A First Amendment Theory for Protecting Attorney Speech
Margaret Tarkington1
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Lawyers are Engaged in a Special Kind of Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Its Binding Nature: Speech Having the Force of Law . . . . . . . . . . . . . . . . . . . . 10
B. Protection of Life, Liberty, and Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
III. Methods for Analyzing the Constitutionality of Attorney Speech Regulation . . . . . . 19
A. All Restrictions by the Judiciary or Bar are Constitutional . . . . . . . . . . . . . . . . 19
1. Constitutional Conditions of Practicing Law . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Protection of Essential Functions
through Traditional “Self-Regulation” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. Normal First Amendment Theory and Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . 26
C. Analogy to Other Areas of Limited Protection . . . . . . . . . . . . . . . . . . . . . . . . . . 28
D. The First Amendment Is Inapplicable to Ubiquitous Regulation . . . . . . . . . . . 30
IV. The Access-to-Justice Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
A. Modeled after a Democratic Theory of the First Amendment . . . . . . . . . . . . . . 31
B. A Free Speech Right Commensurate to Preserve our System of Justice . . . . . . 34
1. The Power to Invoke the Protection of the Law . . . . . . . . . . . . . . . . . . . . . . . 36
2. The Ability to Provide Legal Advice Regarding Client Conduct . . . . . . . . . 48
3. The Ability to Access Courts and
Raise Relevant and Colorable Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4. The Ability to Preserve the Constitutional Rights of Others . . . . . . . . . . . . . 66
V. Preserving the Attorney’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

1

Copyright 2010, by Margaret Tarkington, Visiting Associate Professor of Law, University of Cincinnati
College of Law, and Associate Professor of Law, J. Reuben Clark Law School. I would like to thank Thomas D.
Morgan, Russell G. Pearce, D. Gordon Smith, David Moore, and James D. Gordon III for their extremely helpful
comments. An early draft of this paper was presented under the name Preserving the Role of the Attorney through
the Protection of Attorney Speech at the conference sponsored by the University of London‘s Institute of Advanced
Legal Studies, Regulating and Deregulating Lawyers in the 21 st Century on June 3, 2010, and I express my
appreciation for the helpful comments and questions from conference participants. I would also like to thank Landon
Magnusson, Carla Crandall, Eric Ashcroft, and Shannon Grandy Allongo for their very helpful research assistance.

Electronic copy available at: http://ssrn.com/abstract=1669617

~ [A]stract discussion is not the only species of communication which the
Constitution protects; the First Amendment also protects vigorous advocacy,
certainly of lawful ends, against government intrusion.2

I. Introduction
In June 2010, the United States Supreme Court held that Congress could constitutionally
prohibit attorneys from providing legal assistance and legal advice regarding lawful nonviolent
conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations
(FTOs).3 The plaintiffs, Ralph Fertig and the Humanitarian Law Project, wished to assist two
such FTOs by advising them on how ―to use humanitarian and international law to peacefully
resolve disputes,‖4 ―to petition various representative bodies‖ including the United Nations and
the United States Congress,5 to obtain recognition under the Geneva Conventions,6 and other
peaceful, lawful activities aimed at securing human rights. As explained by counsel for the
Plaintiffs at oral argument, the Humanitarian Law Project sought to advise these groups
regarding ―how to pursue their goals in a lawful, rather than a terrorist way.‖7 The Supreme
Court held that the restrictions clearly prohibited plaintiffs‘ proposed activities,8 but did not
violate the Free Speech Clause of the First Amendment because the attorneys could still engage
2

NAACP v. Button, 371 U.S. 415, 429 (1963).
See Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010).
4
See id. at 2716.
5
See id. (stating that plaintiffs wished to teach two FTOs ―how to petition various representative bodies
such as the United Nations‖); see id. at 2732 (Breyer, J., dissenting) (noting that plaintiffs wanted to petition the
United States Congress).
6
See id. at 2739 (Breyer, J., dissenting) (noting that declarations below showed that relief sought would not
be monetary, but would include seeking ―recognition under the Geneva Conventions.‖)
7
See Holder v. Humanitarian Law Project, Nos. 08-1498, 09-89, Oral Arg. Trans. at 46 (Feb. 23, 2010)
(Ginsburg, J., clarifying); see also id. (―They want to engage in advocacy of peaceful means of achieving the goals
of these groups.‖). See also David Cole, The Roberts Court‘s Free Speech Problem, NYRblog, June 28, 2010. Cole
was counsel to the Humanitarian Law Project, and summarizes the Court‘s opinion thus: the Court ―ruled that the
First Amendment permits Congress to imprison human rights activities for up to fifteen years merely for advising
militant organizations on ways to reject violence and pursue their disputes through lawful means.‖ See id.
8
See Humanitarian Law Project, 130 S.Ct. at 2709 (holding that ―the statutory terms are clear in their
application to [and thus prohibition of] plaintiffs‘ proposed conduct‖).
3

