[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Cleveland Metro. Bar Assn. v. Morton , Slip Opinion No. 2021-Ohio-4095.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -4095
C LEVELAND M ETROPOLITAN B AR A SSOCIATION v . M ORTON
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as Cleveland Metro. Bar Assn. v. Morton , Slip Opinion No. 2021-Ohio-4095.] Attorneys—Misconduct—Violations of the Rules of Professional Conduct, including engaging in undignified or discourteous conduct that is degrading to a tribunal, making a statemen t that a lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judici al officer, and engaging in conduct that is prejudicial to the administration of justice—One-year suspension with six months stayed on condition of no further misconduct. (No. 2020-1520—Submitted May 12, 2021— Decided November 23, 2021 .)
O N C ERTIFIED R EPORT by the Board of P rofessional Conduct of the Supreme Court, No. 2020-021.

______________S UPREME C OURT OF O HIO

2 Per Curiam. {¶ 1} Respondent, John Alex Morton, of Richmond Heights, Ohio, Attorney Registration No. 0028021, w as admitted to the practice of law in Ohio in
1975. {¶ 2} In an April 2020 complaint, relat or, Cleveland Metropolitan Bar Association, alleged that Mort on committed four ethical violati ons by making improper statements that impugned the integrity of judicial off icers in a document
filed in this court. Morton deni ed the charges and moved for d ismissal of the complaint and then for summary judgment, but both motions were overruled. The matter proceeded to a hearing before a three-member panel of th e Board of
Professional Conduct. Based on th e evidence presented at the h earing, the panel dismissed one alleged rule viola tion and found that Morton had committed three others. The panel recommended that Morton be suspended from th e practice of law for one year with the entire suspension stayed on the condition that he commit no
further misconduct. The board a dopted the panel’s findings of fact, conclusions of law, and recommended sanction. Mor ton objects to the board’s f indings of misconduct and argues that the co mplaint should be dismissed. Relator objects to the recommended sanction and urge s us to suspend Morton from th e practice of law for six months with no stay. {¶ 3} For the reasons that follow, we overrule Morton’s objections an d adopt the board’s findings of misconduct. We also sustain rela tor’s objection in part and suspend Morton from the practice of law for one year w ith six months stayed on the condition that he c ommit no further misconduct.
Misconduct The Board’s Findings of Fact and Misconduct {¶ 4} The conduct at issue in this case arises from Morton’s represen tation of Fred P. Schwartz in his attempts to reduce the tax valuation of a parcel of real property in Cuyahoga County.January Term, 2021

3 {¶ 5} Although Schwartz purchased the property for $5,000 in 2011, a Cuyahoga County fiscal officer v alued it at $126,800 for the 20 11 tax year. After the Cuyahoga County Board of Revis ion (“BOR”) and the Board of Tax Appeals (“BTA”) affirmed the county’s valuation, Morton filed an appeal in this court. We
reversed and remanded the case with instructions that the $5,00 0 sale price be used as the property’s value for the 2011 tax year. Schwartz v. Cuyahoga Cty. Bd. of
Revision , 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223, ¶ 31-32 (“ Schwartz I ”). Schwartz and the county then agreed that the property woul d be valued at $12,500 for the next three years. {¶ 6} In 2015, the county fiscal officer valued the property at $107, 900, and Morton filed a complaint with the BOR seeking a valuation of $5 ,000. Morton asked the BOR to order the syste ms administrator for the county fiscal office to appear and testify about the m ethodology that the county used t o determine the property’s value. Without taking evidence from the systems adm inistrator, the BOR found that the 2011 sale price was too remote in time and r etained the fiscal
officer’s valuation. {¶ 7} Morton appealed the BTA’s decisi on to the Eighth District Court of Appeals. See Schwartz v. Cuyahoga Cty. Bd. of Revision , 8th Dist. Cuyahoga No. 106659, 2018-Ohio-4712, ¶ 4-5 (“ Schwartz II ”). There, he asserted that the BOR had improperly assigned the burde n of proof to Schwartz and arg ued that because he had submitted evidence that the property was sold for $5,000 in 2011, the burden shifted to the BOR to present evidence to support the county’s valuation. Id. at ¶ 26. The court of appeals noted, however, that in Moskowitz v. Cuyahoga Cty. Bd. of Revision , 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, ¶ 9-10, thi s court had held that the caselaw “unequi vocally refutes” that burden-s hifting argument. 1
Schwartz II at ¶ 27. In Moskowitz , we reiterated our past holdings that the appellant

1. Morton was familiar with the decision because he had repres ented Moskowitz. Schwartz II at ¶ 28.S UPREME C OURT OF O HIO

4 bears the burden of demonstrati ng that the value it advocates i s correct and that if the appellant fails to carry tha t burden, the BTA may approve t he taxing authority’s

assessment. Id. at ¶ 9, citing EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of
Revision , 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 6, and Westlake Med. Investors, L.P. v. Cuyahoga Cty. Bd. of Revision , 74 Ohio St.3d 547, 549, 660 N.E.2d 467 (1996). Because the county’s fiscal officer was pre sumed to carry out his statutorily prescribed dutie s in good faith absent a showin g to the contrary and
Schwartz did not cha llenge the BTA’s finding that he had failed to present any evidence of the property’s 2015 value, the court of appeals hel d that the BTA’s
decision was reasona ble and lawful. Schwartz II at ¶ 22-23, 32. {¶ 8} Morton sought this court’s discre tionary review of the Eighth District’s decision. In a January 2019 memorandum in support o f jurisdiction filed in this court, Morton argued that Moskowitz was wrongly decided. He claimed that
in Moskowitz , this court adopted “its own uni que standard for the burden of proof in [real-property tax cases]” but that “it should have supporte d this assertion with some solid case-law.” And “[b]ecause the Moskowitz Court could not do so, instead it intentionally misstated the holding of each of the cases it cited, none of which actually discussed the two parts of the burden of proof in valu ation cases, i.e., the burden of production of evidence and the burden of persuasion.” Morton also criticized the court of appeals for accusing him of “being disi ngenuous in his critical view of the BTA’s citation of [ Fairlawn Assocs., Ltd. v. Summit Cty. Bd. of
Revision , 9th Dist. Summit No. 22238, 2005-Ohio-1951],” and he stated t hat “[a]part from the BTA’s and court of appeals’ fabrication of th e Fairlawn decision”—purportedly to shield an assessing authority from any review of its appraisal methods—“it defies common sense to conclude that the government assessing authorities are not required to defend their initial determinations ofJanuary Term, 2021

5 value.” 2 He then opined, “Only politicians committed to maximizing the revenue of their political cronies could reach such a conclusion, and c ite the Fairlawn decision as the authority for same.” {¶ 9} The overarching theme of Mort on’s memorandum in support of jurisdiction was that in Moskowitz , this court distorted its past holdings to achieve its own political agenda. According to Morton, the Moskowitz decision “was based upon politics, not law,” and “[t] he political goal of the Moskowitz Court was to maximize government revenue, at t he expense of the taxpayer, an d his or her Constitutional right to limited taxation.” After suggesting th at Justice French had “persistently and incorrectly mai ntained that this Court should defer to the government” in property-valuati on matters, Morton claimed that “Justices French and Kennedy * * * showed a willi ngness to favor the government, at the expense of the taxpayer and the Constitution, no matter how unreasonabl e the government’s view of the true value of subj ect property.” “Also on the poli tical agenda,” Morton claimed, “was the promotion of t he leadership of Justice French on this Court.” {¶ 10} In support of those claims, Morton stated, “The most obvious evidence of the political nature of the Moskowitz decision was the decision to delay the decision until Justices Pfeifer and Lanzinger retired from the Court, and were replaced by Justices Fischer and DeWine.” Moreover, he proclai med, “[r]esponsibility for the delay must be assigned to Chief Justi ce O’Connor, since it
would not have been tolerated w ithout her approval.” On March 20, 2019, this

2. The court of appeals had found that the BTA cited Fairlawn for the proposition that “ ‘the burden is placed upon the complainant, i n this case the property owner , to bring forth su fficient evidence that the value is something other than that which was initially assessed.’ ” Schwartz II at ¶ 31, quoting the BTA decision. In contrast to Schwartz, the propert y owner in Fairlawn prevailed because it had presented competen t probative evidence in the fo rm of an expert appraisal report showing that the value of the property was less than the county ’s assessed value and the board had failed to rebut that evidence. Fairlawn at ¶ 15.S UPREME C OURT OF O HIO

6 court declined to accept jurisdiction over Schwartz’s appeal. Schwartz v. Cuyahoga Cty. Bd. of Revision , 155 Ohio St.3d 1406, 2019-Ohio-944, 119 N.E.3d 434. {¶ 11} Based on these statements, the board found that in a pleading b efore this court, Morton had “voiced undignified and discourteous sta tements about judges and justices who did nothing more than rule contrary to his client’s position.” Based on Morton’s tes timony that he made no investi gation into these
matters and relied on the inferences he had drawn from the fact s and the law, the board found that he had “made no real inquiry into the judges’ and justices’ integrity prior to making these statements.” Citing Disciplinary Counsel v.
Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425—which adopt ed an objective standard to determine whether a lawyer’s statements a bout a judicial officer were made with knowledge o r reckless disregard of their falsity—the board
found that Morton had no reasonable fa ctual basis for his alleg ations. {¶ 12} Ultimately, the board concluded that instead of engaging in legitimate commentary regarding the merits of the courts’ decis ions, Morton had attacked the judicial process a nd thereby violated Prof.Cond.R. 3.5(a)(6) (prohibiting a lawyer from enga ging in undignified or discourte ous conduct that is degrading to a tribunal), 8.2(a) ( prohibiting a lawyer from mak ing a statement that the lawyer knows to be false or with reckless disregard as to i ts truth or falsity concerning the qualifications or integrity of a judicial office r), and 8.4(d) (prohibiting a lawyer from enga ging in conduct that is prejudic ial to the administration of justice). Morton’s Objections {¶ 13} Morton raises four objections to the board’s findings of miscon duct. {¶ 14} First, Morton objects to the boa rd’s denial of his motions to d ismiss the complaint against him, alleging that relator did not have s tanding to bring this case against him because there was no grievant. He cites Ohioans for Concealed Carry, Inc. v. Columbus , 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E. 935, forJanuary Term, 2021

