Professor Tarkington on Attorney Free Speech

BYU Law School Professor Margaret Tarkington, in an article published in the Georgetown Law Journal (vol. 97, no. 6—August 2009), argues for the freedom of an attorney to criticize the judiciary.

“Court's should not be punishing attorney speech solely to preserve judicial reputation,” Tarkington writes.  “Speech regarding the qualifications and integrity of members of the judiciary is essential for democracy to function properly.”

In her article, “The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation,” Tarkington reviews cases throughout the United States where courts have severely punished attorneys for impugning judicial integrity. 

Attorneys have been punished regardless of the forum or context in which the speech is made and whether or not the attorney is acting in a representative capacity. Tarkington argues that suppressing attorney speech regarding the judiciary frustrates democracy by denying the right of the attorney speakers to contribute to the robust, uninhibited, wide-open debate regarding public officials that is central to our system of self-government.  Such suppression correspondingly denies the right of the public to receive opinions from those who have the education, training, and exposure to best offer informed views regarding the judiciary.

Tarkington maintains that the Supreme Court in New York Times, Co. v. Sullivan, established the constitutional standard for punishing attorney speech regarding the judiciary.  In accordance with Sullivan, the ABA rules on professional conduct only prohibit an attorney from making a statement that he or she “knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”  But, Tarkington states, “most state judiciaries” have interpreted lawyer conduct rules “to punish speech that impugns the integrity of the judiciary without requiring a showing of knowledge of or reckless disregard as to falsity.

Tarkington argues that

(1)     “Attorney speech critical of the judiciary is core political speech entitled to the fullest protection offered by the Constitution, and it clearly falls within Sullivan . . . .”

(2)    Additionally, there are several reasons, vital to democracy itself, why the interests proffered by state and federal courts cannot justify the suppression of attorney speech.  These reasons include 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.

(3)    “The punishment and suppression of attorney speech is done in the name of preserving the public perception of judicial integrity,”  or in other words, judicial reputation—which is “an interest that the Supreme Court has never recognized as valid despite its being proffered in other cases.”

(4)    “Requiring the judiciary to adhere to Sullivan when the basis for punishment is impugning judicial integrity does not deny courts the ability to regulate attorney speech on the basis of other important state interests.”

Professor Tarkington’s article can be accessed via the SSRN database at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270268.  

Posted: September 17, 2009