2
Electronic copy available at: http://ssrn.com/abstract=1669617

in ―independent advocacy‖ of any political or other message they wished to promote.9 Allegedly,
the plaintiff attorneys‘ First Amendment rights were not infringed because the law merely
criminalized (with a potential fifteen-year prison sentence10) their speaking ―in coordination with
or under the direction of‖ their proposed clientele.11
Holder v. Humanitarian Law Project underscores some of the distinctive problems
associated with restrictions on attorney speech. Unfortunately, as demonstrated by the Court‘s
opinion, as well as Justice Breyer‘s impassioned dissent, there is not a workable First
Amendment methodology for analyzing restrictions on attorney speech.
Traditionally, attorneys have been considered a self-regulating profession.12
Consequently, even though many of the rules of professional conduct, court rules, and other
regulations restrict attorney speech, the traditional theory was that attorneys agreed to all such
regulations as a condition of being admitted into the bar. In the words of Benjamin Cardozo,
―Membership in the Bar is a privilege burdened with conditions.‖13 Thus, attorneys were deemed
to have voluntarily waived their free speech rights vis-à-vis judicial and state bar regulators as a
condition of becoming an attorney. Although imperfect, this traditional reservation of attorney
regulation to judiciaries and the bar arguably worked to preserve the special role that attorneys
play in the administration of justice. Theoretically, the regulator, namely the judiciary and/or the
bar, understood the role that attorneys played in the United States justice system and so would

9

See id. at 2722–23 (explaining that ―plaintiffs may say anything they wish on any topic‖ because ―[t]he
statute does not prohibit independent advocacy or expression of any kind.‖ (emphasis added; internal quotations
omitted); see also id. at id. at 2728 (in explaining why statute is constitutional, concluding that ―most importantly,
Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated
with, or controlled by foreign terrorist groups‖).
10
See id. at 2712, n. 1.
11
See id. at 2722; see also id. at 2723 (concluding that ―the statute is carefully drawn to cover only a
narrow category of speech to, under the direction of, or in coordination with‖ FTOs (emphasis added)).
12
Indeed, the Preamble to the Model Rules of Professional Conduct talks of ―self-regulation‖ and states
that ―[t]he legal profession is largely self-governing.‖ MODEL RULES OF PROF‘L CONDUCT, Preamble, ¶¶ 10–11.
13
See In re Rouss, 221 N.Y. 81, 84 (1917).

3

impose appropriate regulations. Consequently, self-regulation ideally would ensure that attorney
speech restrictions would be tailored to the attorney‘s function in our system of government.
However, self-regulation has long since been a myth14—a myth that is increasingly
disassociated with reality. In the words of Fred Zacharias, ―law has become a highly regulated
industry in modern times‖ that is subject to regulation from multiple entities external to itself,
including state and federal legislatures and administrative agencies.15 Additionally, Zacharias
notes the fallacy of considering regulation by the judiciary to be ―self-regulation.‖16 Zacharias
posits ―that judges overseeing lawyers take their independence from the bar and their regulatory
functions seriously‖ and thus ―discipline by courts‖ is ―a form of regulation external to the
profession.‖17 Moreover, as Thomas Morgan recently reiterated, when the Supreme Court began
invalidating attorney regulations as unconstitutional or violative of congressionally-enacted law,
―the idea that, as a profession, lawyers were self-regulating and thus need look only inward, was
gone forever.‖18 Importantly, self-regulation is not a successful argument for staving off attorney
regulation from other governmental entities. National and intergovernmental regulation
applicable to attorneys exists and will only continue to expand. As explained by Laurel Terry:
Although the ABA recently reaffirmed the traditional view that lawyers should be
regulated by the state judicial branch, commentators have noted that lawyers already are
subject to multiple sources of regulation. The combination of globalization and the
service providers paradigm means that lawyers are likely to face regulation from more

14

See, e.g., Fred Zacharias, The Myth of Self-Regulation, 93 MINN. L. REV. 1147 (2009); see id. at 1188
(―Whatever its actual meaning, the term ‗self-regulation‘ produces an image of lawyers unilaterally controlling the
behavior of their peers. That image is patently false.‖). Zacharias notes that ―in the post-revolutionary period of the
United States, law truly was a self-regulated profession‖ and the rise of bar associations in the late nineteenth and
early twentieth centuries ―represented the modern form of lawyer self-regulation.‖ See id. at 1157, 1160. See also,
Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 S.M.U. L. REV. 1385 (2004).
15
See Zacharias, supra note 14, at 1155.
16
Id. at 1153–54.
17
Id. at 1154.
18
THOMAS D. MORGAN, THE VANISHING AMERICAN LAWYER 76 (2010)

