Document Type

Article

Publication Date

Winter 2001

Keywords

First Amendment, Freedom of expression, Matthew Hale, Joseph McCarthy, Baird v. State Bar of Arizona, Judge Easterbrook, Judge Kozinski, In re Sawyer, In re Snyder, Gentile v. State Bar of Nevada, Chicago Seven, Paul Converse, Chaplinsky v. New Hampshire, Alexander Meiklejohn

Disciplines

Legal Ethics and Professional Responsibility

Abstract

One of the most important unanswered questions in legal ethics is how the constitutional guarantee of freedom of expression ought to apply to the speech of attorneys acting in their official capacity. The Supreme Court has addressed numerous First Amendment issues involving lawyers, of course, but in all of them has declined to consider directly the central conceptual issue of whether lawyers possess diminished free expression rights, as compared with ordinary, non-lawyer citizens.

The arguments of this Article are synthetic in structure. I do not aim just to criticize reported cases, but rather to show how the regulation of lawyers' speech fits within the various doctrinal complexities that characterize First Amendment law and within the ethical norms that govern the practice of law. This synthesis has three features: First, although the focus is on the application of free speech principles to the legal profession, the issues considered here are also implicated in other contemporary constitutional debates, such as the regulation of hate speech on college campuses and elsewhere, and the application of the First Amendment to "hostile environment" sexual harassment claims under Title VII. Second, this Article integrates constitutional principles that bear on lawyer-speech cases, but which have their origins outside the First Amendment. Finally, I consider not only the constitutional dimension of lawyer-speech regulation, but also the ethical and disciplinary context that informs the practice of law. Being a lawyer means participating in a social practice which has its own unique traditions, history, and conceptual difficulties.

Comments

This article pre-dates the author's tenure at Cornell Law School.

Publication Citation

Published in: Hastings Constitutional Law Quarterly, vol. 28, no. 2 (Winter 2001).

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