Margaret Tarkington on "A First Amendment Theory for Protecting Attorney Speech"

Margaret Tarkington (Brigham Young University – J. Reuben Clark Law School) has a new post on SSRN entitled: “A First Amendment Theory for Protecting Attorney Speech“. The abstract reads:

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, Ralph Fertig and the Humanitarian Law Project, wished to assist two such 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 (with a potential fifteen-year prison sentence) their 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. Unfortunately, as demonstrated by the Court’s opinion, as well as Justice Breyer’s impassioned dissent, there is not a workable First Amendment methodology for analyzing restrictions on attorney speech.

Indeed, many regulations on attorneys can be couched as restrictions on attorney speech because the work of an attorney is done primarily through oral and written communications. Attorneys – through their speech – play a key role in providing access to justice and the fair administration of the laws. 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.

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 – regardless of the regulating entity. 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. The paper identifies four types of attorney speech that deserve this high level of protection, namely, (1) the power to invoke the law on a client’s behalf; (2) the provision of legal advice regarding proposed or past client conduct; (3) the ability to raise relevant and colorable arguments in court proceedings; and (4) the ability to preserve the Constitutional rights of others.

Traditional self-regulation of attorneys preserved, although imperfectly, the special role of attorneys in our justice system because, in theory, the judiciary as regulator understood the attorney’s role. By providing First Amendment protection to attorney speech that is essential to our justice system, the access-to-justice theory also safeguards the attorney’s essential role as self-regulation declines and regulation is imposed by national and intergovernmental entities, including legislative entities subject to majoritarian pressures.

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