4

and more entities. . . . U.S. lawyers face regulation from many new sources, including
global entities.19
Indeed, to the extent that regulation of lawyers has been left to state judiciaries, it is done
merely as a matter of comity and not because Congress and other governing bodies lack such
power. The Supreme Court‘s 2010 decision, Milavetz, Gallop & Milavetz v. United States,
illustrates this point. In Milavetz attorneys challenged the constitutionality of congressional
restrictions on attorneys when advising clients in contemplation of bankruptcy. The restrictions
directly circumscribed the advice an attorney would be allowed to give to a client. The ABA
argued in an amicus brief that ―the licensing and regulation of attorneys has been reserved to,
and performed by, the State judicial systems.‖20 The Supreme Court flatly rejected ―selfregulation‖ as a defense that shielded attorneys from congressional regulation. It noted that
―Congress and the bankruptcy courts have long overseen aspects of attorney conduct in this area
of substantial federal concern,‖ and summarily concluded that an argument that Congress had
―impermissibly trenche[d] on an area of traditional state regulation [] lacks merit.‖21 Bankruptcy
is not the only area of ―federal concern‖ where Congress has been and will be able to regulate
attorneys, including attorney speech. Moreover, in the modern globalized economy, there are and
will be areas of legitimate and substantial international concern with consequent regulation.22 As
Morgan summarizes: ―By now it is clear that the legal profession no longer exists in a protective
bubble, and legal ethics is no longer the business of lawyers alone.‖23
Yet even under the self-regulation theory, the constitutional conditions argument was
never wholly satisfactory. The fact that the judiciary (or a bar association) imposes a restriction
19

Laurel S. Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal
Profession as ―Service Providers,‖ 2008 J. PROF. LAW. SYMP. ISSUES 189, 205–206 (2008).
20
Milavetz, Gallop & Milavetz v. United States, Brief for Amicus Curiae the American Bar Association
Supporting Petitioners, available at 2009 WL 2875367, at *8.
21
Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324, 1332–33 (2010) (emphasis added).
22
See Terry, supra note 19, at 205–206.
23
MORGAN, supra note 18, at 79.

5

or punishment on speech does not (and should not) ―constitutionalize‖ a restriction. Indeed, there
are scenarios, such as the regulation of attorney speech regarding the judiciary, where the
judiciary has demonstrated a failure to protect speech that clearly should enjoy constitutional
protection.24
The breakdown of self-regulation, the declining viability of the constitutional conditions
theory, and the imposition of attorney regulations by entities external to the profession (such as
Congress, state legislatures, or intergovernmental entities) create a twofold problem. First, there
is not a workable analytical method for examining the constitutionality of restrictions on attorney
speech; and second, outside entities (especially those subject to majoritarian capture) may
impose restrictions on attorney speech that compromise the central role of the attorney in
providing access to justice and the fair administration of laws. Humanitarian Law Project and
Milavetz, again, illustrate both problems.
In Milavetz, the Court employed typical First Amendment methodologies, examining
whether the statute was overbroad or vague. During the Milavetz oral argument, Chief Justice
Roberts indicated a concern that the regulation achieved its substantive objective (getting debtors
to avoid incurring more debt) ―indirectly [] by interfering with the attorney-client relationship.‖25
Indeed, the regulation did not prohibit debtors from incurring debt; rather, it prohibited attorneys
from advising clients to incur debt in contemplation of bankruptcy. Yet normal First Amendment
doctrines did not account for the problematic interference with the attorney-client relationship.
Indeed, counsel for the plaintiffs agreed that if the statute was unconstitutional as applied to

24

See, e.g. Margaret Tarkington, A Free Speech Right to Impugn Judicial Integrity in Court Proceedings,
51 B.C. L. REV. 363 (2010) [hereinafter, Tarkington, Free Speech Right to Impugn]; Margaret Tarkington, The Truth
Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567 (2009)
[hereinafter, Tarkington, The Truth Be Damned].
25
Milavetz, Gallop & Milavetz v. United States, Nos. 08-119, 08-1225, Oral Arg. Trans. at 47 (Dec. 1,
2009).

6

attorneys, it would be unconstitutional as applied to everyone—again highlighting the lack of a
methodology for reaching the distinctive problems of the statute as applied to attorney speech.26
The Supreme Court ultimately avoided interfering with the attorney-client relationship by
interpreting the statute narrowly.27 Importantly, the protection of the attorney-client relationship
came from the Court‘s attorney-friendly interpretation of the statute and not from the First
Amendment.
Unfortunately, in Humanitarian Law Project, the Supreme Court did not even recognize
the important and weighty implications of the restriction as applied to attorney speech. Indeed,
the Court purported to ―fix‖ any constitutional problems by allowing attorneys to independently
advocate whatever messages they like, but prohibiting any and all speech made in coordination
with or at the direction of their proposed clients.28 The majority went so far as to note that
plaintiffs were ―barred‖ by the statute from even speaking to the FTOs if their speech
―communicates advice derived from ‗specialized knowledge‘—for example, training on the use
of international law or advice on petitioning the United Nations.‖29 Justice Breyer‘s dissent
argued that a prohibition on speaking ―in coordination with‖ others had never previously
constituted a valid exception to First Amendment protection.30 But Justice Breyer‘s dissent did
not recognize how acutely problematic such a distinction is in the context of attorney speech.
Specifically, attorneys are denied their core function in the United States legal system if they can
be prohibited from speaking to, on behalf of, or in coordination with their clients. While the
26