7 the proposition that a plaintiff must allege a personal stake i n the outcome of the controversy that would entitle the plaintiff to have a court he ar his case. But that requirement has no appl ication in the context of an attorney-di scipline proceeding. {¶ 15} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this court original jurisdiction ove r the admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the p ractice of law. Pursuant to that jurisdiction, we have promulgated the Rules fo r the Government of the Bar, including Gov.Bar R . V(12), which sets forth the pr ocedures governing attorney-discipline proceedings. “A disciplinary proceeding is instituted to safeguard the courts and to prot ect the public from the miscond uct of those who are licensed to practice law, and is neither a criminal nor a civil proceeding.” In re Judicial Campaign Complaint Against Carr , 76 Ohio St.3d 320, 322, 667 N.E.2d 956 (1996). {¶ 16} In addition to authorizing the O ffice of Disciplinary Counsel o r a certified grievance committee to i nvestigate grievances, Gov.Ba r R. V(9)(C)(1) provides that either of those entities “shall review and may investigate any matter filed with it or that comes to its attention and may file a com plaint pursuant to this rule in cases where it finds pr obable cause to believe that mis conduct has occurred.” Citing that rule, we have rejected an attorney’s claim that dis ciplinary counsel lacked investigative authority over an issue merely because it was not first raised in a written grievance. See Disciplinary Counsel v. Oviatt , 155 Ohio St.3d 586, 2018-Ohio-5091, 122 N.E.3d 1246, ¶ 22. Because Gov.Bar R. V(9) (C)(1) also expressly authorizes disciplin ary counsel or a certified grieva nce committee to file a complaint following such an investigation when they find prob able cause to
believe that misc onduct has occurred, we find that Morton’s fir st objection is
without merit. {¶ 17} In his second and third objecti ons, Morton challenges the board ’s
reliance on Disciplinary Counsel v. Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048,S UPREME C OURT OF O HIO

8 793 N.E.2d 425, and asserts that h is statements constitute cons titutionally protected free speech. Specifically, Mort on alleges that the legal under pinnings of Gardner are unsound and that the objective test adopted in that case im permissibly punishes false speech that is negligently made. {¶ 18} In Gardner , we stated, “The United Stat es Supreme Court has held that ‘[i]t is unquestionable that in the courtroom itself, duri ng a judicial proceeding, whatever right to “free speech” an attorney has is extremely ci rcumscribed,’ ” and that “ ‘[e]ven outside the courtroom, a majority of the Court i n two separate opinions in the case of In re Sawyer , 360 U.S. 622, [79 S.Ct. 1376, 3 L.Ed.2d 1473] (1959), observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be.’ ” (Secon d set of brackets added.) Gardner at ¶ 14, quoting Gentile v. Nevada State Bar , 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Relying on Gentile , we found that “[a]n attorney’s speech may be sanctioned if it is highly likely to o bstruct or prejudice the administration of justice,” id., citing Gentile at 1075, and that those narrow restrictions “are justified by the integral role that attorneys play in the judicial system,” id. , citing Gentile at 1074. {¶ 19} We adopted “ ‘an objective sta ndard to determine whether a lawyer’s statement about a judicial officer is made with knowle dge or reckless disregard of its falsity.’ ” Gardner at ¶ 26, quoting American Bar Association, Annotated Model Rules of Professional Conduct , Rule 8, at 566 (4th Ed.1999).
That standard looks to “ ‘ “what the reasonable attorney, consi dered in light of all his professional functions, would do in the same or similar cir cumstances” * * * [and] focuses on whether the attorney had a reasonable factual basis for making the statements, considering their na ture and the context in which t hey were made.’ ” (Brackets and ellipses added in Yagman .) Id. , quoting Standing Commt. on Discipline of United States Dist. Court for Cent. Dist. of California v. Yagman , 55January Term, 2021

9 F.3d 1430, 1437 (9th Cir.1995), quoting United States Dist. Court for E. Dist. of Washington v. Sandlin , 12 F.3d 861, 867 (9th Cir.1993). {¶ 20} Morton contends that the concept that an attorney’s freedom of speech is “extremely circumscribed” in the context of a judicia l proceeding predates the United States Suprem e Court’s decisions in New York Times Co. v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana , 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and that those de cisions “substantially broadened an attorney’s rights to free speech wh en criticizing public
officials.” Sullivan permitted public officials to recover civil damages for defamatory falsehoods regarding th eir official conduct that are made with “actual malice,” which the court define d as acting “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. at 270. And
the court in Garrison held that proof of actual malice is necessary to establish criminal liability for defamation of a public official. Id. at 79. But neither of those cases purported to apply that standard to disciplinary proceedi ngs arising from an attorney’s in-court speech. And contrary to Morton’s argument, both of those cases predate the “extremely cir cumscribed” language of Gentile by nearly 30 years. {¶ 21} In Gardner , we explained:

“Defamation actions seek to reme dy an essentially private wrong by compensating individuals for har m caused to their reputation an d standing in the community. Ethical rules that prohibit false statements impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant or offensive criticis m, but to preserve public confidence in the fairness and impartiality of our system of justice.”
* * *S UPREME C OURT OF O HIO

10 * * * [T]he state’s compelling interest in preserving public confidence in the judiciary supports applying a standard in disciplinary proceedings different from that applicable in defamation cases. Under the objective standard, an attorney ma y still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney t urns out to be mistaken.

99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 29-31, quo ting Yagman at 1437. {¶ 22} We recently applied Gardner ’s objective test to judicial-campaign speech in In re Judicial Campaign Complaint Against Falter , 164 Ohio St.3d 457, 2021-Ohio-1705, 173 N.E.3d 484. There, we found that “Ohio’s i nterest in preserving public confidence in t he integrity of its judiciary supports applying a standard in judicial-candidate-discipline proceedings different from that applicable
in defamation cases.” Id . at ¶ 16. Moreover, we found that because Jud.Cond.R. 4.3(A) requires a judicial candi date to act with a specific men tal state, i.e., knowing the information to be false or with a reckless disregard of whe ther it was false, “[n]egligently made false statements or negligent misstatements are not prohibited by the rule.” Id . at ¶ 18. {¶ 23} An attorney acts knowingly if he or she has “actual knowledge o f the fact in question.” Prof.Cond.R. 1.0(g). And like a judicial c andidate, an attorney acts recklessly if a certain result is possible and the attorne y chooses to ignore the
risk. See Falter at ¶ 18, citing In re Judicial Campaign Complaint Against Moll , 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, ¶ 11. Here , contrary to Morton’s arguments, it was not only possible—but true—that our decision in Moskowitz was based on well-settled law. There were a record-high number of tax appeals filed in this court in 2014 and 2015. But Morton chose to ignore theJanuary Term, 2021

11 possibility that any delay in reaching a decision in the Schwartz appeal was attributable to the high number of cases and acted with reckles s disregard by attributing political motives to our decision and what he perce ived as delay in reaching it. He admitted that he made no investigation and re lied solely upon his own interpretation of the facts in making his statements. Thes e facts establish that Morton acted with reckless disregard for the truth of his accus ations. Based upon the foregoing, we overrule Mort on’s second and third objections

. {¶ 24} In his fourth objection, Morton contends that the board erred i n finding that his statements viol ated Prof.Cond.R. 3.5(a)(6) and 8.4(d) for two reasons. We have already reject ed Morton’s argument that his s tatements were protected speech. His final argument is that the board failed to cite sufficient caselaw to support its findings of misconduct. But we have rou tinely found that attorneys have violated Prof .Cond.R. 3.5(a)(6) by making undign ified or
discourteous statement s degrading to a tribunal in documents th at have been filed
in a court. See, e.g. , Toledo Bar Assn. v. Yoder , 162 Ohio St.3d 140, 2020-Ohio4775, 164 N.E.3d 405 (statements were made in an affidavit of b ias and prejudice); Disciplinary Counsel v. Proctor , 131 Ohio St.3d 215, 2012-Ohio-684, 963 N.E.3d 806 (statements were made in a s upplement to a trial-court moti on and reiterated in an appellate brief); Disciplinary Counsel v. Pullins , 127 Ohio St.3d 436, 2010- Ohio-6241, 940 N.E.2d 952 (statements were made in an affidavitof disqualification). And we have found on multiple occasions tha t unfounded attacks on the judiciary in publicly filed documents are prejudicial to the administration of justice. See, e.g. , Disciplinary Counsel v. Frost , 122 Ohio St.3d 219, 2009-Ohio2870, 909 N.E.2d 1271, ¶ 5, 18 (an attorney engaged in conduct that was prejudicial to the administration of justi ce by falsely accusing several co mmon-pleas-court judges of bias in the execution of their duties and by leveling unfounded accusations of racial bias and other impropr iety against a federal judge); Disciplinary Counsel v. Stafford , 131 Ohio St.3d 385, 2012-Ohio-909, 965 N.E.2d 971, ¶ 57-58 (a nS UPREME C OURT OF O HIO

