal matters.
Kassenoff's 110-page complaint, criticized by the court for its narrative style and detailed personal anecdotes, indicates a legal system favoring brevity and dispassion over the comprehensive airing of grievances.
"The sheer length of the complaint and the way some of its allegations are pled make it more difficult than it needs to be for Defendant to frame a responsive pleading," the court noted, emphasizing a preference for procedural efficiency over the nuanced expression of personal and legal complexities.
A License To Deny The Bill of Rights
Journalist Michael Volpe published a recent article highlighting this issue and revealing a troubling trend where lawyers' First Amendment rights are seemingly under siege by their legal licenses.
According to Volpe, two petitions filed with the U.S. Supreme Court contend that attorneys relinquish their right to criticize judges upon entering the legal profession. This assertion, derived from the disciplinary actions faced by Michelle MacDonald, Asher Weinberg, and Marilyn Pierre for their outspoken critiques, raises alarm bells about the diminishing space for legal professionals to engage in what can arguably be deemed as protected expressive activity.
This judicial stance, as highlighted by Volpe, reflects a broader dilemma facing lawyers: the risk of disciplinary action for expressing criticisms of judges or engaging in advocacy perceived as too personal or passionate.
The implication is clear: choose the defense of the Constitution or select the practice of the legal profession. But what does the Oath of Attorney say? In federal court, it is relatively simple:
I DO SOLEMNLY SWEAR (OR AFFIRM) THAT AS AN ATTORNEY AND AS A COUNSELOR OF THIS COURT I WILL CONDUCT MYSELF UPRIGHTLY AND ACCORDING TO LAW, AND THAT I WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES.
While it appears on the face of the oath, the Constitution of the United States has become an afterthought in practice.
As outlined in Volpe's article, the cases of MacDonald, Weinberg, and Pierre illustrate the precarious position lawyers find themselves in when navigating the delicate balance between professional conduct and the exercise of free speech.
The legal principle of actual malice, established in New York Times v. Sullivan, serves as a critical benchmark for defamation cases, especially those involving public figures. However, the application of this standard to lawyers criticizing judges, as argued in the petitions mentioned by Volpe, underscores a contentious debate over whether the judiciary is insulated from critique at the expense of silencing its most informed and vocal critics.
A Symbol of the Authoritarian Slide?
Kassenoff v. Harvey, with its roots in a deeply personal and tragic narrative, thus becomes more than a legal dispute; it is a symbol of the growing tension between the judiciary's pursuit of order and fundamental rights of individuals to express their grievances, even within the formal confines of legal proceedings.
The court's advice to Kassenoff to hire representation, ostensibly to maintain a professional detachment, paradoxically suggests that the personal stakes and emotional investments inherent in many legal battles are unwelcome distractions in the quest for judicial efficiency.
This narrative, informed by Judge Wetherell's decision and Volpe's article, paints a legal system at a crossroads. The question that emerges is not just whether lawyers can criticize judges without fear of reprisal but, more broadly, whether the American judicial system can reconcile its commitment to order with the imperative to protect and defend the Constitution of the United States.
Left to their own devices, American courts, for at least the past generation, have swiftly eroded the rights of individuals to freely express their opinions and grievances, even—and perhaps especially—when those individuals are lawyers themselves.
The hope remains that the foundational principles of liberty and expression will not be overshadowed by the judicial imperative for control and conformity, thus further depriving American Courts of legitimacy during this pronounced authoritarian slide.
What do you think?
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https://www.silive.com/crime-safety/2021/08/trial-by-combat-lawyer-richard-luthmann-released-from-federal-custody.html