Counsel for appellants agreed with Justice Scalia that if the statute was vague or overbroad for attorneys
it would be equally problematic for anyone else to whom the statute applied. See id. at 20 (―don‘t bring in the fact
that, well, and moreover, if it‘s applied to attorneys, it‘s unconstitutional . . . [b]ecause if it‘s applied to anybody it‘s
unconstitutional, according to your [vagueness] argument.‖).
27
The Court interpreted the statute to prohibit only advice to a debtor ―to incur more debt because the
debtor is filing for bankruptcy, rather than for a valid purpose.‖ Milavetz, Gallop & Milavetz v. United States, 130
S.Ct. 1324, 1336–38 & n.6 (2010) (emphasis added).
28
See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2722–24, 2728 (2010).
29
See id. at 2723–24.
30
See id. at 2733 (Breyer, J., dissenting).

7

majority claimed that the attorneys lost nothing because they could still speak independently,31
the majority‘s distinction completely denied the role and function of the attorney, as will be
explored more fully below.
In this paper, I propose a new access-to-justice theory of the First Amendment to be used
in examining the constitutionality of restrictions on attorney speech—regardless of the regulating
entity and applicable to regulation or punishment imposed by legislative, judicial or other
governing entities. As demonstrated by the Court‘s appalling decision in Humanitarian Law
Project, reliance on traditional First Amendment doctrines will not suffice, as those doctrines fail
to account for the distinctive and important role that attorney speech plays in access to and in the
fair administration of justice. The access-to-justice theory maintains that where attorney speech
is key to providing or ensuring access to justice or the fair administration of the laws, it needs
special protection under the Free Speech Clause of the First Amendment. The theory thus not
only provides a workable theory for evaluating restrictions on attorney speech, it also, and more
importantly, protects the role of the attorney in our system of justice.
In Part II, I will examine the nature of attorney speech and its relationship to the power of
government. Attorneys are engaged in a special type of speech—specifically, attorney speech is
intended to invoke or avoid the power of government in the protection of individual life, liberty,
and property.
In Part III, I will briefly show the lack of a workable theory for examining restrictions on
attorney speech. The case law either employs normal First Amendment doctrine for regulated

31

See Humanitarian Law Project, 130 S. Ct. at 2723–24 (concluding that plaintiffs ―may say anything they
wish on any topic,‖ indicating that their speech is not abridged because they can engage in ―independent advocacy
and expression‖).

8

industries,32 or declares that the restriction is a valid condition on the practice of law without any
Free Speech Clause protection or even analysis. Moreover, prior scholarly commentary engages
in analogies of attorney speech to other areas of limited First Amendment protection. None of
these methods for examining the constitutionality of restrictions on attorney speech is
satisfactory because all of them fail to preserve both the role of the attorney in our administration
of justice and the underlying rights of clients.
In Part IV, I will propose an access-to-justice theory of the First Amendment for
protecting attorney speech. The theory is modeled on a democratic theory of the First
Amendment. Just as citizen free speech is essential to the proper functioning of democracy, so
attorney free speech is essential to the proper functioning of the United States justice system.
Consequently, the access-to-justice theory proposes that where attorney speech is key to
providing or ensuring access to justice and the fair administration of the laws, it needs special
protection under the First Amendment, akin to political speech. Certainly a large portion of
attorney speech does not fall into this narrow category, but there are categories of attorney
speech that are essential to our system of justice and require protection.
In Part V, I discuss how this new theory protects the role of the attorney in the system of
justice as attorney self-regulation ceases to be a reality. As entities other than state judiciaries
increase their role in regulating attorney speech, it is imperative that there be a method to
preserve the role of attorneys in the fair administration of justice.

32

See e.g., Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324, 1339 (2010); Republican Party of
Minn. v. White 536 U.S. 765, 788 (2002); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623–24 (1995); Shapero v.
Ky. Bar Ass‘n, 486 U.S. 466, 472 (1988); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471
U.S. 626, 637–44 (1985); In re R.M.J., 455 U.S. 191, 203–06 (1982); Bates v. State Bar of Ariz., 433 U.S. 350, 365
(1977).