12 attorney violated Prof.Cond.R. 8.4( d) by making false statement s regarding the integrity of the judge that inte ntionally, unnecessarily, and r ecklessly demeaned the judge in a memorandum in support of a motion that was in the pu blic record); Disciplinary Counsel v. Gallo , 131 Ohio St.3d 309, 2012-Ohio-758, 964 N.E.2d 1024, ¶ 6-7, 11 (an attorney vio lated Prof.Cond.R. 8.4(d) by re cklessly failing to independently verify the identity of a man he had observed at t he courthouse before alleging in a publicly f iled affidavit that it was a judge atte mpting to intimidate his client). We therefore overrule Morton’s fourth and final objec tion to the board’s findings of misconduct. {¶ 25} Having overruled each of Morton’s objections, we adopt the boar d’s findings of misconduct.
Sanction {¶ 26} When imposing sanctions for attorney misconduct, we consider al l relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. Aggravating and Mitigating Factors {¶ 27} As aggravating factors, the boa rd found that Morton refused to acknowledge the wrongful nature of his conduct, made no effort to verify the
truthfulness of the sta tements set forth in his jurisdictional memorandum, and
denied that his comments were undignified or discourteous. See Gov.Bar R. V(13)(B)(7). He testified that he planned to enga ge in the sam e type of conduct in the future—even though he acknowle dged that a lawyer could argu e that a court
did not follow the law without accusing the court of misconduct . Morton also was indignant and confrontational throughout the course of the hear ing, refused to abide by the rulings of the panel chair , and repeatedly directed impr oper questions to the panel members. See Gov.Bar R. V(13)(B)(5).January Term, 2021

13 {¶ 28} In mitigation, the board found that Morton had no prior discipl ine
and lacked a dishonest or selfish motive. See Gov.Bar R. V(13)(C)(1) and (2). He
offered no evidence of his ch aracter or reputation. Recommended Sanction and Relator’s Objection {¶ 29} Having denied any wrongdoing, Morton did not address the issue of a sanction at the hearing or in his posthearing brief. On the other hand, relator argued that consistent with our holdings in Gardner , 99 Ohio St.3d 416, 2003-Ohio4048, 793 N.E.2d 425, and Proctor , 131 Ohio St.3d 215, 2012-Ohio-684, 963 N.E.2d 806, Morton’s misconduct warranted a six-month suspensio n from the practice of law. {¶ 30} The board acknowledged that our decisions in Gardner and Proctor supported relator’s proposed sa nction. Nonetheless, citing Disciplinary Counsel v.
Shimko , 134 Ohio St.3d 544, 2012-Ohio-5694, 983 N.E.2d 1300, the boar d recommended that we suspend Morton from the practice of law for one year, stayed in its entirety on the condition that he commit no further misc onduct. Relator objects to the board’s recommenda tion and renews its argument t hat the appropriate
sanction for Morton’s misconduct is a six-month actual suspensi on from the practice of law. {¶ 31} We agree with relator’s contention that the facts of this case are most comparable to those of Gardner and Proctor . The attorney in Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, filed a motion for r econsideration of an appellate-court decision in whi ch he had improperly accused the appellate panel of harboring bias toward the prosecution, corrupting the law, a nd issuing a resultdriven opinion in rendering a j udgment adverse to his client. Gardner made no inquiry into the court’s integr ity before launching his attack, which Morton also failed to do, and we found no evidence of bias or corruption in the court of appeals’ opinion. Id. at ¶ 33-34. We determined that Gardner’s conduct violated rul es that prohibited attorneys from engagi ng in undignified or discourteo us conduct that isS UPREME C OURT OF O HIO

14 degrading to a tribunal and knowi ngly making false accusations about a judge. Id

. at ¶ 1, 35. {¶ 32} Although Gardner had no prior di scipline and acknowledged the need to challenge judicial decisi ons in an appropriate manner, he maintained that the appellate court “had skewed and ignored the facts, disregar ded honesty and truth, and violated their oaths t o decide cases fairly and impa rtially.” Id. at ¶ 11. Holding that “[u]nfounded attacks against the integrity of the judiciary require an actual suspension from the practice of law,” we rejected the bo ard’s recommendation that we impose a six-month conditionally stayed suspension and imposed a six-month suspension with no stay for Gardner’s misco nduct. Id . at ¶ 36. {¶ 33} In Proctor , 131 Ohio St.3d 215, 2012-Ohio-684, 963 N.E.2d 806, we also imposed a six-month suspension on an attorney who had f iled several documents accusing a trial judge o f harboring bias against him and engaging in ex parte communications with opposi ng counsel and then going to gr eat efforts to cover up the alleged conduct. Although Proctor had no discipli nary record and cooperated in the resulting disc iplinary proceedings, he also e ngaged in a pattern of misconduct involving multiple o ffenses. Like Morton, he con tinued to claim that he had a reasonable belief to support his accusations, tho ugh Proctor actually had stipulated t o the contrary. Id . at ¶ 10-11. {¶ 34} The attorney in Shimko , 134 Ohio St.3d 544, 2012-Ohio-5694, 983 N.E.2d 1300, acted in a disrespect ful and confrontational manne r during a trial and then, over a period of nine months, filed multiple documents in which he accused the trial judge of being dishone st and having improper motives for his rulings. Shimko, like Morton, was unapologe tic, failed to a cknowledge th e wrongful nature of his conduct, and maintained t hat he honestly believed his st atements to be true.
Id. at ¶ 24, 29. He also had prior discipline. However, he ultima tely cooperated in the disciplinary process and ac knowledged that attorneys do not have an unfetteredJanuary Term, 2021

15 right to say whatever they desi re about a member of the judicia ry, and he
established that he had an exce llent reputation with the bench and bar. While recognizing that Shimko’s statem ents about the trial judge were “rough, unnecessary, and ultima tely unproductive,” id . at ¶ 34, a majority of this court found that they were “less defamatory than Gardner’s rant against thr ee judges on the court of appeals,” id., and consequently imposed a c onditionally stayed six-month suspension, id. at ¶ 36. {¶ 35} In contrast to the attorney in Shimko , Morton was combative and obstreperous throughout his discip linary hearing, was discourte ous to the panel members, and often refused to accept the panel chair’s evidenti ary rulings. At the hearing, he accused relator’s couns el, bar counsel, and members of the certified grievance committee of having conflicts of interest and acting with bias because they were allegedly appointed to serve on various committees co nvened by this court. And while Shimko’s improper statements were directed at a single trial judge, Morton, like Gardner, critic ized three appellate-court j udges. In addition, he falsely and recklessly charged the entire Supreme Court of Ohio with intentionally delaying a case and misstating the law that it has been sworn t o uphold for improper political motives. Furthermore, he did so in a document filed in this court that remains readily accessible to the public on this court’s online docket. On these facts, we find that Morton’s c onduct is more egregious than tha t of the attorneys in
Shimko , Gardner , and Proctor , and we agree with relat or that Morton’s unfounded attack against the judiciary war rants an actual suspension from the practice of law.
We therefore sustain relator’s objection in part and conclude t hat a one-year suspension with six months stayed on the condition that Morton commit no further misconduct is the appropriat e sanction in this case.
Conclusion {¶ 36} Accordingly, John Alex Morton is suspended from the practice of law in Ohio for one year, with six months stayed on the conditi on that he commitS UPREME C OURT OF O HIO

16 no further misconduct. If Mort on fails to comply with the cond ition of the stay, the stay will be lifted and he will serve the entire one-year suspe nsion. Costs are taxed
to Morton. Judgment accordingly.
F ISCHER , D ONNELLY , and B RUNNER , JJ., concur.
O’C ONNOR , C.J., concurs, with an opinion joined by F ISCHER , D ONNELLY , and B RUNNER , JJ.
S TEWART , J., concurs in part and dissent s in part and would adopt the
recommended sanction of the Boa rd of Professional Conduct but o therwise joins the per curiam opinion and Chief J ustice O’Connor’s concurring opinion.
K ENNEDY , J., dissents, with an opinion.
D E W INE , J., dissents, with an opinion.

_________________ O’C ONNOR , C.J., concurring. {¶ 37} I fully concur with the majority’s reasoning and in its judgmen t, which properly sanctions respondent, John Alex Morton, for his statements attacking the integrity of the judicial process. This case inv olves Morton’s blatant breach of the professional duties, including preserving the int egrity of the court, that he agreed to be bound by as an officer of the court and th e consequences for failing to comply with those du ties. As this court has unanimo usly done many times before, the majority properly applies the objective test set forth in Disciplinary Counsel v. Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, to the facts of this case. See, e.g. , Erie-Huron Cty. Bar Assn. v. Bailey and Bailey , 161 Ohio St.3d 146, 2020-Ohio-3701, 161 N.E.3d 590. I write separately to respond to the dissenting opinions’ needless attempt to dist ract from this focus with First Amendment arguments and to paint members of this cou rt as fragile and
vindictive.January Term, 2021

17 {¶ 38} It is well established that practicing law is a privilege, not a right.
See Shimko v. Lobe , 103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 54 (“no person has a right to practic e law, but * * * the practice of law is an extraordinary privilege bestowed by this court upon one who mee ts the qualifications for admission and continues to maintain the stan dard of ethical conduct as prescribed by the rul es of the court”). And accompa nying the privilege
of bar licensure are conditions. See Gentile v. State Bar of Nevada , 501 U.S. 1030, 1066, 111 S.Ct. 2720, 115 L.E.2d 888 (1991), quoting In re Rouss , 221 N.Y. 81, 84, 116 N.E. 782 (1917) (“ ‘Membership in the bar is a privileg e burdened with conditions’ ”). One such condition outlined in the Ohio Rules of Professional Conduct, among many others, is tha t “[a] lawyer should demonstr ate respect for the legal system and for those who serve it.” Prof.Cond.R., Preamb le [5]. It is “a lawyer’s duty to uphold [t he] legal process.” Id . In fact, this important condition is integrated into the very oa th that Ohio attorneys take upon entering this privileged and regulated profession:

I, ___________, hereby (swear or affirm) that I will support
the Constitution and the laws of the United States and the Constitution and the laws of Ohio, and I will abide by the Ohio Rules
of Professional Conduct. In my capacity as an attorney and officer of the Court, I will conduct myself with dignity and civility and show respect towar ds judges, court staff, clients, fe llow professionals , and all oth er
persons. I will honestly, faithfully, and competently discharge the duties of an attorney at law.

