I chanced upon Prof. Erwin Chemerinskly’s lecture given some years back on the recurring constitutional and ethical issues involving “lawyer speech under the First Amendment”. He proposes a liberal view of lawyer speech. I wish to summarize and discuss its salient points, for purposes of legal research of the visitors of this blog.
In most high profile cases, judges have imposed gag orders on the attorneys and parties precluding them from speaking with the press. Additionally, new rules have been adopted restricting lawyer speech. For instance, California has adopted a rule which prohibits attorneys from making statements that have a “substantial likelihood of materially prejudicing an adjudicatory proceeding.” At the same time, attorneys often find themselves the subject of disciplinary action for their speech critical of judges. In 1998, the US District Court in California proposed that attorneys should be subject to discipline for any false statement impugning a judge.
These restrictions came at a time when there was an increased demand for attorneys to talk to the press. The lessons the media learned from the O.J. Simpson case were that trials made great television and that there was a large audience for high publicity cases. As the media increasingly followed high profile cases, there was ever greater pressure on lawyers to talk with the press. Judges and bar disciplinary authorities were responding by cracking down and trying to limit lawyer speech.
Prof. Chemerinskly’s concluded that “lawyers should be prohibited only from making statements that they know to be false or that are made with reckless disregard of the truth.” He stated that “false speech serves little First Amendment purpose and there is no reason to constitutionally protect expression that is uttered with knowledge that it is false”. He added: “Otherwise, however, all attorney speech about pending cases should be unregulated, both by rules of professional conduct and by court orders.”
He argued that lawyer speech was desirable. Lawyers have First Amendment rights and requiring attorneys to relinquish them as a condition of membership in the bar should be viewed as an unconstitutional condition. A lawyer’s duty to “zealously represent a client” often is best served by the attorney speaking to the press. “Attorney speech about pending cases can advance the interests of the client and the justice system”, he stared. He added that “attorney speech about pending cases and about courts should be regarded as political speech protected by the core of the First Amendment. Restrictions should be tolerated only if strict scrutiny is met.”
There are questions as to whether the “clear and present danger test” or some less protective approach should be followed. It seems that no one has advocated that attorneys be subject to discipline “only if it is proven, with clear and convincing evidence, which an attorney made a statement knowing it to be false or with reckless disregard of the truth.” Prof. Chemerinskly’s claims that it is the best standard “because it is the most protective of speech, it is not vague or overbroad, it serves the goal of preventing the speech most likely to cause harm, and it has the virtue of a large body of case law defining it.”
Judges understandably want to control the cases before them and wish that all else would go away. Gag orders give them at the least the sense of more control. But all of this ignores the First Amendment and the strong presumption that more speech is better, that rarely is the public interest served by government-enforced silence, and that the best remedy usually is more speech not less, he argues.
The American rule is that “political speech–speech about government and government officials–is protected by the very core of the First Amendment.” Debate on public issues should “be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Government may restrict speech about government and government officials “only if strict scrutiny is met.”
Courts are a part of the government; therefore, court proceedings are government action. Therefore, attorney speech about what is pending or occurring in a court is political speech. Any speech about a judge or a judge’s rulings fits squarely within the First Amendment.
In addition, strict scrutiny is appropriate because regulations, whether as rules of professional conduct or as gag orders, are “content-based restrictions on speech.” Model Rule 3.6 is explicitly content-based. It provides:
“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”
The exceptions are: a lawyer may state a claim, offense, or defense involved; information contained in a public record; an investigation is in progress; and a warning of danger concerning the behavior of the person involved. Speech is allowed under the rule if its content fits within the exceptions, otherwise it is prohibited.
The court orders on attorneys limiting speech in particular cases are content-based because their application depends entirely on the topic of the speech. The US rule is that “content-based regulations are presumptively invalid and must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny.”
The rules of professional conduct regulating attorney speech and gag orders on lawyers should be allowed only if strict scrutiny is met. Gag orders should also merit strict scrutiny because they are a “prior restraint on speech.” The US Supreme Court has held that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.”
Prior restraints are regarded as particularly undesirable because they prevent speech from ever occurring. Prof. Chemerinskly’s argued: “A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”
The common public perception is that attorney speech about pending cases serves little, if any, useful purpose and that it likely is just a reflection of the lawyer’s desire to use the case for personal fame and profit. Some people declare that lawyers need not say anything to the press to represent their clients effectively.
