A First Amendment Theory for Protecting Attorney Speech

Margaret C. Tarkington, Brigham Young University

Abstract

In June 2010, the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations (FTOs). The plaintiffs wished to assist two FTOs invoke international human rights law, petition the United Nations and United States Congress, and peacefully resolve their disputes. The Supreme Court held that the statute clearly prohibited plaintiffs’ proposed activities, but did not violate the Free Speech Clause of the First Amendment because the attorneys could still engage in “independent advocacy” of any message they wished to promote. Allegedly, the plaintiff attorneys’ First Amendment rights were not abridged because the law merely criminalized speaking “in coordination with or under the direction of” their proposed clientele.

Holder v. Humanitarian Law Project underscores some of the distinctive problems associated with restrictions on attorney speech and the lack of a workable First Amendment methodology for analyzing restrictions on attorney speech. Many regulations governing attorneys can be couched as restrictions on attorney speech because the work of an attorney is done primarily through oral and written communications.

In this paper, I propose a new access-to-justice theory of the First Amendment to be used in examining the constitutionality of restrictions on attorney speech. Attorneys—through their speech—play a key role in our justice system. They provide to clients speech that has the force of law and that is intended to invoke or avoid the power of government in securing individual or collective life, liberty, or property. The access-to-justice theory proposes that where attorney speech is key to providing or ensuring access to justice or the fair administration of the laws, it needs special protection under the Free Speech Clause, akin to the core protection afforded political speech.