9

II. Lawyers are Engaged in a Special Kind of Speech
Attorneys do nearly all of their work through speech—the written and spoken word. As
Frederich Schauer poignantly declared:
As lawyers, speech is our stock in trade. Speech is all we have. Our tools are books and
not saws or scalpels. Our product is argument, persuasion, negotiation, and
documentation, so speaking (by which I include writing) is not only central to what the
legal system is all about, and not only the product of law as we know it, but basically the
only thing that lawyers and the legal system have.33
Because attorneys do their work primarily through oral and written communications,
many of the rules of professional conduct and other regulations on attorneys can be couched as
restrictions on attorney speech. Indeed, attorney speech is saturated with regulations. One need
only reflect on rules in court proceedings, or required disclosures in numerous legal documents,
to recognize the ubiquitous nature of attorney speech restriction and regulation. Nevertheless,
attorney speech is special and requires special protection because of its relationship to
government power and to the protection of individual or collective life, liberty, and/or property.
A. Its Binding Nature: Speech Having the Force of Law
While Professor Schauer is correct that the practice of law ―is speech-constituted
activity‖ and thus may be termed ―our stock in trade‖—he goes much too far by arguing that
―speech is all we have‖ and that ―[o]ur product is argument, persuasion, negotiation, and
documentation, so speaking (by which I include writing) is not only central to what the legal
system is all about, and not only the product of law as we know it, but basically the only thing
that lawyers and the legal system have.‖34 Speech may be the lawyer‘s tools (our ―saws or
scalpels‖35), but speech in the abstract is not the end-product of the law or the service that clients
seek. Attorneys are not hired speech-writers, journalists, academics, or street-corner protestors.
33

Frederick Schauer, Speech of Law and Law of Speech, 49 ARK. L. REV. 687, 688 (1997).
Id.
35
Id.
34

10

Nor is speech (including ―argument, persuasion, negotiation, and documentation‖36), ―the only
thing that . . . the legal system ha[s].‖ What the legal system has to offer is the force of law.
Clients use attorney speech to invoke and/or to avoid the power of the government. Often what
clients‘ pay for when they hire an attorney is not speech at all (even though it is accomplished
through speech), but a legally binding result: a plea agreement; the creation of a business
association; an estate that will be probated according to the wishes of the testator; debts
discharged; recognition under the Geneva Conventions; the dissolution of a marriage; payment
for personal injuries caused by another; a valid title to property, provide just a handful of
examples. Even when a client hires an attorney ―to speak‖ on her behalf in litigation or a
criminal prosecution, eloquence is not the primary product sought—the reason for using an
attorney is that the attorney has the training and skills to know (1) what arguments are legally
significant and most likely to effectively invoke the force of law on behalf of that client and (2)
the methods for raising and preserving legal and constitutional rights, including the use of
procedural devices, as well as temporary, preliminary, or extraordinary relief having the force of
law.
In like manner, the attorney is using language when the attorney drafts a document or
writes a brief for a client, but it isn‘t just ―speech.‖ Rather, it is the intention of the attorney and
client that the speech will invoke the power of the law—meaning that the power of the
government will be brought to bear in favor or against a person or entity because of that speech.
Additionally, the client may come to seek advice about the lawfulness or unlawfulness of
proposed conduct. Although the advice itself does not have the force of law, the advice is
intended to protect the client from the power of government-imposed punishment or liability.
36

As a contrasting example, all the academic has is speech—argument, persuasion, and documentation.
While we hope that our arguments and documentation will persuade, they have no power to bind anyone—even if
published in the HARVARD LAW REVIEW, the speech lacks the force of law.

11

For purposes of illustration, a subpoena or summons could be termed to solely constitute
―speech‖—but it is far more than speech. It is a government-backed and government-enforced
order for information, documents, or appearance, the violation of which may lead to sanctions or
arrest. While the modern subpoena is done through speech, it has the same effect as a physical
search or seizure of the requested materials or person. Indeed, the modern summons for civil
service of process is the descendant of the writ of capias ad respondendum—a writ that ―directed
the sheriff to secure the defendant‘s appearance by taking him into custody.‖37 In modern
practice—rather than physically arrest a person who is sued, ―the capias ad respondendum has
given way to personal service of summons or other form of notice.‖38 The point is that while
such ―notice‖ in the form of a summons or subpoena could technically be termed ―speech‖—and
often even attorney speech, it serves the same function as did historical government brute force.
The tie of attorney speech to government power is far broader than in the blatant example
of compulsory process. Anytime a judgment is rendered or a person is convicted of a crime,
individuals are subject to government brute force—defendants held liable will pay the judgment
at the risk of wages being garnished or their property being seized and sold. On the other hand, if
the plaintiff loses, the plaintiff will have to bear the cost of harm done to her and will not be
allowed to seek retribution or vengeance on the person allegedly responsible for her harm. In the
transactional context, attorneys set up business entities and contractual structures that protect and
increase the property of their clients, including through organizing and profiting from the labor
of others. Such arrangements, if created properly, are backed by the law, by government
power—which is how they effectively protect individuals from liability and maximize their
wealth.