Gov.Bar R. I(9)(A).S UPREME C OURT OF O HIO

18 {¶ 39} By taking this oath, an attorney accepts several duties as an o fficer
of the court. See Shimko at ¶ 41, citing Anderson v. Elliot , 555 A.2d 1042, 1048 (Me.1989). One such duty is “to abide by the Ohio Rules of Pro fessional Conduct.” Another is to act “with dignity and civility” and “show respect towards judges” and fellow professionals. An attorney willingly agrees to comply w ith these duties and, in doing so, accepts that there are professional consequences f or failing to fulfill these duties. Consequently, although attorneys, like other cit izens, enjoy the right to free speech, they also willingly accept the conditions that arise with the privilege to practice law. See In re Sawyer , 360 U.S. 622, 646, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Stewart, J., concurring in the result) (“A lawyer belongs to a profession with inher ited standards of pr opriety and honor * * *. He who would follow that calling must conf orm to those standards”). {¶ 40} As the majority opinion points out, professional rules and cond itions that “ ‘prohibit false statements impugning the integrity of ju dges * * * are not designed to shield judges from unpleasant or offensive criticis m, but to preserve public confidence in the fairness and impartiality of our syste m of justice.’ ”
Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 29, q uoting Standing Commt. on Discipline of United Stat es Dist. Court for Cent. Dist. of California v. Yagman , 55 F.3d 1430, 1437 (9th Cir.1995). Stated differently, the underpinning of these professional- conduct rules is the preserv ation of the integrity of the court by protecting the public from incompetent and unpr ofessional attorneys, In re Holtzman , 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991), maintaining public trust i n the judicial system’s impar tiality, Gardner at ¶ 29, and promoting the effective administration of justice, id . at ¶ 14, citing Gentile
at 1074. These are far from hollo w sentiments: the integrity o f the court is an essential cog in the democratic system. See In re ESM Govt. Securities, Inc. , 66 B.R. 82, 84 (S.D.Fla.1986). As the preamble to the Ohio Rules of Professional Conduct duly notes, “legal institutions in a constitutional dem ocracy depend onJanuary Term, 2021

19 popular participation and support to maintain their authority.” Prof.Cond.R., Preamble at [6]. And lawyers, in furtherance of this democrati c system, should foster “the public’s understandi ng of and confidence in the rul e of law and the justice system.” Id

. {¶ 41} Morton, like all other Ohio attorneys, took an oath of office o n entering the practice of law. By doing so, he accepted and agr eed to be bound by the duty to adhere to the Ohio Rules of Professional Conduct, i ncluding the rule requiring an attorney to have a r easonable factual basis before making a statement,
see Gardner at ¶ 26 (whether an attorney has a reasonable factual basis fo r making a statement is the standard for determining whether the attorne y’s statements about a judicial officer were made with knowledge or reckless disrega rd of their falsity). Thus, contrary to the second dissenting opinion’s suggestions, this disciplinary
action does not derive from a des ire to prevent “future Mortons from leveling similar attacks on this court.” Second dissenting opinion at ¶ 100. Nor was it brought because our skin is too “thin.” Id . at ¶ 72. In fact, disciplining Morton has nothing to do with this court or any of its justices. Rather, it is about preserving the integrity of the court—i.e., the judicial system as a whole—by maintaining publ ic confidence in the court’s imp artiality and the rule of law. See Gardner at ¶ 29. {¶ 42} Morton’s statements accusing this court of furthering its own political agenda directly undermines this confidence. Accusati ons made with reckless disregard for their tr uth lead the public to believe t hat the judiciary is not only partial but is politically mo tivated to rule on cases for selfish ends. Accordingly, the disciplinary ac tion against Morton seeks to re medy this wrong against society. See In re Terry , 271 Ind. 499, 502, 394 N.E.2d 94 (1979) (professional misconduct “is not punished for the benefit of th e affected person; the wrong is against society as a whol e, the preservation of a fair , impartial judicial system, and the system of justice as it has evolved for generat ions”).S UPREME C OURT OF O HIO

20 {¶ 43} Several avenues are availabl e to deal with a judge whose conduc t runs afoul of his or her duties. If an attorney or party belie ves that a judge is biased, he or she may file an affidavit pursuant to R.C. 2701.03 to dis qualify the judge. Or
the Ohio State Bar Association may charge the judge with profes sional misconduct. See generally Rules of the Code of Judicial Conduct. I cite these examples to emphasize that Morton had sever al vehicles by which to express his criticisms that would have aligned with the pro fessional duties he accepted; he chose none of these options, however. Rather, Morton decided to voice his criticis ms through “groundless assertions” in filings to this court. In re Cobb , 445 Mass. 452, 473, 838 N.E.2d 1197 (2005) (“The court room is not a place for grou ndless assertions, whatever their nature”). Morton cannot now seek refuge under t he First Amendment when he chose to ignore the professional duties that he willfully accepted when he took his oath as an attorney. See Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 15 (“attorneys may not inv oke the federal constitutional right of free speech to immunize themselves from even-handed discipline for proven un ethical conduct”). {¶ 44} With this backdrop in mind, it is evident that the First Amendm ent arguments presented by the two dissenting opinions are nothing but a red herring. The dissenting opinions cite a litany of cases for the proposit ion that the majority’s opinion “chill[s],” first dissenting opinion at ¶ 69, and “stif le[s],” second dissenting opinion at ¶ 102, attorneys’ political speech, thus silencing v oices that are integral to the public discussion of self-government. Indeed, it is tru e that attorneys, who are active participants in the judicial system, play an importa nt role in exposing problems within that system. And thus their criticisms are an important voice in the public discourse that the First Amendment seeks to protect. See State ex rel.
Oklahoma Bar Assn. v. Porter , 766 P.2d 958, 967 (Okla.1988). {¶ 45} But the constitutional concerns designed to further robust publ ic discussion in the press are not implicated here. Unlike severa l of the cases cited byJanuary Term, 2021

21 the dissenting opinions, Morton di d not make his statements to any member of the

press. See, e.g. , Yagman , 55 F.3d at 1434; Iowa Supreme Court Attorney Disciplinary Bd. v. Weaver , 750 N.W.2d 71, 74 (Iowa 2008); Garrison v.
Louisiana , 379 U.S. 64, 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Porter at 960- 961. Rather, Morton, using his pr ivilege to practice law and t o actively participate in the judicial system, and with reckless disregard for the tru th of his statements, filed a pleading in which he accused this court of adjudicating based on political motives. In doing so, he undermin ed the integrity of the court and violated the very oath to which he willingly agreed to adhere so that he could pr actice as an attorney
in Ohio. {¶ 46} Preserving the integrity of the court depends on the public’s confidence and respect for the j udicial system and the long-sta nding disciplinary rules regulating attorneys’ conduct in that system. See In re Chmura , 461 Mich. 517, 535, 608 N.W.2d 31 (2000) (to preserve the integrity of th e legal process, people must have confidence in this process); see generally In re Terry , 271 Ind. at 502-504, 394 N.E.2d 94. Morton’s unw arranted, in-court stateme nts served only “to weaken the public’s trust in the judicial system.” Bd. of Professional Responsibility v. Parrish , 556 S.W.3d 153, 166 (Tenn.2018). Any distraction from that focus of the court’s disciplinary sanction—such as creatin g a First Amendment smokescreen aimed at inflaming th e public—further undermines th e integrity of the
court from the bench. For these r easons, I fully concur in the majority opinion.
F ISCHER , D ONNELLY , and B RUNNER , JJ., concur in the foregoing opinion.
S TEWART , J., concurs in the foregoing opinion except that she would im pose the sanction recommended by the B oard of Professional Conduct.

