The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation
Indiana University Robert H. McKinney School of Law
September 18, 2008
Georgetown Law Journal, Vol. 97, p. 1567, 2009
Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial reputation is often severe, with suspension from the practice of law being typical and, in at least one state, mandatory. Notably, in the context of attorney discipline, courts act as judge and jury, and, where the speech regards the judiciary, the courts are also the victim. Yet the problem has not previously received the academic attention that it certainly needs.
In The Truth Be Damned, Professor Tarkington argues that Sullivan sets the constitutional standard that must be employed to punish attorneys for speech impugning judicial integrity. Such speech is core political speech entitled to the fullest constitutional protection. In addition to First Amendment doctrine, there are several reasons, vital to democracy itself, why the interests proffered by state and federal courts cannot justify the suppression of attorney speech. Attorneys are the very class of persons with the knowledge and exposure to have informed opinions about the judiciary. By denying their right to speak and the public's corresponding right to receive such speech, the central purposes of the Speech Clause are defeated, including self-governance, robust debate on public issues, the unique sovereignty of the American people over government, and the ability of the public to employ democratic correctives to check and define the abuse of judicial power. This in turn clogs the wheels of political change, allowing for judicial self-entrenchment.
Number of Pages in PDF File: 72
Keywords: First Amendment, Speech Clause, attorney speech, political speech, free speech, New York Times v. Sullivan, professional responsibility, courts, judges, professional ethics
Date posted: September 23, 2008 ; Last revised: October 10, 2010