37
38

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

12

It is this very quality of attorney speech—its tie to the power of government and to the
force of law—that makes attorney speech distinct, and which requires that it receive special
protection attuned to its function. Recognizing the need to protect attorney speech does not
create a right to attorney ―unregulated talkativeness‖ either in or out of court.39 Rather, the
needed protection is tied to the essential role attorneys play in access to and in the fair
administration of justice. Thus, the recognized protection would cover such attorney speech as
the right to raise and argue relevant arguments in official proceedings, to create legally binding
entities and agreements for clients, to give advice about lawfulness or unlawfulness of client
conduct, or to otherwise preserve people‘s constitutional and legal rights—in short, to invoke or
avoid the power of government.
B. Protection of Life, Liberty and Property
Lawyers are not paid to provide ―speech‖—rather, their services are aimed at securing
life, liberty, and/or property. This is as true for the transactional attorney (involved in creating
legally-recognized business organizations and contracts that have the potential to protect and
enhance‘ people‘s property, avoid liability, and bind themselves and others) as it is the civil
litigator and the criminal lawyer. Of course rights to life, liberty, and property are among the
inalienable rights given to all men and women recognized in the Declaration of Independence as
providing an essential rationale for the creation of our government.40 Indeed, these rights are
secured against state or federal intrusion through the Fifth and Fourteenth Amendments.41

39

ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 25 (1948) (―The
First Amendment [] is not the guardian of unregulated talkativeness.‖).
40
The Declaration of Independence para. 2 (U.S. 1776); cf. Landon W. Magnusson, Selling Ourselves into
Slavery: An Originalist Defense of Tacit Substantive Limits to the Article V Amendment Process and the Double –
Entendre of Unalienable, 87 U. DET. MERCY L. REV. 415, Part II.A (2010).
41
U.S. CONST. amend. V (―No person shall . . . be deprived of life, liberty, or peroperty, without due
process of law.‖); U.S. CONST. amend. XIV (―[N]or shall any State deprive any person of life, liberty, or property,
without due process of law.‖).

13

In recounting the legal profession‘s narrative, Geoffrey Hazard summarizes, ―the legal
profession‘s basic narrative is a defense of due process. The lawyer‘s work consists of resistance
to government intervention in the lives, liberty, or property of private parties.‖42 Although
Hazard questions the propriety and legitimacy of equating life and liberty with property, 43 he
notes that this equivalence ―was established in the Constitution‖ which ―expresses the parity of
person and property: ‗No person shall . . . be deprived of life, liberty, or property, without due
process of law.‘‖44 Hazard posits that ―protection of property [particularly business property]
might be viewed as (1) essential to a stable and prosperous society and (2) continually threatened
by majoritarian democratic politics. This would validate the legal profession‘s role as mediator
between property and democracy.‖45 Hazard ultimately concludes:
Since the adoption of the Constitution, the basic function of the legal profession in the
United States has been to reconcile the constitutional necessities of an economic system
devoted to the production of wealth through business enterprise with a political system
that is predominantly democratic. A related function is to reconcile majoritarian politics
with protection of the rights of religious and other minorities. The lawyer‘s ―practice‖ of
bringing about these accommodations embodies the legal profession‘s primary set of
skills and expresses its primary role in the American social system.46
It is this primary, and constitutionally essential, role of attorney speech in protecting life, liberty,
and property from governmental intrusion (which, in a self-governing society, includes
protection from majoritarian excess and overreaction) that requires special protection. Monroe
Freedman and Abbe Smith similarly argue that the rights comprising the adversary system (and

42

Geoffrey C. Hazard, The Future of Legal Ethics, 100 YALE L. J. 1239, 1246 (1991). See also id. at 1266
(―[T]he legal profession‘s traditional ideal viewed the lawyer as the protector of life, liberty, and property through
due process.‖)
43
Id. at 1266. Notably, Hazard posits that while the ―traditional ideal‖ is that lawyers protect life, liberty
and property through due process, yet in actual practice, the work of lawyers ―primarily involves the protection of
property, specifically business property.‖ Id. Hazard states that ―[t]he profession‘s legitimacy in performing this
function [protecting business property] rests on the continual reaffirmation, under the rubric of due process, of the
parity between property on the one hand and life and liberty on the other.‖ Id.
44
Id. at 1245.
45
Id. at 1267.
46
Id. at 1278.

14

that should shape the professional responsibilities of the lawyer) are ―included in the broad and
fundamental concept that no person may be deprived of life, liberty, or property without due
process of law.‖47 They conclude that ―[a]n essential function of the adversary system, therefore,
is to maintain a free society in which individual human rights are central.‖ Freedman and Smith
contend that by preserving these rights that comprise due process, ―[p]recious as those objectives
are, we also seek through the adversary system ‗to preserve the integrity of society itself . . . [by]
keeping sound and wholesome the procedure by which society visits its condemnation on an
erring member.‘‖48 Such societal condemnation obviously exists in the criminal context, but also
whenever government deprives a person of life, liberty, or property, including in civil litigation
and by legislation having such an effect.
While Hazard, Freedman, and Smith discuss the attorney‘s central role in protecting due
process as a key to understanding professional ethics, it is my contention that this role should be
defining for determining the scope of Free Speech Clause protection to be afforded attorney
speech.
A major debate in the legal ethics academy is whether attorneys should be considered
(and thus regulated as) professionals or as service providers.49 Yet the debate fails to recognize
the distinct and important role of the attorney in the administration of justice. For example,
Thomas Morgan argues that attorneys should be regulated like other service providers because
47

See MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LEGAL ETHICS 13 (3d ed. 2004).
See id. at 18 (quoting Fuller, The Adversary System, in TALKS ON AMERICAN LAW 35 (H. Berman ed.,
1960)). Freedman and Smith also quote Lawrence H. Tribe making a similar point, specifically in the criminal
context:
The presumption of innocence, the rights to counsel and confrontation, the privilege against selfincrimination, and a variety of other trial rights, amatter not only as devices for achieving or avoiding
certain kinds of trial outcomes, but also as affirmations of respect for the accused as a human being—
affirmations that remind him and the public about the sort of society we want to become and, indeed, about
the sort of society we are.
See id. at 19 (quoting Lawrence H. Tribe, Trial by Mathematical Precision and Ritual in the Legal Process, 84
HARV. L. REV. 1329, 1391–1392 (1971)).
49
See generally MORGAN, supra note 18 (arguing that lawyers should not be treated as professionals, but as
service providers); see also Terry, supra note 19, at 205–06.
48

15

―[m]uch of what lawyers do is what most merchants do, i.e., sell commodities.‖50 However, the
―commodity‖ sold has special characteristics that create a need for special protection from
certain forms of regulation—not applicable to the commodities sold by most merchants. The
commodity that attorneys are selling is the invocation or avoidance of government power.
Attorneys are selling/providing the force of law to protect the individual‘s life, liberty or
property. This fact does not necessarily reach Morgan‘s argument that attorneys should be
categorized as service providers rather than as professionals (a debate which is aside from the
present discussion). But it is important in understanding the protections that must be afforded to
attorneys in providing their services, selling their commodities, or fulfilling their profession
(however attorney services are ultimately categorized). Regardless of the classification, the fact
remains that the commodity sold (1) is tied to the power of government; and (2) serves a defining
attribute of our constitutional government—providing for the protection of individual or
collective life, liberty, or property. Thus, that commodity, the speech of the attorney, cannot be
abridged in such a way that it defeats this purpose that is central to our constitutional compact.
Morgan‘s argument that attorneys can (and will) be regulated by outside entities because
they really are commodity sellers or service providers, misses the essential point. The essential
point is that attorneys (and perhaps some day others who are allowed to provide legal services
after the inevitable breakdown of certain unauthorized practice of law restrictions51) need special

50

MORGAN, supra note 18, at 95. Notably, Morgan is making this claim in light of the growing existence of
and access to standardized forms for legal services. Thus he argues, ―the result of document standardization is that it
is now an open secret that an increasing amount of what lawyers do is no longer a complex task requiring expertise
worthy of premium pay. Much of what lawyers do is what most merchants do, i.e., sell commodities that ultimately
command only a price set in competition with many potential sellers.‖ Id.
51
While there are legitimate reaches to unauthorized practice of law rules, restrictions creating the current
enforced monopoly of all legal services to lawyers will certainly be loosened. The breakdown (to a certain extent) of
unauthorized practice of law rules appears to be inevitable in part because of the globalization of lawyering (see
Terry, supra note 19, at 205–06), and the growing existence of and access to standardized forms for legal services
(see MORGAN, supra note 18, at 95). Morgan argues that the regime should change so that certain levels of legal
services could be permissibly provided by someone with a period of specific training, but less than that required of a

16

protection for speech that is necessary to fulfill their key function in providing individuals with
access to justice—that is, access to the invocation or avoidance of government power in the
protection of life, liberty, and property.
C. Access to Justice
As used in this article and in the access-to-justice theory of the First Amendment, the idea
of access to justice is far broader than the constitutionally-recognized, although ill-defined, right
to court access52 or the constitutionally-recognized right to counsel for indigent defendants.53
Additionally, it is significantly broader than ―access to justice‖ in the oft-used sense of providing
legal services to those of low or moderate income.54
Indeed, in discussing ―access to justice‖ here, I include access to justice and the fair
administration of the laws by anyone—which means that work of a lawyer (whether paid or not,
whether transactional or litigation, whether civil, administrative or criminal) that serves to invoke
or avoid the power of the government in securing individual or collective life, liberty or property.
The access-to-justice theory recognizes the constitutional right that all litigants have to counsel.
Even where litigants do not have a constitutional right to have the state provide legal counsel for
them,55 they still have a constitutional right to hire a lawyer and have the lawyer speak on their

full-fledged lawyer. See MORGAN, supra note 18, at 214–15. Perhaps jurisdictions will begin to allow and schools
will begin to offer such training and licensing. Such a system would certainly be an improvement over the current
regime and perhaps would help to solve the long-existing lack of legal services for the middle class.
52
See, e.g., Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (―Decisions of this Court have grounded
the right of access to courts in the Article IV of the Privileges and Immunities Clause, the First Amendment Petition
Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due
Process Clauses‖ (citations omitted)); see also Tarkington, Free Speech Right to Impugn, supra note 24, at 379–85
(reviewing Supreme Court decisions regarding the constitutional right to court access in the context of raising claims
of judicial bias).
53
See Gideon v. Wainwright, 372 U.S. 335 (1963).
54
See, e.g., DEBORAH RHODE, ACCESS TO JUSTICE (2004).
55
See, e.g., Gideon v. Wainright, 372 U.S. 335 (1963) (recognizing Sixth Amendment right to counsel for
state indigent criminal defendants).