_________________ K ENNEDY , J., dissenting. {¶ 47} Because the majority’s continued reliance on this court’s decis ion in Disciplinary Counsel v. Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2dS UPREME C OURT OF O HIO

22 425, ¶ 26, is contrary to the plain language of Prof.Cond.R. 8. 2(a) and the right to free speech guaranteed by the First Amendment to the United Sta tes Constitution,
I dissent. In Gardner , this court addressed DR 8- 102 of the Code of Professional Responsibility, 23 Ohio St.2d 54, a rule that has since been ab rogated. We held that pursuant to that rule, “an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believ e are false.” Id. at ¶ 31. We referred to that reasonable-attorney standard as an o bjective standard. Id

. at ¶ 26. This court justified granting less protection to atto rney speech in a disciplinary case than to the speech at issue in a defamation c ase on the ground that the state had a “compelling inte rest in preserving public confi dence in the judiciary.” Id. {¶ 48} The objective test handed down in Gardner was wrong when we adopted it in 2003. It improperl y relieves a disciplinary auth ority of its burden to prove that the attorney’s stateme nt was false by instead requir ing a showing that a reasonable attorney would think that the statement was false. That is, Gardner imposed a mere negligence standard in determining whether attor ney speech about the judiciary was protected. However, after our decision in Gardner , we replaced the Code of Professional Respons ibility with the Rules of Profe ssional Conduct. Prof.Cond.R. 8.2(a) now establishe s a different standard for de termining whether a lawyer is subject to disciplinary action for statements made ab out a judge or other adjudicatory officer. It now prohi bits lawyers from “mak[ing] a statement that the lawyer knows to be false or with reckless disregard as to its t ruth or falsity concerning the qualifications or integrity of a judicial office r.” The rule plainly adopts the “actual malice” standa rd that is required in defamat ion cases regarding public officials that Gardner refused to impose. This standard requires a greater showing of culpability than negligence. Moreover, the holding in Gardner is inconsistent with United States Supreme Court’s precedent conce rning free speech and the judiciary. In Republican Party of Minnesota v. White , 536 U.S. 765, 122January Term, 2021

23 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the court recognized that a law abridging speech that was intended to maintain the appearance of judicial impartiality was not narrowly tailored to advance a compelling state interest th at justified the abridgment of the speech. In my view, Gardner ’s objective test, which this court justified by tying it to the interest in preserving public conf idence in the judiciary,
fares no better. {¶ 49} For these reasons, I would overrule this court’s decision in Gardner

. In place of its objective test, I would adopt a two-part inquir y for attorney-discipline cases involving statements that a llegedly disparage the judicia ry: (1) did the disciplinary authority prove that the attorney’s statement was a false statement of fact and (2) if the statement is false, did the attorney make t he statement with actual malice, that is, with knowledge t hat it was false or with reckl ess disregard for its
truth. See New York Times Co. v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)

. Because relator, Cleveland Metr opolitan Bar Association, did no t prove that the statements made about members of this court by r espondent, John Alex Morton, are false, I would dismiss the complaint brought a gainst him in this

case. {¶ 50} “Freedom of speech and freedom of the press, which are protecte d by the First Amendment from infri ngement by Congress, are among the fundamental personal rights and liberties which are protected b y the Fourteenth Amendment from invasion by state action.” Lovell v. Griffin , 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938). {¶ 51} Morton argues that both the United States Constitution and the Ohio Constitution protect his right to criticize members of the judi ciary. “[T]he United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall.” Arnold v. Cleveland , 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus. However, “[t ]he Ohio Constitution is a document of independent force.” Id. And we have recognizedS UPREME C OURT OF O HIO

24 that the free-speech provision of Article I, Section 11 of the Ohio Constitution affords greater protection than the free-speech provision of th e First Amendment to
the United States Constitution. Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 19. Nonetheless, we need not break new ground to reach the issue whether the Ohio Constitution protects Morton’s right to critic ize this court in zealously representing his client. For the reasons stated belo w, the binding precedent of the United States Supreme Court and the plain lang uage of Prof.Cond.R. 8.2(a) provide ample reason to dism iss the allegat ions of misconduct against him. {¶ 52} In New York Times Co. , 376 U.S. at 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686, the United States Supreme Court held that the fede ral Constitution limits state power and “prohibits a public official from recove ring damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’—that is , with knowledge that it was false or with reckless disregard of whe ther it was false or not.” Th e court recognized that political speech about pub lic officials is fundamental to our constitutional system, id . at 269, and “[a]uthoritative interpretations of the First Ame ndment guarantees have consistently ref used to recognize an exception for any test of truth—whether administered by j udges, juries, or administrative officials—and especially one that puts the burden of proving truth on the spe aker,” id. at 271. Neither factual error nor injury to “the dignity and reputation of the courts,” id. at 272-273, “suffices to remove the c onstitutional shield from cri ticism of official conduct,” id. at 273. The court held that “a finding of negligence in failin g to discover the misstatements * * * is constitutionally insufficie nt to show the recklessness that is required f or a finding of actual malice.” Id. at 288. {¶ 53} In Garrison v. Louisiana , 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the court extended the New York Times standard to protect a prosecuting attorney’s criticism of local judges that had resulted in crimi nal sanctions againstJanuary Term, 2021

25 the attorney. The prosecuting attorney asserted publicly that a large backlog of pending criminal cases was due to those judges’ “inefficiency, laziness, and
excessive vacations” and that their failure to fund vice invest igations raised “ ‘interesting questions about t he racketeer influences on our eight vacation-minded judges.’ ” Id. at 66. The Supreme Court held that “even where the utterance i s false, the great principles of t he Constitution which secure fr eedom of expression in this area preclude attaching adverse consequences to any exc ept the knowing or
reckless falsehood.” Id. at 73. The court continued: “Truth may not be the subject
of either civil or criminal sanc tions where discussion of publi c affairs is concerned. * * * [O]nly those false statem ents made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or
criminal sanctions.” Id. at 74. {¶ 54} In Gardner , we considered whether these principles from First Amendment law also extended to attorney-discipline cases. The attorney in that case asked a court of appeals to reconsider its adverse decisio n; in doing so, the attorney asserted in his filing that the panel of appellate jud ges was dishonest, result driven, and corrupt and posse ssed prosecutorial bias. Id ., 99 Ohio St.3d 416, 2003- Ohio-4048, 793 N.E.2d 425, at ¶ 3-8. The attorney was charged with several
violations of the former Code o f Professional Responsibility, i ncluding DR 8- 102(B), which prohibited a lawyerfrom “knowingly mak[ing] fals e accusations against a judge.” He asserted t hat the court should adopt the actual-malice standard
from New York Times to determine whether he acted knowingly. The court, however, looked to the majority rule among the states and adopt ed an objective standard, holding that “an attorn ey may be sanctioned for makin g accusations of judicial impropriety that a reasonable attorney would believe a re false.” Gardner at ¶ 31. We reasoned that “the state’s compelling interest in preserving public confidence in the judiciary s upports applying a standard in dis ciplinary proceedings different from that applic able in defamation cases.” Id.S UPREME C OURT OF O HIO

26 {¶ 55} The court’s adoption of this obj ective test failed to give effe ct to the words of former DR 8-102(B), which prohibited knowingly making a false statement. And the court’s objective test did not require proo f that the statement was false; instead, it required a finding that a reasonable att orney would think that it was false. And even if the attorney was merely mistaken, th e test handed down
in Gardner permitted the disciplinary authority to prove that the attorney knowingly made a false statement by provi ng that the attorney was neglige nt in failing to ascertain the truth or falsity of the statement. However, an a ttorney who negligently
fails to realize that a statement is false does not know that the statement was false. A reasonable-person standard reduces culpability to negligence and does not require any awareness of wrongdoing. Elonis v. United States , 575 U.S. 723, 738, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015). {¶ 56} Effective February 1, 2007, we abrogated the Code of Profession al Responsibility and adopted the Rul es of Professional Conduct. Prof.Cond.R. 8.2(a) prohibits lawyers from “mak[ing] a statement that the lawyer kn ows to be false or with reckless disregard as to its truth or falsity concerning t he qualifications or integrity of a judicial officer.” The rule adopts the actual-m alice standard from New
York Times that we rejected in Gardner . It does not subject an attorney to discipline for statements that an attorney “reasonably should know” are fa lse, although the
Rules of Professional Conduct use that standard in other contex ts. E.g., Prof.Cond.R. 1.10(a) and (b). By requiring that a relator in a disciplinary case prove that an attorney was reckless when making a false statement abo ut the judiciary, Prof.Cond.R. 8.2(a) has superseded Gardner ’s reasonable-attorney standard, which requires a relator to show only ne gligence to prove a violation

. {¶ 57} This language in Prof.Cond.R. 8.2( a) leaves no doubt as to whet her an objective or subjective sta ndard should apply w hen examining statements made by an attorney about judges. DR 8-102 did not clearly employ t he New York Times language; that rule stated, “A l awyer shall not knowingly make false accusationsJanuary Term, 2021

27 against a judge or other adjudi catory officer.” The word “know ingly” was not
defined in the Code of Profe ssional Responsibility; it was left for this court to define it, and we employed an objective, negligence standard. But Pro f.Cond.R. 8.2(a) adopts the language of the New York Times subjective test regarding the knowledge of falsity: “A lawyer shall not make a statement that the lawye r knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judicial officer * * *.” (Emphasis added.) Thi s language requires the court to consider the attorney’s state of mind at the time of m aking the statement
and is inconsistent with a reas onable-attorney standard. {¶ 58} Therefore, by adopting the New York Times standard regarding knowledge of falsity, Prof.Cond.R. 8.2(a) requires the subjecti ve analysis of an attorney’s allegedly false statements. As the Supreme Court ha s explained, “reckless conduct is not measured by whether a reasonably prude nt man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson , 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). That is, actua l malice requires a “high degree of awareness of [the statements’] probable falsity .” Garrison , 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125. {¶ 59} Even though Gardner construed a rule that has now been abrogated, the majority today overlays its h olding onto the different lang uage of Prof.Cond.R. 8.2(a) to again apply a reasonable-attorney standard—a negligen ce standard—that does not require proof that the attorney’s statement was false and that it was made knowingly or recklessly. “Knowingly” and “recklessly” are each higher degrees of culpability than negligence. See generally Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 35. {¶ 60} The adoption of Prof.Cond.R. 8.2(a) and that rule’s reference t o the
New York Times standard is not the only reas on to abandon the objective test fromS UPREME C OURT OF O HIO

