Academic journal article The Review of Litigation

Speaking Out: Lawyers and Their Right to Free Speech

Academic journal article The Review of Litigation

Speaking Out: Lawyers and Their Right to Free Speech

Article excerpt

I. Introduction

All around the country every day, lawyers' freedom of speech is curtailed by the legal system. That a lawyer, as an "officer of the court," should face more stringent standards than the ordinary citizen as to what he can say and when he can say it is a principle long since codified into the legal profession's rule books and bar manuals. Be that as it may, there is a line of cases and a corresponding history of court opinions, dissents, and commentary that has questioned the extent of these heightened restrictions. The basic argument is that this country's lawyers, whatever else they may be, are American citizens, and should only be deprived of their First Amendment rights in extraordinary circumstances. Thus, while it is generally accepted that a lawyer's First Amendment rights are limited, the precise boundaries of these limits continue to blur and shift.

In July 1998, the Texas Supreme Court rendered a decision that probed this boundary,1 making it the most recent contributor to this discussion in which more and more practicing attorneys are becoming involved. Given the rather recent explosion of the mass media, and the increasing ease with which special interest groups and individuals may publicly disseminate their views, lawyers are more frequently fighting surreptitious battles outside the courthouse, and the traditionally strict restrictions on their speech deny them of their only weapon. The lawyer in the Texas case, for instance, arguably found himself fighting not only his opponent, but also a vociferous political group determined to taint the jury pool against him.2 And, in a recent United States Supreme Court case, a lawyer battled against an allegedly corrupt police department that enjoyed free access to the public's televisions and newspapers.3

This Note attempts to simplify-and to some extent to question-the law restricting attorneys' free speech rights. Accordingly, the Note makes explicit the basic factors that courts will consider when faced with such a restriction. It also points out that the United States Supreme Court has come a long way in recognizing a lawyer's right to speak freely and may not be (too) far from significantly enlarging such rights.

Part II will set forth the general problem of speech restrictions arising within a specific context. Section A of Part II will provide the relevant facts of Commission for Lawyer Discipline v. Benton, to which the Note will frequently refer as its running example. Section B will introduce the disciplinary rule by which Benton was reprimanded, and it will consider the inherent ambiguities of the rule, a version of which governs the majority of the nation's lawyers.4

Part III will set forth the factors and distinctions that the courts will use to consider the constitutionality of the specific speech restriction at issue. First, Section A will provide the general constitutional distinctions recognized by the Supreme Court to govern all free speech cases. Section B will distinguish between a lawyer's comments during a pending trial and those spoken after or without regard to a trial. Section C will distinguish the various means by which the attorney may communicate his message. Finally, Section D will consider the recently recognized distinction between a lawyer's commercial and political speech.

Part IV will then consider the various compelling state interests that have historically been used to justify restrictions on a lawyer's speech. It will consider whether some or most of these interests might be avoided simply by choosing carefully the context in which to express one's views. Moreover, it will consider whether some of the purported interests are themselves open to constitutional challenge.

Finally, Part V will conclude by returning to Benton to apply the factors set out by other courts to that specific case, and by suggesting how Benton might have avoided the costs and inconveniences, and ultimately the punishments, that resulted from his speech. …

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