Since the Simpson murder case years back, the issue of lawyers speaking out outside the courtroom has been a nagging question that continues to bother the Bench and the Bar in the United States (and other countries) to this very day.
It seems that despite the increasing concern about lawyers speaking about their cases outside the courtroom and the so-called gag orders prohibiting lawyers from commenting publicly about their cases, many believe that there are strong reasons to go very slowly when making inroads of any kind on free speech.
Many lawyers believe that despite the unpleasantness, discomfort, and harm that unrestrained speech causes, freedom to speak remains a powerful and irreplaceable engine for the protection and enhancement of the values of democracy.
Under the First Amendment, lawyers’ speech should be protected. The test under the said constitutional provision requires clear and convincing proof that a statement is false and was made maliciously or with reckless disregard for its truth.
The situation seems to be that although there has been no general assault on lawyers’ speech, restraint has been imposed or urged by the courts, the public and the Bar.
When a case is high profile, it is seen as significant by the public and the Press. There is an explosion of interest in law and the legal process on the part of the public. It is seems to be fed by insatiable appetite of the media to attract an audience and advertisers.
It is recognized that speech does not have to be worthy in itself to be protected by the First Amendment.
There is a difference between “public interest” and the “public’s interest”. The latter seems to drive the media more than public interest. To the commercialized Media, the “public’s interest” means profit.
One hypothesis is that lawyers should be allowed to speak about their cases without restraint because in doing so they fulfill the role that society assigns to them as their clients’ representatives.
The problem is that a lawyer’s out-of-court statements may have an effect on the jury or the judge. The statements may tilt the jury or judge to view his client’s side of the case sympathetically.
Because it is fundamental to a democratic legal process that a jury or a judge must decide only on the basis of evidence presented in court, some assert the controversial view that a lawyer’s efforts to defend his client outside the courtroom may be necessary to counteract prejudice against his client, which is attributed to an extra-judicial source. They believe that so long as both sides do it, everything is alright, because it is impossible to prevent leaks and adverse publicity anyway.
Is it proper for a lawyer to leave the courtroom to abandon all the evidentiary rules and rules of advocacy and to say anything that he was not allowed to say in court?
This is a bothersome issue. The negative answer is obvious.
There are those who believe that speaking out in public will cause judges to be more careful and fair.
This may not be a tenable idea because there are remedial and evidentiary procedures to ensure that a judge does not act carelessly or unfairly, because always have the right to object during the trial, and because judges who abuse their authority face reversal or reprimands from higher courts.
It is not a wise idea to put pressure on the judge by the belief that the lawyer’s public comments may lead the judge to be more careful and fair (from the lawyer’s or his client’s point of view).
There are those who believe that in some cases a lawyer may need to speak out to protect his client’s reputation, especially when investigators unfairly provide the Press with leaks prejudicial to hic client.
They feel that speaking out may help to turn up vital evidence or witnesses, thus, it may assist the search for truth.
But it seems rarely to be the case, considering that in most instances the speech is intended by the lawyer or a spokesman to defend one’s legal claim or position rather than seek hidden witnesses and evidence.
There is the belief that pressing one’s client’s case in the media may encourage a settlement and avoid a trial, to the benefit of all. But the question is if there are indeed grounds for a settlement, one must to present them only to the opposing lawyer, not to the public or the Press.
Many feel that resort to the media to encourage a settlement is likely to mean threatening to expose or embarrass one’s opponent unless he settles. If that is what displaces a trial on the merits, “the likely effect is not public benefit but the encouragement of corrosive cynicism and contempt for law as a substitute for naked power”.
Further, some believe that since a case may be a means of changing an unjust law, which the Press can widely expose, lawyers must be allowed to talk to the Press to defend his case outside the courtroom. However, the problem is that the first concern of a lawyer is the interest of his client, in which case, “the likelihood that a lawyer will add to public comprehension, rather than obscure the general issue or distort it to serve his client’s need, is small”.
In sum, there are grave ethical issues involved “when lawyers conduct their cases in two forums: in court, and then, according to completely different rules, on the courthouse steps and through the Press”.
What seems to be clear, though, is that “rights are accompanied by responsibilities”. To say that a person has a right to do something is “not to say that she ought to do it”. Rather, it is to say that it is up to her – it is her responsibility – to decide whether to do it or not.
The current observation is that 30 years ago in the USA, “it was unthinkable that a reputable lawyer would speak out to the press during the progress of a trial, in the manner that has now become routine”, not because she had not the right to do so but because it was understood that such conduct was not responsible and professional.
Concerned sectors may not be blamed for believing that lawyers play to the public when they respond to the blandishments and pressures of the media. People are worried when trial in court becomes secondary and trial by publicity becomes the main event.
The “everyone does it, so it’s alright” attitude is harmful because legal proceedings become “an entertainment, a sideshow that no one takes seriously”.
The very speech that is protected is cheapened. The legal profession is tarnished. Lawyers become hucksters. The client is tarnished because he is sold to a disbelieving public like a bar of soap.
In such a scenario, the legal process will lose credibility.
I agree with the belief of many legal philosophers that “no system of justice, no legal process, can command respect if it carries no weight beyond the four walls of the courtroom”.
Freedom of speech goes hand in hand with responsibility. If it becomes all, if responsibility is forgotten, one must question the content of the right itself.
A right without responsibility is worth little. It is merely power.