28 Gardner . The reasoning of the Supreme C ourt of the United States in Republican Party of Minnesota does not support this court’s reasoning in Gardner that preserving public confidence in the judiciary is a sufficient s tate interest justifying a content-based prior restraint on speech. {¶ 61} In Republican Party of Minnesota , the court addressed whether judges’ First Amendment rights c ould be restricted by a state’s code of judicial ethics. Specifically, a provisi on of the Minnesota Code of Jud icial Conduct forbade judicial candidates from “ ‘a nnounc[ing] his or her views on di sputed legal or political issues.’ ” Id. , 536 U.S. at 768, 122 S.Ct. 2528, 153 L.Ed.2d 694, quoting former Canon 5(A)(3)(d)(i) of t he Minn.Code of Judicial Conduct

. {¶ 62} The court stated that “the announ ce clause both prohibits speec h on the basis of its content and burdens a category of speech that is ‘at the core of our First Amendment freedoms’—speech about the qualifications of ca ndidates for public office.” Id. at 774, quoting Republican Party of Minnesota v. Kelly , 247 F.3d 854, 861 (8th Cir.2001). The court applied the strict-scr utiny test, which requires the government to demonstrate that a restraint “is (1) narrowly tailored to serve (2) a compelling state interest.” Id. at 775. A prior restraint is narrowly tailored when “it does not ‘unnecessarily circumscrib[e] protec ted expression.’ ”
Id . at 775, quoting Brown v. Hartlage , 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). {¶ 63} The court determined that th e announce clause was unconstitutio nal because prohibiting a candidate f or judicial office from declar ing his or her views on disputed legal and political issues to the electorate during a campaign violated
the First Amendment. Id. at 788. In reaching this conclusion, the court rejected the interests advanced by the state—“preserving the impartialit y of the state judiciary and preserving the appearance of the impartiality of the state judiciary”— and held that they were no t sufficiently compelling. Id. at 775.January Term, 2021

29 {¶ 64} In Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 31, we justified requiring pr oof of negligence when examin ing an attorney’s allegedly false statements—rathe r than requiring proof that the statements were made knowingly or with reckless disregard for the truth—on the ground that the state had a “compelling interest in preserving public confidenc e in the judiciary [that] supports applying a standa rd in disciplinary proceedings different from that applicable in defamation cases.” However, the Supreme Court’s decision in Republican Party of Minnesota demonstrates that the simple assertion of the need to protect the appearance of judicial integrity may not be a co mpelling interest sufficient to abridge an attorney’s right to criticize a judici al officer. {¶ 65} Rather, as the court explained in Landmark Communications, Inc. v. Virginia , 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), quoting New York
Times Co. , 376 U.S. at 272-273, 84 S.Ct. 710, 11 L.Ed.2d 686, protecting judicial integrity is not a sufficient reason for “ ‘for repressing spee ch that would otherwise be free.’ ” “[T]he institutional reputation of the courts * * * is entitled to no greater weight in the constitutional scales.” Id. at 842. “The assumption that respect for the judiciary can be won by shie lding judges from published cri ticism wrongly appraises the character of Ame rican public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” Bridges v. California , 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941). {¶ 66} In this case, Morton made statements critical of elected public officials regarding their inte grity and qualification to serve in office. He therefore engaged in political speech—speech about the government and gov ernment officials. Burson v. Freeman , 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). “Political speech, of cour se, is ‘at the core of what the First Amendment is designed to protect.’ ” Morse v. Frederick , 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), quoting Virginia v. Black , 538 U.S. 343, 365, 123 S.Ct. 1536,S UPREME C OURT OF O HIO

30 155 L.Ed.2d 535 (2003) (plurality opinion). See also Gentile v. State Bar of
Nevada , 501 U.S. 1030, 1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) ( Kennedy, J., lead opinion) (noting that the speech at issue involved an attorney’s words directed at public officials and their conduct in office but th at “[t]here is no question that speech critical of the exer cise of the State’s power lies at the very center of the First Amendment”) Such “[s]peech is an essential mechanism of democracy, for it
is the means to hold official s accountable to the people.” Citizens United v. Fed.
Election Comm. , 558 U.S. 310, 339, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Therefore, “political speech must prevail against laws that wou ld suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requi res the Government to prove tha t the restriction ‘furthers a compelling interest and is narrowly tailored to ach ieve that interest.’ ”
Id. at 340, quoting Fed. Election Comm. v. Wisconsin Right to Life, Inc. , 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). See also Disciplinary Counsel
v. Tamburrino , 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 18 (“It is undisputed that Jud.Cond.R. 4.3 is a content-based regulation o f political speech
and therefore must withst and strict scrutiny * * *”). {¶ 67} If Prof.Cond.R. 8.2(a) is construe d by this court to permit dis cipline for negligently made statemen ts about the judiciary, it cannot withstand a strictscrutiny analysis of its constitutionality. Importantly, the d isciplinary authority has the burden to demonstrate that the attorney’s factual statement s were false, see New
York Times Co. , 376 U.S. at 271, 84 S.Ct. 710, 11 L.Ed.2d 686, yet the rule a llows an attorney to be disciplined for true statements that a reason able attorney would
think are false rather than requiri ng a finding of actual falsity. The rule is therefore overinclusive in that it prohibits true statements that attorne ys should think are false, and it is underinclusive in that it does not prohibit st atements that are false but that a reasonable attorney would assume to be true. See Ladue v. Gilleo , 512 U.S. 43, 52-53, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (noting t hatJanuary Term, 2021

31 underinclusiveness “diminish[es] the credibility of the governm ent’s rationale for restricting speech”). The application of the rule can be more narrowly tailored simply by removing our construc tion that it applies an objectiv e, negligence standard and replacing that with w hat the plain language requir es—actual malice. Therefore, the rule is not narrowly tailored to serve the inter est—preventing false statements about the judi ciary—furthered by it. {¶ 68} Gardner has been abrogated by our adoption of Prof.Cond.R. 8.2(a), and anything that remains of it is too unconstitutionally infir m to salvage in light of the Supreme Court’s decision in Republican Party of Minnesota . To hold
otherwise would be to declare that political speech by judges i s more protected than political speech by lawyers. Tha t outcome cannot be constituti onally sound. {¶ 69} “[A] fundamental understanding of constitutional democracy” is that “judges are not imperial.” State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21, overruled by State v. Harper , 160 Ohio St.3d 480, 2020- Ohio-2913, 159 N.E.3d 248. Statement s made by judicial candida tes are protected by the First Amendment as political speech: the First Amendment prohibits states from providing for judicial el ections “ ‘under conditions of st ate-imposed voter ignorance.’ ” Republican Party of Minnesota , 536 U.S. at 788, 122 S.Ct. 2528, 153 L.Ed.2d 694, quoting Renne v. Geary , 501 U.S. 312, 349, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (Marshall, J., dissenting). In contrast, Gardner’s objective
standard burdens and chills the political speech of attorneys, who must think twice before criticizing a prior judicial ruling out of concern that it might subject the attorney to discipline. Silencing criticism of the judiciary, however, does not serve the governmental interest in public confidence in the court sys tem: “ ‘[t]he First Amendment directs us to be especi ally skeptical of regulations that seek to keep people in the dark for what the government perceives to be thei r own good.’ ”
Sorrell v. IMS Health Inc. , 564 U.S. 552, 577, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011), quoting 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 503, 116 S.Ct.S UPREME C OURT OF O HIO

32 1495, 134 L.Ed.2d 711 (1996) (lead opinion). Because depriving the public of information about the judges it elects—information that a reaso nable attorney would not dare to utter even if true—does nothing to advance a compelling state interest, I would overrule Gardner today. {¶ 70} I would dismiss the complaint against Morton based on the plain language of Prof.Cond.R. 8.2(a). M orton makes assertions of fa ct that only Chief Justice O’Connor, Justice French, and I could know to be true o r false. He asserts
that Justice French and I decided Moskowitz v. Cuyahoga Cty. Bd. of Revision , 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, for political rea sons and that Chief Justice O’Connor delayed a decis ion in that case until new memb ers of the court
came on the bench. A reasonable attorney might assume these as sertions are false, but that is not clear and convincing proof of the subjective mo tivations of members of this court in deciding Moskowitz . There was no evidence presented in this disciplinary proceeding that Mor ton’s statements are indeed fal se. Chief Justice O’Connor, Justice French, and I were not asked to provide testi mony to establish that Morton’s statements had no basis in fact, and I cannot use my own knowledge of my motivations to establish a fact not proven below. And al though the majority points out that Morton “made no investigation and relie d solely upon his own interpretation of the facts in ma king his statements” (emphasis sic), majority opinion at ¶ 23, the Supreme Cour t has held that “mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth,” Gertz v. Robert Welch, Inc. , 418 U.S. 323, 332, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Relator therefore failed to prove that Morton made false statem ents with actual
malice. {¶ 71} Our country has a “profound national commitment to the principl e that debate on public issues shoul d be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasant ly sharp attacks on government and public officials.” New York Times Co. , 376 U.S. at 270, 84January Term, 2021

33 S.Ct. 710, 11 L.Ed.2d 686. Based on this fundamental principle , I would overrule
Gardner and hold that attorneys are subj ect to discipline only for stat ements that disparage the judiciary when they are (1) proven to be a false statement of fact, and (2) the statement was made withactual malice—with knowledge th at it was false or with reckless disregard for its truth. In this case, there is no evidence that Morton made false statements either with knowledge or with a reckless disregard for the truth about members of this court, and therefore I would dismis s the complaint alleging that he committed professional misconduct. Because th e majority does not, I dissent.

