Is the R.I. AG’s tweet out of order or protected by the First Amendment? – The Boston Globe

So Procaccini agreed to postpone Neronha’s appearance until 9:30 a.m. Friday. But in granting that request, the judge made clear, “Attorney General Neronha is ordered to appear. It is also ordered that there will be no further continuances of this matter.”

However, Neronha doesn’t think he should have to go before the judge. And his office has filed a motion saying so — a motion the judge has yet to rule on.

We asked David A. Logan, a former Roger Williams University School of Law dean who has studied and written extensively about First Amendment issues, to provide Rhode Map with an analysis of this high-profile clash of competing rights, rules, and responsibilities.

Let’s look at Neronha’s argument.

Miriam Weizenbaum, chief of the attorney general’s civil division, wrote in the motion that the judge’s order to appear violates Neronha’s First Amendment right as a member of the public to comment on public affairs. She also argued that the order violates due process and intrudes on Neronha’s “constitutional responsibility to represent the public interest and keep the public apprised as to matters of public policy.”

But AG Neronha isn’t only a public citizen. As a lawyer, he must adhere to the state’s Rules of Professional Conduct, which prohibit “extrajudicial statements” outside the courtroom that “would have substantial likelihood of materially prejudicing” a jury or judge. The rules also require lawyers to show respect for the legal system, including judges.

The assault case in question was being decided by a judge rather than a jury. Indeed, that was the subject of Neronha’s posts on X (formerly Twitter). He noted that in federal courts, prosecutors must agree to so-called bench trials. But in state courts, defendants can get bench trials without approval from prosecutors.

When an online commenter asked if that can be changed, Neronha wrote, “We’re going to try. When some judges never oversee a jury trial it’s not a coincidence.”

Some saw that as a swipe at Judge Procaccini, who has, in fact, handled many jury trials. (He ended up dismissing the assault charge.) But Weizenbaum argued that the attorney general’s comments addressed a broader policy matter and were not meant as criticism of an individual judge.

In his analysis, Logan noted that, “There are specific rules that govern what a lawyer can say or write, especially when the words concern an ongoing proceeding in which the lawyer is involved.”

He said those rules aim to strike a balance between a lawyer’s First Amendment right to free speech and the need to limit the harm that such speech could do to the fairness of a trial in progress.

”However, these rules recognize that the impact of such speech is likely to be minimal when a case is tried without a jury, on the assumption that judges will not be swayed by such speech,” Logan wrote. “The free speech argument is even stronger when the speaker is raising generalized concerns about the administration of justice rather than focusing on the merits of a particular case that is under deliberation.”

Also, Logan said, “When the speaker is the chief law enforcement officer in the executive branch, separation of powers principles tilt toward protecting commentary that involves a matter of public concern, like whether criminal cases should be tried without a jury.”

His conclusion? “I do not see any basis for a judge (or state bar) sanctioning a lawyer for the statements made by the attorney general.”

However, “the [tweet] that suggests that the presiding judge is somehow biased against jury trials might be a closer question.”

He added, “This is not to say that tweeting about a case that is under consideration is wise — there is an old caution of ‘not poking the bear’ — but rather that such speech is likely protected by the First Amendment as well as the ethical rules that all lawyers, including the attorney general, must follow.”

Let’s see if Judge Procaccini agrees.

This story first appeared in Rhode Map, our free newsletter that also contains links to other important Rhode Island stories, information about local events, and more. If you’d like to receive it via email Monday through Friday, you can sign up here.

Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.