EDITOR'S NOTE: This story was updated Friday with a clarification of The Florida Bar disciplinary system.
A nearly four-year-old case concerning free speech in political contests and involving a Fort Myers lawyer continued Thursday.
The case involves a complaint filed in April 2020 by The Florida Bar against attorney Christopher Crowley’s actions two years earlier while he was still a candidate for 20th Judicial Circuit State Attorney.
The case is being heard via The Florida Bar’s Division of Lawyer Regulation— an official arm of the Florida Supreme Court — which provides a means to address lawyer misconduct. The Division accepts complaints against lawyers, investigates those complaints, and prosecutes lawyers who engage in unethical conduct.
Disciplinary proceedings do not take place before the Supreme Court although the Supreme Court’s docket does include the case and filings in it.
Thursday's hearing was to hear a Motion to Reconsider that argued the analysis of a previous referee in the case violated Crowley's First Amendment protections of free speech.
A referee is a judge or retired judge appointed by the Florida Supreme Court to conduct proceedings as provided under The Florida Bar Rules of Discipline. The referee hears witnesses, receives evidence and issues a report to the Florida Supreme Court with findings that, if recommending guilt, also recommends sanctions.
In this case the referee was Judge Gilbert Smith.
Crowley ran unsuccessfully for the state attorney post against the then 20th Judicial Circuit Chief Assistant State Attorney Amira Fox in 2018
Fox remains the current state attorney of the 20th Judicial District.
The gist of the complaint was that Crowley publicly disparaged Fox through various political campaign materials, advertisements, interviews, and social media postings.
During that political campaign, Crowley used descriptions such as “corrupt” and “swampy” to describe Fox, discussed her track record as a prosecutor, family connections to a suspected anti-Israel, anti-Semitic group, and what role she may have played in having Crowley investigated and arrested over a campaign donation from a raffle.
The Florida Bar brought the disciplinary action against Crowley because Bar rules prohibit attorneys from making a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, public legal officer, or candidate for election to judicial or legal office.
The referee in that case later recused herself for a conflict of interest. But before she did, she found Crowley in violation of Bar ethics rules and recommended to the Florida Supreme Court that Crowley be found guilty.
Representing Crowley is Naples Attorney Phares Heindl. Also assisting Crowley is The Rutherford Institute, a nonprofit civil liberties organization that provides legal assistance at no charge to individuals who believe their constitutional rights have been threatened or violated.
Attorney Lindsey Guinand represented The Florida Bar.
The Rutherford Institute filed the Motion to Reconsider, arguing that the previous referee's analysis violated First Amendment protections of free speech—which are heightened in an election context—by applying an unconstitutional standard that would enable claims through the State Bar to be weaponized to chill speech critical of public officials.
Rutherford also cited Counterman versus Colorado, a recent court case in which the U.S. Supreme Court reined in the government’s power to punish speech it deems distasteful or annoying.
Heindl said Crowley's case has deep and lengthy implications for free political speech in Florida and urged the case against his client be dropped.
"We all have a vested interest to get the law right," Heindl said.
Heindl also urged the court to "do what's right in this case ... and protect the right of every Florida lawyer and the people of Florida who have the right to fully hear what the candidates have to say."
Heindl also referred multiple times to "breathing space" required for freedom of speech that wasn't being allowed in the complaint against Crowley. He said a complaint made to the state elections commission might have been a better avenue for Fox.
Guinand countered defense arguments and said the Counterman reference didn't apply. She also said the number of requests in Crowley's case was made incorrectly and asked the motion be denied.
The referee asked Heindl what relief he was seeking. Mainly, Heindl said that he would like the court to vacate the previous order, among other things.
Referee Smith, the fifth jurist to hear the case, said he would be taking all the evidence and comments "very seriously" but would reserve judgment and render a decision as soon as he could.
If found guilty Crowley could be barred from running for state attorney for up to five years. Currently, Crowley is working in a legal capacity for federal law enforcement.
Four judges acting as referees in the case have recused themselves for conflicts of interest.
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