PROVIDENCE, R.I. (WPRI) – The last time a Superior Court judge in Rhode Island took issue with comments made by a sitting attorney general, the case went all the way to the state’s Supreme Court.
Then-Attorney General Patrick Lynch’s scuffle with Judge Michael Silverstein during the high-profile lead paint trial is resurfacing now in the wake of a judicial order Friday summoning Lynch’s successor, Peter Neronha, to appear in court.
Superior Court Judge Daniel Procaccini has demanded Attorney General Peter Neronha appear in his courtroom on Dec. 5, after Neronha posted critical comments on social media about a case before Procaccini. Neronha was taking aim at so-called bench trials, where a single judge decides a defendant’s fate rather than a jury. Procaccini often presides over such trials.
Neronha’s office declined to comment on the order to appear before Procaccini, but over the weekend the attorney general posted on X (formerly Twitter), “Twitter friends and followers: when I’m exercising my First Amendment right and you don’t like my observations – there’s always that mute button. I find it useful from time to time.”
The earlier episode led the R.I. Supreme Court to examine the tension between the First Amendment and so-called gag orders. In 2008, the high court tossed out a total of $15,000 in fines that Silverstein had levelled on Lynch for a quote the attorney general gave to a reporter and later for another comment on his website.
Two years before the Supreme Court decision, a jury decided that three paint manufacturers had to pay billions of dollars in damages for making and selling lead paint decades earlier. The money was going to be used to mitigate lead paint cleanup statewide, and the case was watched closely around the country.
After a pre-trial hearing, as Lynch was being pressed by a reporter, he said one of the defendants was trying to “spin and twist the facts.”
The comment did not sit well with Silverstein.
Lynch appeared before the court two days later and Silverstein found the attorney general in contempt of a gag order he issued earlier on in the case, fining him $5,000.
The following year, after a jury sided with the state in the case, Lynch lauded the decision on his office’s website, writing: “The companies failed to step up and clean up the problem they created. The legal process has held them accountable and said you can’t duck and run.”
The lead paint companies filed a motion arguing that Lynch had again violated Silverstein’s order with the “duck and run” comment, and the judge agreed, fining the attorney general $10,000.
In 2008, the Supreme Court sided with Lynch on the contempt order – while handing him a devastating defeat, overturning the jury’s verdict and ruling the public nuisance law did not apply in the lead paint case. The decision ended an eight-year legal battle that had begun under Lynch’s predecessor, Sheldon Whitehouse.
Writing for the majority, Justice Francis Flaherty found that the “spin and twist” comment Lynch did not violate Silverstein’s initial order requiring all parties to refrain from public comments about the case that might taint a jury. But Flaherty wrote, “the record does not support the conclusion that the attorney general knew or reasonably should have known that his remarks could create a substantial likelihood of material prejudice.”
Flaherty also tossed out the fine for Lynch’s subsequent “duck and run” comment, finding that Silverstein’s subsequent gag order following Lynch’s first comment was “unenforceable because it was not sufficiently clear to be the basis of a contempt finding.”
“The court’s order on Dec. 6, 2005, directed the attorney general ‘to cease and desist from making any subjective characterizations of the defendants or any of them or of their agents, servants or attorneys,’” Flaherty wrote. “In our opinion, the term ‘subjective’ was too vague and imprecise to allow for a subsequent finding of contempt.”
While Procaccini did not call Neronha to court on Dec. 5 specifically for a contempt hearing, the issues at hand may be similar to the Lynch case: an elected official’s comments clashing with the interest of the courts.
Procaccini never ordered a formal gag order in the case that Neronha was commenting about. Those are sometimes issued to try and preserve a neutral jury; here, Procaccini was the sole factfinder so there was no jury to insulate.
A video of Procaccini’s comments in court on Friday, posted by The Providence Journal, shows the judge explaining his order for Neronha to appear by saying, “There was conduct that this court is troubled by and needs to be addressed by the attorney general’s office.” He referred to an “incident” that happened on Nov. 8 at 7:30 a.m.
That was the time when Neronha posted this message on X: “Random thought before 8 am bell rings: in federal system, the prosecution must agree to a jury-waived trial in addition to the defendant. In state system, only the defendant must agree. That’s a real weakness for our state system – & should be changed. Victims deserve justice too.”
The attorney general went to add, in response to a commentor who replied to his initial post, “When some judges never oversee a jury trial it’s not a coincidence” – an apparent reference to Procaccini.
It’s possible Neronha on Dec. 5 will cite the First Amendment arguments made in Lynch’s case, depending on where Procaccini directs the hearing. (A request to talk to the judge through a court spokesperson was unsuccessful.)
Gag orders, and the degree to which public figures can be silenced by judges, has become a national issue in recent weeks, as former President Donald Trump appeals efforts to stop him from commenting on his various cases.
In their 2008 decision, Rhode Island’s justices were careful to write that judges face an “enormous burden” in controlling proceedings like the lead paint case, which came with “a significant amount of local and national media glare, public posturing, and a high level of general interest.”
“Our reversal should in no way be interpreted as a criticism of the prodigious effort of the trial justice to control this litigation and keep all parties and counsel focused on the legal issues,” Flaherty wrote of Judge Silverstein, who retired in 2018. “Despite our vacating of the contempt orders, we continue to have enormous respect for this conscientious and scholarly trial justice.”