Advocacy as a Race to the Bottom: Rethinking Limits on Lawyers’ Free Speech

Abstract

Attorneys looking for protection under the First Amendment have searched in vain for a consistent theory. Courts have not helped. In a high-water mark for robust interpretation of the First Amendment, the Supreme Court in Legal Services Corp. v. Velazquez struck down limits on government aid to lawyers who challenged welfare reform legislation. However, other cases send a mixed message. Courts limit lawyers’ public discussion of evidence in pending cases, while the Supreme Court’s decision in Garcetti provided no protection for internal dissent in prosecutors’ offices. A recent decision, Holder v. Humanitarian Law Project, has prompted fears that the Court is poised to bar legal representation of terrorist groups.

Scholars have compounded the confusion. Some advance a managerial perspective, criticizing Velazquez by wrongly asserting that a court’s established power to punish frivolous legal claims should also allow Congress to choose the laws that government-funded attorneys can challenge. In contrast, absolutists contend that lawyers and other individuals have identical free speech rights, but tie their analysis to a dubious analogy between the town meeting and the courtroom. Managerialists demand too much deference to restrictions on speech; absolutists bridle at any limits at all.

To ease the confusion, the paper outlines a new approach: structural signaling. Signaling can build trust when obtaining complete information is too costly, as when a lawyer’s opinion letter replaces a lender’s exhaustive investigation of a loan application. However, signaling can rapidly turn dystopian, triggering races to the bottom that destroy public goods such as the integrity of adjudication. Prejudicial pretrial publicity, in which the media becomes the jury, reflects this sort of ruinous competition, which I call a signaling spiral. The government can also trigger signaling spirals, as in the tacit signaling of prosecutorial nondisclosure that the Garcetti Court spurred by leaving internal debate unprotected. In each, signaling spirals have structural effects, imperiling courts’ role in democratic governance. To show how courts can respond with pivots from deference to free-speech protection, the paper cites examples from criminal justice, restrictions on access to legal representation, and lawyers’ marketing.