Prof. Chemerinskly’s disagrees and contends that there are times that effective representation of a client requires statements to the press. First, countering adverse publicity in the media often may require statements to the media. A lawyer cannot take the chance that media publicity has no impact and should counter adverse publicity concerning his or her client.
The First Amendment can tolerate restrictions of speech only if the harm of the expression is proven, while the attorney should always speak out and counter potentially harmful publicity unless the harm is clearly trivial, he added. If there is no gag order and one side is speaking to the press, the other should be able to counter.
The opposition to the above argument is that the better approach would be to silence both sides, as judges have done in most of the high profile cases. But this violates the First Amendment unless strict scrutiny is met. Moreover, it does not solve the problem because gagging attorneys does not prevent publicity that might be adverse to one side or the other. Leaks of information are frequent in high profile cases. Such leaks are virtually impossible to stop.
Even if no attorney or participant in the case ever spoke to the media, there would still be intense coverage of high profile cases. Such media publicity can be adverse to one side or the other and may include false, damaging information. Unless the adverse speech can be answered, there is danger of the public having a false and unfair impression. In such circumstances, attorneys can and should speak out on behalf of their clients, Prof. Chemerinskly’s argues.
Similarly, at times attorneys must speak out to protect their clients’ reputations. He argues that a client who is never prosecuted, or who is prosecuted and acquitted, may have been ill-served by a lawyer who allowed public speculation about his guilt to go unchallenged.
Attorney speech to the media may help to gather crucial evidence. Police and prosecutors may want to speak to the press to gain public assistance in locating witnesses and other evidence. Defense lawyers also often benefit from the public coming forward in response to media publicity.
Attorney statements to the media might help encourage settlement. If an attorney or a surrogate point out weaknesses in the other side’s case, settlement might become more likely. The press provides leverage in cases that are publicly embarrassing to the opposition. By convincing the defense that the matter will be on the front page many more times, a plaintiff’s lawyer can raise a case’s settlement value’ and hasten its conclusion. There is an important public benefit to such private gains. The Supreme Court has emphasized the great benefit to the legal system of settlements and the avoidance of trials.
Clients have interests that transcend a particular case. They seek to use the legal system to reform the law. A plaintiff may bring a lawsuit to challenge an abusive practice. Publicity can be crucial in bringing the abuses to light. More generally, a client may want to use the media attention to educate the public about an issue.
Such public discussion of important social issues has obvious benefits. Attorney speech can foster and direct the dialogue. The legal system often is and should be used to reform society, and publicity can help further the client’s cause and the public’s interest.
At times, attorneys should speak out to generate media interest in their cases with the hope that the public scrutiny will cause judges to be more careful and fair. Some lawyers organize publicity campaigns because they believe that in a divided city, their clients would face unfair prejudice in the courtroom without such a ‘public defense.’” Sometimes the campaigns pay off and significantly influence the trial judges by making them extremely conscious of public scrutiny and of being and appearing to be fair and even-handed, thus, helping ensure that the defendants would receive their fair share of discretionary rulings.
Attorney speech often serves to advance the interests of the client and the interests of society. It is part of the duty of zealous representation.
The question that arises is: Since attorneys are officers of the court, should they be entitled to less free speech protection than others in society.
Some feel that gag orders are particularly justified when applied to lawyers and court personnel because officers of the court have a fiduciary responsibility not to prejudice fair trials and because they have special access to information and a professional responsibility not to thwart a fair judicial process. They argue that collaboration between counsel and the press as to information affecting the fairness of criminal trials is not only subject to regulation but is highly censurable and worthy of disciplinary measures.
There are US Supreme Court rulings holding that restrictions on lawyers should receive less than strict scrutiny. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will rebound to the detriment of the accused or that will obstruct the fair administration of justice. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing the adverse effects of pretrial publicity on the judicial system and on the litigants. Attorneys can be subjected to discipline for criticizing judges because the Constitution does not give attorneys the same freedom as participants in a political debate.
