Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

Abstract

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity — ranging from core free speech protection to almost no protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for attorneys, especially when acting in a representative capacity.

The access-to-justice theory of the First Amendment provides a workable methodology specific to examining the constitutionality of restrictions on attorney speech. Grounded in established free speech theories and philosophy, the access-to-justice theory ties attorney speech rights to the proper and constitutional functioning of the justice system. Rather than viewing attorney pretrial publicity as a compromise between incompatible rights to a fair trial and lawyer free speech, the lawyer’s speech right is keyed to the lawyer’s role in the justice system. Such an approach does not eliminate the free speech side of the traditional compromise. In fact, restricting certain pretrial publicity can frustrate the attorney’s role to protect a client’s life, liberty, and property.

Thus the appropriate scope of free speech protection for attorney pretrial publicity is determined by examining the respective roles of the prosecutor and defense attorney in the criminal justice system and the effects of pretrial publicity by each on the proper workings of that system. Such an analysis demonstrates that the traditional compromise, as embraced in MRPC 3.6, violates the robust free speech rights of the defense attorney to protect her client’s reputation and rights to a fair trial, a just plea, and a presumption of innocence. The compromise also improperly creates false constitutional walls that have kept states from curbing their own representative, the prosecutor, from prejudicing the state’s criminal processes. The prosecutor maintains essential, but limited, First Amendment rights to engage in speech necessary for the investigation and prosecution of crime and to respond to defense-initiated publicity. Notably, the failings of the compromise work to one end: undermining the rights and constitutional processes necessary to protect the guilty and the innocent in the face of state power to forfeit life or liberty.