Lawyer speech exposes the man behind the curtain

In Lawyer blogs: The go-to news source, I discussed how lawyer blogs should hold the same constitutional status as newspapers and newsletters due to their similarity. The next issue, therefore, is whether the Model Rules of professional conduct ( Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6 ) that govern lawyer speech are constitutional. If not, new rules need to be created for the specific issue of blogging. (as was suggested in The September Paper issued by the Ethics 20/20 Commission).

In N.Y. Times v. Sullivan,[1] the United States Supreme Court addressed the issue of whether speech made by the press regarding a public official can constitutionally be sanctioned in a libel action against the newspaper. Holding that the state cannot constitutionally restrict the speech of the press absent actual malice, the court stated, “[s]uch repression cannot be justified, if at all, only by a clear and present danger of the obstruction of justice.” [2]

The Court reasoned that criticism does not lose its constitutional protection merely because it is effective criticism which “[d]iminishes [the] official[s] reputation.”[3] The Court explained that the very purpose the founders cited for the Free Speech clause of the First Amendment was to allow for the criticism of government officials. This is evidenced in the reports prepared by James Madison, one of the founders of the constitution.

The Court further stated that proof of falsity is not enough. Citing Smith v. California, [4] the Court stated,

For if the bookseller is criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. . .And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. . .

The Court, therefore, announced that proof of actual malice is required in order for a public official to recover for a defamatory statement. [5] Actual malice is defined as “[k]knowledge that [the statement] was false or with a reckless disregard of whether it was false or not.” [6]

The Court explained this stringent requirement in quoting Whitney v. California

‘Those who won our independence believed. . .that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’[7]

It is clear to me that N.Y. Times v. Sullivan indirectly addresses the issue of lawyer speech in at least some contexts: namely trial publicity (Model Rule 3.6) and speech against the judiciary (Model Rule 8.2[8]).

Gentile v. State Bar[9] is directly on point with the issue of trial publicity. In Gentile, defense attorney Gentile made a statement to the press regarding the indictment of his client on criminal charges. [10] Six months after the press conference, Gentile was cited by the Nevada Bar Association for violating rule 3.6 of the state rules of professional conduct. [11] [12] Holding that the Nevada rule was void for vagueness, the court stated that “public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.”[13] The Court noted that, while Model Rule 3.6 appears to subsume the clear and present danger test discussed above, the Nevada Rule was not being applied in this manner.[14]

The Florida Bar v. Conway presented the issue of lawyer criticism of the judiciary in the specific context at the heart of this blog: lawyer blogging. [15] Conway was disciplined by the Florida Bar for making comments regarding a trial judge on his blog. The Florida Supreme Court ultimately affirmed the lower court’s imposition of sanctions on Conway for blogging. Conway raised First Amendment free speech concerns that the court did not address.

These two examples of real-world cases strike the heart of what is at issue in this blog: what is the value of lawyer speech? More specifically, what is the value of lawyer speech on lawyer blogs? Do lawyer blogs deserve more, less, or the same amount of protection as other sources of lawyer speech and non-lawyer speech?

First, the value of lawyer speech: I believe, as previously discussed, that it deserves at least the same amount of protection as the press. In certain areas, I submit, lawyer speech deserves the highest level of protection that exists. These areas are trial publicity and judicial criticism. While the state bar has good reason to be concerned with issues regarding prejudice to the defense and judicial reputation, the “officer of the court” distinction of lawyers cuts both ways in this context.

Stating that a lawyer is an officer of the court means a lawyer works for the court and thus has to show the utmost respect for it. However, it also means that, because lawyers work for the court, they should know, better than any other individual what is really going on behind the curtain. This places them in a better position than the lay person (ie the press) to criticize the court and the judicial processes. Isn’t this the “political duty” that N.Y. v. Sullivan referred to? How can lay people truly be part of the political process without being given an accurate account of the process from those who are on the front lines?

If lawyer speech is valuable, what is made of lawyer blogs? As previously discussed, lawyer blogs, unlike newspapers, newsletters, or even television, reaches every single person who has an Internet connection. The blog can be read anywhere-at home, at the office, on a couch, or in any public place. It can be as temporary or permanent as the blogger wants. However, a screen shot can be taken of the blog making it a permanently published source. Furthermore, even if the blog is taken down, it can still be accessed using certain types of software. In most ways, blogs are the current-day newspaper. Before the days of the Internet (and still currently used for those newspapers not made available wirelessly), if a person wanted to access an old newspaper article, they could go to the local public library and access an old article via microfiche.

One major difference, however, is the ability to make live comments on a blog. This varies per blog provider and according to the author of the blogger. A blogger can “turn on” comments, or restrict them; requiring the comment to be approved by the author before they are published on the Internet.

As a result, I would agree that lawyer speech requires heightened protection, especially in certain areas. In addition, while blogging is not entirely different from the news sources that existed when the Model Rules were written, new rules need to be written in order to assist lawyers in understanding how these rules are applied to blogging. Furthermore, the ABA needs to be mindful and especially careful in crafting these rules to ensure that they are not infringing on the First Amendment right to Free Speech.

[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
[2] Id. at 273.
[3] Id.
[4] Smith v. California, 361 U.S. 147, 153-154 (1959)
[5] Id. at 279-280.
[6] Id.
[7] Whitney v. California, 274 U.S. 357, 375-376 (1927) (emphasis added)
[8] Although it should be noted that Model Rule 8.2 encompasses the actual malice standard required to prove falsehood in a statement against a public official.
[9] Gentile v. State Bar, 501 U.S. 1030 (1991).
[10] Id. at 1030.
[11] Id. at 1030.
[12] Nevada Rule 177(1) prohibits an attorney from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of material prejudicing an adjudicative proceeding”
[13] Id. at 1035 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
[14] Id. at 1037.
[15] The Florida Bar v. Conway, 996 So.2d 213 (2008)