Those who oppose such a view argue that the descriptive statement that attorneys are officers of the court does not justify the normative conclusion that a lesser standard of constitutional review should be used in reviewing restrictions on attorney speech. Even accepting the characterization that lawyers are officers of the court, that says nothing about the duties which are attendant to this role. The descriptive role of attorneys in a judicial system does not resolve the normative constitutional question as to when prior restraints on speech should be allowed. The unique position of lawyers, if anything, justifies more protection for their speech.
To the extent the press and public rely upon attorneys for information because attorneys are well-informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.
Attorneys’ duties to the court always must be assessed in the context of the lawyers’ duties to their clients. An attorney’s clients may be best served by their attorney speaking to the media. Unless there is proof that the court will be harmed by such attorney speech, the duty to clients deserves priority. The argument that attorneys deserve less protection of speech because they are officers of the court rests on the assumption that lawyers’ speech is in some way damaging to the judiciary. That assumption is unsupported. The damage to the legal system from attorney speech remains asserted but never proven.
Applying a lower level of scrutiny to restrictions of attorneys’ speech would be an unconstitutional condition on bar membership. Lawyers would be forced to relinquish First Amendment rights in exchange for their ticket to practice law. The “unconstitutional condition doctrine” is the principle that the government cannot condition a benefit on the requirement that a person forego a constitutional right. The central idea is that the “government may not deny a benefit to a person because he exercises a constitutional right.”
Conditioning a benefit on a requirement that individuals give up their First Amendment rights obviously pressures individuals to forego constitutionally protected speech. The condition “will have the effect of coercing the claimants to refrain from the proscribed speech. The unconstitutional condition doctrine prevents the government from penalizing those who exercise their constitutional rights by withholding a benefit that otherwise would be available.
Applying a lower level of scrutiny to content-based restrictions on attorney speech, as compared with the standard applied to content-based restraints on everyone else’s speech, would create an unconstitutional condition on the practice of law. Attorneys would be required to relinquish their speech rights in exchange for the ability to practice law.
The vast majority of states have adopted some form of the American Bar Association’s Model Rules of Professional Conduct. Rule 3.6(a) provides that “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
The current US standard is that although attorney speech about pending cases is protected by the First Amendment, it can be punished if it poses a “substantial likelihood of materially prejudicing an adjudicatory proceeding”. A lawyer cannot argue that he should be subjected to discipline only if there is a “clear and present danger” to the fair administration of justice or that the “substantial likelihood” test does not sufficiently protect speech.
The current US jurisprudence is that attorneys are officers of the Court and thus are more subject to regulation of their speech than others. Their speech could pose a greater risk to the fair administration of justice. Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative. ‘Substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.
As to the other key form of restrictions on attorney speech, i.e., court orders preventing attorneys in a pending case from speaking publicly about it, it seems the US Supreme Court has not yet addressed the constitutionality of gag orders on lawyers and parties. In past cases, it considered the constitutionality of prior restraints on the press to protect a fair trial.
The belief is that there are many alternatives to gag orders on the press, including, changing venue, postponing the trial to allow public attention to subside, searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence, clear instructions to the jury as to what may be considered in reaching a verdict, sequestration of jurors, and orders limiting speech by attorneys.
Lower courts in USA have adopted different standards for when gag orders on lawyers and parties are constitutionally permissible. Some courts have said that such gag orders are allowed so long as they seem reasonably related to achieving a fair trial. They feel that proscription of certain extrajudicial communications by prospective witnesses is necessary in order to protect the rights of the defendants to a fair trial based solely on admissible evidence.
There is reasonable likelihood that due to the prejudicial news prior to trial the defendants would be denied a fair trial. The tremendous publicity attending a trial, the potentially inflammatory and highly prejudicial statements that could reasonably be expected from the parties, and the relative ineffectiveness of the considered alternatives, dictated the strong measure of suppressing speech of potential witnesses to ensure a fair trial.
The “reasonable likelihood standard” provides that a gag order on trial participants is constitutional if there is a reasonable likelihood of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. It is a standard much lower that the clear and present danger test. Many lower courts in USA feel that the reasonable likelihood standard was appropriate in order to ensure a fair trial.