_________________ D E W INE , J., dissenting. {¶ 72} I just don’t see it. Today, the majority suspends John Morton from the practice of law for saying some not-so-nice things about th is court in a brief that he filed. My skin is not so thin as to think that such punishm ent is warranted. Nothing Morton said has been shown to be untrue. And neither t he First Amendment nor our disciplinary rules allow us to punish an atto rney just because something he says gets under our skin.
What Morton Said {¶ 73} Morton filed a jurisdictional me morandum asking this court to h ear a property-tax case. The gist of his argument was that a previ ous decision of this
court, Moskowitz v. Cuyahoga Cty. Bd. of Revision , 150 Ohio St.3d 69, 2017-Ohio4002, 78 N.E.3d 870, had been wrongly decided. In Morton’s vie w, the Moskowitz court had incorrectly placed the burden on the taxpayer to show that the value assigned to a property by a county’s fiscal office was incorrec t. {¶ 74} In support of this claim, Morton analyzed the caselaw cited in Moskowitz and argued that this authority did not support the legal concl usion reached by the court. In additi on to presenting his legal argument as to whyS UPREME C OURT OF O HIO

34 Moskowitz was wrongly decided, Morton speculated as to the reasons for t he court’s purported error. And here is whe re he got himself into hot wat er. {¶ 75} Morton (correctly) took note of the fact that the Moskowitz case took an extraordinarily long time for t his court to decide. He poin ted out that the case had been argued before one of this court’s master commissioners on December 3, 2015, but that no decision was issued until May 30, 2017. He a lso noted that the delay meant that two new justi ces (including the undersigned) r eplaced two justices who had retired while the case was pending. Morton reviewed de cisions authored by the justices who had been replaced and asserted that they li kely would have been
more favorable to his client’s position than their replacements

. {¶ 76} Morton blamed the chief justi ce for the delay in deciding Moskowitz , saying that “it would not have been tolerated without her appro val.” And he speculated that the motivation behind the decision in Moskowitz was to advance Justice French’s future leadership of the court. Morton then c ritiqued several opinions authored by Justice French, including Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision , 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004 (French, J., dissenting), and Schwartz v. Cuyahoga Cty. Bd. of Revision , 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223 (French, J., dissenti ng), and he
concluded that Justice French had “persistently and incorrectly maintained that this Court should defer” to taxing au thorities. Noting that Justice Kennedy had joined
Justice French’s dissent in Schwartz , Morton opined that “Justices French and Kennedy thereby showed a willingne ss to favor the government, a t the expense of the taxpayer and the Constituti on, no matter how unreasonable t he government’s
view of the true value of the subject property.” {¶ 77} He summed it all up with some st rong claims: the “political goa l of
the Moskowitz Court was to maximize government revenue, at the expense of th e taxpayer, and his or her Constitutional right to limited taxati on” and “the politicalJanuary Term, 2021

35 agenda of the Moskowitz Court was the promotion of the leadership of Justice
French on this Court.” {¶ 78} What Morton said wasn’t very respectful. One can certainly disagree with his analysis of the cases cited in his brief. An d some of what he said was based on some fairly wild speculation. But I am not convin ced that it is grounds for a suspension fro m the practice of law. Punishing Attorney Criticism of Judges {¶ 79} Judges don’t like to be criticize d. (Indeed, who does?) But j udges are public officials. And if the First Amendment protects anyt hing, it protects the right of citizens to critic ize their government. {¶ 80} The United States Supreme Cour t has recognized that judges don’ t have a special dispensation to punish attorney speech they disl ike; instead, “[t]he law gives ‘[judges] as persons, or courts as institutions * * * no greater immunity from criticism than other persons or institutions.’ ” (Ellipsi s in original.) Landmark Communications, Inc. v. Virginia , 435 U.S. 829, 839, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), quoting Bridges v. California , 314 U.S. 252, 289, 62 S.Ct. 190, 86 L.Ed. 192 (1941) (Frankfurter, J., dissenting); see also Garrison v. Louisiana , 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). {¶ 81} In Garrison , the Supreme Court held tha t the actual-malice standard first adopted in New York Times Co. v. Sullivan , 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applied to attorney speech critical of t he judiciary. Speech directed at official conduct, the court explained, was the “ess ence of selfgovernment.” Garrison at 75. And the commitment t o wide-open debate about public issues embodied in the First and Fourteenth Amendments p rotected “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. , quoting New York Times v. Sullivan at 270. Though Garrison arose out of a criminal prosecuti on, there is nothing in the op inion that limits its reach to that context. To the contrary, its holding that the j udiciary may not stifleS UPREME C OURT OF O HIO

36 unflattering speech to protect its reputation applies with the same force to attorneydiscipline proceedings. {¶ 82} Thus, it should not be a surprise that our Rules of Profession al Conduct adopt the New York Times v. Sullivan standard. Prof.Cond.R. 8.2(a) provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concernin g the qualifications or integrity of a judicial officer * * *.” This echoes almost pre cisely the holding of
New York Times v. Sullivan : a statement is made with actual malice when it is made “with knowledge that it was false or with reckless disregard of whether it was false
or not.” Id. at 280. {¶ 83} In adopting the New York Times v. Sullivan standard, this court followed the lead of the American Bar Association (“ABA”). Mod el Rule 8.2 of
the ABA Model Rules of Professi onal Conduct 8.2 says that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reck less disregard to its truth or falsity concerning the qualifications or integrity of a judge.” ABA, Model Rules of Professional Conduct , Rule 8.2 (1993). Not only does the ABA rule recite the actual-malice standard, but in the background to the rule, its drafters explicitly
stated that false statements a bout judges are held to the same standards as those concerning other public officials. See Model Rules of Professional Conduct , Proposed Final Draft , 206 (1981). {¶ 84} Despite explicitly adopting the actual-malice standard, we have drifted away from the applicati on of that standard in our Prof. Cond.R. 8.2 jurisprudence. Under New York Times v. Sullivan , a subjective standard applies to
measure whether a fals e statement is made with knowledge of or with reckless disregard for its falsity. We have held, however, that a “reas onable attorney” standard—or objective-malice standard—applies to determine whet her a statement is made with knowledge of or reckless disregard for its falsity

. Disciplinary
Counsel v. Gardner , 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425.January Term, 2021

37 {¶ 85} As the other dissenting opinion demonstrates, this objective-m alice standard is incompatible not onl y with the text of Prof.Cond.R. 8.2(a) but also with
the First Amendment. See Garrison , 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. And there is equally good reason to think that such a standard runs afoul of the Ohio
Constitution. See Ohio Constitution, Article I, S ection 11 (“Every citizen may freely speak, write, and publish his sentiments on all subjects , being responsible for the abuse of the right; and no la w shall be passed to restrain or abridge the liberty of speech * * *”). I agree with t he other dissenting justice t hat we should overrule
Gardner and its objective standard. B ut even under the objective stan dard, it is clear that Morton may not be s anctioned for his comments. Even Under the Majority’s Objective-Ma lice Standard, Morton is Not Subject to Discipline {¶ 86} Though I agree that we should retu rn to an actual-malice stand ard for attorney-discipline cases, it is not necessary that we do s o to find that Morton’s speech is constitutionally protect ed. The malice standard deal s with a speaker’s knowledge or recklessness in making a false statement. New York Times v.
Sullivan , 376 U.S. at 280, 84 S.Ct. 710, 11 L.Ed.2d 686. Here, though, there has been no showing that Morton’s st atements are false. Moreover, as I will explain,
his statements are best underst ood as statements of opinion bas ed on fully disclosed facts. And regardless of whether we apply an actual-malice sta ndard or the majority’s objective-malice standard, such statements are entit led to constitutional protection. {¶ 87} The fact that some courts hav e found it appropriate to apply a n objective-malice standard for a ttorney criticism of judges does n’t mean that other First Amendment protections do not apply. Standing Commt. on Discipline of the United States Dist. Court for the Cent. Dist. of California v. Yagman , 55 F.3d 1430, 1438 (9th Cir.1995); Berry v. Schmitt , 688 F.3d 290, 302-303 (6th Cir.2012). Thus, “attorneys may be sanctioned fo r impugning the integrity of a j udge or the courtS UPREME C OURT OF O HIO

38 only if their statements are fals e; truth is an absolute defens e.” Yagman at 1438, citing Garrison , 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125; accord Berry , 688 F.3d at 303; Iowa Supreme Court Attorney Disciplinary Bd. v. Weaver , 750 N.W.2d 71, 81 (Iowa 2008); State ex rel. Oklahoma Bar Assn. v. Porter , 766 P.2d 958, 969 (Okla.1988). As the Supreme Court explained in Garrison at 74, “Truth may not be the subject of either civil or criminal sanctions where disc ussion of public affairs
is concerned.” {¶ 88} Further, disciplinary counsel bears the burden of proving fals ity.
See Yagman at 1438; Philadelphia Newspapers, Inc. v. Hepps , 475 U.S. 767, 776- 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); see also Disciplinary Counsel v. Squire , 130 Ohio St.3d 368, 2011-Ohio-5578, 958 N.E.2d 914, ¶ 34 (“In attorney disciplinary proceedings, relato r bears the burden of proving, by clear and convincing evidence, the facts n ecessary to establish a violati on of a Disciplinary Rule”). {¶ 89} Here, nothing that Morton said w as demonstrably false. This c ourt doesn’t explain why some cases tak e longer to decide than other s—and it certainly offered no explanation for the delay in issuing the Moskowitz decision. So, we can’t proclaim his theory for the delay to be false. And while we ma y bristle at Morton’s characterization of our motivations as “political,” there is no thing that objectively disproves the characterization. Indeed, the majority offers it s own possible cause of the delay (record numbers of tax appeals in the three to fou r years before the
decision in Moskowitz was issued) but presents no mo re proof for its explanation
than does Morton. {¶ 90} Moreover, Morton didn’t just make accusations. He explained t he
basis for them. He rooted his a ssertion that the process was b eing manipulated for political ends and to foster Justice French’s leadership in thi s court’s extended delay in deciding the Moskowitz case. And he cited judicial opinions—complete withJanuary Term, 2021

