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Unpublished Paper
Speak No Evil: Legal Ethics v. First Amendment
ExpressO (2007)
  • Terri R. Day
This paper explores the interplay between First Amendment rights of attorneys to criticize the judiciary and the application of ethical rules that discipline attorneys for statements that impugn the integrity of judges or impede the administration of justice. There is no U.S. Supreme Court precedent that gives guidance to state courts and lower federal courts in determining the limits of ethical rules to sanction attorney criticism in non-pending cases. In the absence of this guidance, courts have come to different conclusions in determining to what extent the First Amendment protects attorney speech in these circumstances. Because speech about judges and their performance is core political speech, in the absence of other fundamental rights (e.g. the right to a fair and impartial trial), restrictions on attorney criticism of the judiciary should survive strict scrutiny. Concern about public perception is not sufficient to support restrictions on core political speech. Research shows that media and popular TV shows are most influential in shaping public perception of the judicial system. Lawyers should be encouraged to participate in public education about the role of judges and the importance of an independent judiciary. Ethical rules that punish critical speech have a chilling effect and reduce the overall amount of information available to the public about matters of public concern from those most informed.
Publication Date
June, 2007
Citation Information
Terri R. Day. "Speak No Evil: Legal Ethics v. First Amendment" ExpressO (2007)
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