However, there are rare rulings which articulate “strict scrutiny” as the appropriate test for gag orders on trial participants because gag orders are seen as a prior restraint upon freedom of speech and expression. A gag order seals the lips of all parties concerned from discussing in any manner whatsoever the cases with members of the news media or the public. A gag order impairs the First Amendment right of the press to gather information. To justify imposition of a prior restraint, statements must pose a “clear and present danger”, or a “serious or imminent threat” to a protected competing interest and must be “narrowly drawn” and cannot be upheld if “reasonable alternatives” are available having a lesser impact on First Amendment freedoms.
A restrictive order involving a prior restraint upon First Amendment freedoms is “presumptively void” and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial. For such a prior restraint to be valid, the speech must pose a serious and imminent threat of a specific nature, the remedy for which can be narrowly tailored in an injunctive order. There must be a finding that less burdensome alternatives of voir dire, sequestration, or change of venue will not suffice to protect a fair trial.
For a gag order to be constitutional, it must meet three tests. First, the limitations on attorney speech should be “no broader than necessary” to protect the integrity of the judicial system and the defendant’s right to a fair trial. Second, the trial court must explore whether “other available remedies” would effectively mitigate the prejudicial publicity. Third, the trial court must give “proper notice” to all parties restrained and give each party the opportunity to be heard.
But some lower courts have rejected the argument that a gag order on trial participants should be regarded as prior restraints, because it does not involve a restriction on the dissemination of information by the press. It only limits the gathering of information by limiting the ability of the press to receive statements from lawyers.
The crucial flaw in this conclusion is that it focuses solely on the institutional press and ignores that gag orders directed at lawyers and parties are a prior restraint on their speech.
Several courts have enforced gag orders on lawyers via criminal contempt proceedings.
The law is unsettled as to when gag orders on trial participants are constitutional. This uncertainty is likely to remain until the US Supreme Court addresses the issue and articulates a standard.
The key question is whether these restrictions on lawyer speech meet “strict scrutiny”. Under strict scrutiny, the burden is on the government to prove that its action is necessary to achieve a compelling purpose.
The justification for the regulation on attorney speech is the need to ensure fair trials. There is no doubt that there is a compelling government interest in providing fair trials in both criminal and civil cases. In criminal cases, the Sixth Amendment, of course, guarantees defendants a right to a fair trial with an impartial jury. Moreover, due process requirements apply in both criminal and civil cases.
However, strict scrutiny cannot be met because restrictions on lawyer speech are not necessary to provide a fair trial. First, there is not sufficient evidence to prove that attorney speech jeopardizes fair trials so as to justify either the rules of professional conduct or gag orders. It is extremely unlikely that it ever can be shown that lawyer statements will pose a serious risk to a fair trial. There is little evidence that pretrial publicity actually jeopardizes fair trials and even less that attorney speech endangers fair judicial proceedings.
Only the occasional case presents a danger of prejudice from pretrial publicity. Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.
There is very little hard evidence that demonstrates that juries are prejudiced by trial publicity. Most studies that have examined the prejudicial effect of trial publicity on juries have been quite inconclusive. Scientific research has not revealed a strong connection between trial publicity of any sort and jury prejudice.
The experience of recent high profile cases belies the conclusion that extensive publicity makes an acquittal more difficult for the defense. In many recent cases that received extensive publicity, defendants were acquitted despite predictions that juries would be prejudiced against the defense by the media coverage. The cases might be seen as an indicator that juries decide based on what occurs at trial and not what is reported in the press. Prof. Chemerinskly’s argues that publicity is not likely to endanger a fair trial.
The potential harm from a gag order’s temporary limit on trial participants’ free speech rights is much less serious than the immediate injury resulting from the denial of a criminal defendant’s right to a fair trial, which may lead to an unwarranted deprivation of the defendant’s liberty or even his or her death.
Prof. Chemerinskly’s concludes that the media has always been in the courtroom, and lawyers have long realized that their clients’ interests are often served by publicity. The 1990s have seen an unprecedented degree of media attention to the courts, and, not surprisingly, the response has been unparalleled efforts to control lawyer speech. Current restrictions on lawyer speech, both through rules of professional conduct and gag orders, are unconstitutional. A better approach would be to limit lawyers only from making statements about pending cases that “they know to be false or that are made with reckless disregard for the truth.”