39 case citations—to support his opi nion that the named justices f avored “the government, at the expense of t he taxpayer and the Constitution .” {¶ 91} Morton’s assertions are best understood not as false statement s but rather as statements of opinion based on fully disclosed facts. See In re Green , 11 P.3d 1078 (Colo.2000). And these types of statements are widel y understood to be entitled to constitutional protection. See, e.g. , Berry , 688 F.3d at 303-305; Biospherics, Inc. v. Forbes, Inc. , 151 F.3d 180, 185 (4th Cir.1998). {¶ 92} The Colorado Supreme Court’s decision in In re Green illustrates this point. There, in the course of an ongoing proceeding, an attorney wrote several letters to the judge with copies to opposing counsel and filed a motion to recuse the judge. In these writings, the attorney leveled a number of cha rges at the judge, including labeling him as a “racist and bigot” and accusing him of an unfavorable
“bent of mind.” Green at 1082. The Colorado high c ourt concluded that because the attorney’s writings “disc lose[d] fully the facts upon which [the attorney] based his opinion,” they could not be actionable. Id. at 1085. “We view Green’s
statements * * * as statements of opinion based on fully disclo sed and uncontested facts,” the court explained. Id . at 1086. Accordingly, the court could not, “consistent with the First Amendment,” discipline the attorney “for his subjective opinions, irrespective of our disagreement with them.” Id. And because the accusations constituted statements of opinion, the court found it unnecessary to
reach the issue of malice. {¶ 93} Of a similar ilk is the Ninth Circuit’s decision in Yagman , 55 F.3d 1430. There, the court explained that under the First Amendmen t, “[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.” Id . at 1439. The rationale is straightforward: “When the facts underlying a statem ent of opinion are disclosed , readers will understand they are getting the author’s interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence ofS UPREME C OURT OF O HIO

40 additional, undisclosed facts.” Id. Such a statement “ ‘reveals its lack of merit’ ” and “ ‘readers are free to accept or reject the author’s opinio n based on their own independent evaluation of the facts.’ ” Id ., quoting Redco Corp. v. CBS, Inc. , 758 F.2d 970, 972 (3d Cir.1985). {¶ 94} Thus, in Yagman , the Ninth Circuit found that even under the objective-malice standard applie d by the majority today, an att orney could not be sanctioned for calling a judge anti-Semitic and accusing the ju dge of having a penchant for sanctioning Jewish a ttorneys, because the attorney disclosed the facts upon which he drew these inferences. Id. at 1440. {¶ 95} Similarly, the Sixth Circuit ha s adopted the objective-malice standard for attorney speech, but it too has found that an opin ion based on fully
disclosed facts cannot constituti onally form a basis for attorn ey discipline. Berry , 688 F.3d at 303. Thus, the court held that Kentucky officials strayed beyond constitutional boundaries when they disciplined an attorney und er that state’s version of Prof.Cond.R. 8.2(a) for criticizing an investigation conducted by an adjudicatory body. Because the attorney “provided the public w ith the facts upon which his opinion relied,” the public was “free to investigate * * * and draw its own
conclusions.” Id. at 304. {¶ 96} The same holds true for Morton. Morton didn’t pretend that he had
some secret information about the inner workings of the court a nd the motivations of individual justices. He laid out the facts supporting his p remises for all to see. Thus, a reader of Morton’s jurisdictional memorandum would have seen not only Morton’s conclusions but also the thin reed on which they reste d. The reader could decide for himself whether the delay in issuing the Moskowitz opinion demonstrated
that the court’s motivations w ere political. And the reader co uld read the opinions cited by Morton and determine if they, in fact, supported his a ssertion that the named justices favored “the gove rnment, at the expense of the t axpayer and the
Constitution.”January Term, 2021

41 {¶ 97} Morton has not been shown to have made any false statements. A nd he fully disclosed the facts upon which his opinions about this court were based. Thus, the First Amendment precludes this court from disciplinin g Morton for what
he said about this court.
To What End? {¶ 98} In disciplining Morton, the majority runs roughshod on First Amendment protections, and for wh at? The closest the majority comes to providing any justification for the punish ment it metes out are vague ref erences to the need to protect the integrity of the judi ciary. But even if such a con cern were sufficient to
override First Amendment protections (it’s not, see Garrison ), it is hard to see how punishing Morton does anything to advance that aim. {¶ 99} Morton made his claims in a singl e filing to this court. No me mber of the public voiced any concern—indeed, this case presents the unusual situation in which a disciplinary committee filed a complaint on its own initiative without any grievance being filed. But for the filing of the disciplin ary complaint, Morton’s musings would have been largely unheard. Notwithstanding the m ajority’s concern that Morton’s filing is “readily accessible to the public on th is court’s online docket,” majority opinion at ¶ 35, it’s difficult to imagine th at many members of the public would have made their way to his filing. Most likel y, the only people
who would have read Morton’s char ges would have been members of this court, our staff, and opposing counsel. The only reason that Morton’s grievances will get any public attention at all is because the disciplinary committ ee chose to go after him and because this court chooses to punish him. {¶ 100} So, the reason to discipline Morton can’t be because he has somehow caused public harm to the reputation of the judiciary. And one has to assume that the motivation to discipline Morton isn’t simply hu rt feelings among members of this court. Rather, it must be because the majority wants to preventS UPREME C OURT OF O HIO

42 future Mortons from leveling similar attacks on this court. An d therein lies the biggest problem with the m ajority’s decision today. {¶ 101} Our system of government is pre mised on the idea that citizens will
serve as a check on the institu tions of government. To this en d, a “major purpose”
of the First Amendment is to “ protect the free discussion of go vernmental affairs.”
Mills v. Alabama , 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). And , of course, “the operations of the courts and the judicial condu ct of judges are matters of utmost public concern.” Landmark Communications, Inc. , 435 U.S. at 839, 98 S.Ct. 1535, 56 L.Ed.2d 1. {¶ 102} The notion advanced by the majo rity today that it is appropriat e to stifle speech to protect the public reputation of the judiciary has been emphatically rejected by the United Sta tes Supreme Court:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized Ameri can privilege to speak one’s mind, although not always with perfect good taste, on all public instituti ons. And an enforced silenc e, however limited, solely in the name of preserving the dignity o f the bench, would probabl y engender resentme nt, suspicion, and contempt much more than it would enhance respect.

(Footnote omitted.) Bridges , 314 U.S. at 270-271, 62 S.Ct. 190, 86 L.Ed. 192. Thus, the Supreme Court has made clear that “speech cannot be p unished * * * ‘to protect the court as a mystical entity or the judges as individ uals or as anointed priests set apart from the community and spared the criticism t o which in a democracy other public ser vants are exposed.’ ” Landmark at 842, quoting Bridges at 292 (Frankfurter, J., dissenting).January Term, 2021

43 {¶ 103} No doubt, by disciplining Morton a nd others who disparage this court, the majority will make other attorneys think twice befor e they criticize us. What attorney wants to risk his very livelihood by saying somet hing to which this court takes umbrage? {¶ 104} Stifling attorney criticism comes at a high cost. Attorneys, b y virtue of their education, train ing, and experience with the ju dicial branch, are in the best position to “recognize, understand, and articulate pro blems with the judiciary” and “to comment on th e judiciary and judicial qualif ications.” Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation , 97 Geo.L.J. 1567, 1601. This is p recisely the information th at the public needs “to make informed decisions about the judiciary, to fulfill the selfgoverning role, and chec k judicial abuses.” Id. {¶ 105} Today’s decision will make attorneys hesitant to assert opinion s critical of the court. Not just attorneys like Morton whose as sertions some may consider outlandish, but also the more cautious and the more in sightful. By chilling attorney criticism of the judici ary, we “forestall[] the public ’s access to the thoughts of the very class of people in daily contact with the judicial system” and “shield the judiciary” from those best situ ated “to advance knowledgeable c riticism.” Porter , 766 P.2d at 968. That’s not good for self-government. And it’ s not consistent with
the commitment to robust debate tha t is central to our First Am endment.
Conclusion {¶ 106} In disciplining Morton, the majority ostensibly acts to protect the public reputation of this court. But by placing concerns for i ts own reputation ahead of the constitutional principles we have sworn to uphold, the m ajority damages this institution in ways far mo re profound than any harm done by Mor ton. I dissent.

_________________ Thompson Hine, L.L.P., Frank R. DeSantis, and Karen E. Rubin; a nd Heather M. Zirke and Christophe r J. Klasa, Bar Counsel, for rel ator.S UPREME C OURT OF O HIO

44 J. Alex Morton, pro se.

_________________