17

behalf and act as their advocate and advisor.56 As Monroe Freedman and Abbe Smith have
summarized, ―the Supreme Court has reiterated that the right to counsel is ‗the most precious of
our rights,‘ because it affects one‘s ability to assert any other right.‖57 The Supreme Court, in
recognizing the constitutional right for indigent criminal defendants to be supplied with counsel,
explained: ―The right to be heard would be, in many cases, of little avail if it did not comprehend
the right to be heard by counsel.‖58 The Court also recognized that ―assistance of counsel‖ is
―deemed necessary to insure fundamental human rights of life and liberty‖ without which justice
cannot be done.59 As set forth in the preceding discussion, lawyer speech plays a critical role in
our constitutional justice system by invoking and avoiding government power on behalf of
clients and thus preserving their individual or collective life, liberty, and/or property.
Although ―access to justice,‖ as used here, encompasses speech broader than the right to
court access, it certainly includes and protects attorney speech commensurate with that right.60 In
our justice system, attorneys are the gateway to effective access to the third branch of
government. Litigants have constitutional rights to due process and court access, but those rights
would be of little value if attorneys could be restricted from speaking on behalf of clients and
securing client‘s underlying rights.61
Thus, as more fully developed below, in examining the essential role of the attorney in
our system of justice for everyone, access to justice includes at least (1) the ability to invoke the

56

Powell v. Alabama, 287 U.S. 45, 69 (1932) (explaining that it ―would be a denial of a hearing, and
therefore of due process‖ under the Fifth and Fourteenth Amendments to prohibit litigants from employing attorneys
to represent them); see also Potashnick v. Port City Const. Co., 609 F.2d 1101 (5 th Cir. 1980) (discussing the
―constitutional right to retain hired counsel‖).
57
FREEDMAN & SMITH, supra note 47, at 13.
58
Gideon, 372 U.S. at 344–45 (1963).
59
Id. at 343.
60
See infra notes 215–23, and accompanying text (discussing the constitutional right to court access).
61
See Tarkington, Free Speech Right to Impugn, supra note 24, at 383, 419–22 (―Due process guarantees to
criminal and civil litigants . . . are defeated if the attorney has no right to express and vindicate them in court
proceedings.‖)

18

protection of the law; (2) the ability to obtain legal advice about the lawfulness or unlawfulness
of proposed or past conduct; (3) the ability to access court and government processes and to raise
relevant and colorable arguments therein; and (4) the ability to secure the constitutional rights of
others.
II. Methods for Analyzing the Constitutionality of Attorney Speech Regulation
In the existing literature and case law, various theories emerge regarding the appropriate
analysis for determining the constitutionality of restrictions on attorney speech. There is no
consensus or agreed upon method. Nevertheless, as will be shown by reviewing the existing
views, all of them fail to adequately protect the speech of attorneys when made in their capacity
as an attorney. Indeed, the U.S. Supreme Court has seemed to condone this dichotomy by stating,
in dicta: ―It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever
right to ‗free speech‘ an attorney has is extremely circumscribed.‖62 A central idea of the accessto-justice theory is that attorneys—in their capacity as attorneys both in and out of court—
perform essential functions in our justice system. Consequently, their speech cannot be
circumscribed to frustrate those essential functions—especially when that speech is made by a
lawyer acting as a lawyer. As Humanitarian Law Project illustrates, the most obstructive form of
lawyer regulation is that which denies attorneys their essential role to speak to and on behalf of
clients.
A. All Restrictions by the Judiciary or Bar are Constitutional
1. Constitutional Conditions of Practicing Law
The traditional American view is that attorneys have no Free Speech protection for

62

Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991) (citations omitted).

19

restrictions on their speech that are imposed by the judiciary or state bar.63 The central thesis of
this constitutional conditions theory is that, as a condition of receiving a license to practice law,
the lawyer voluntarily waives her constitutional rights to free speech and agrees to abide by any
conditions or restrictions on her speech that the judiciary or bar may impose. Justice Stewart, in
words that are still frequently cited by state courts, explained in his In re Sawyer concurrence:
If . . . there runs through the principal opinion an intimation that a lawyer can invoke the
constitutional right of free speech to immunize himself from even-handed discipline for
proven unethical conduct, it is an intimation in which I do not join. . . . Obedience to
ethical precepts may require abstention from what in other circumstances might be
constitutionally protected speech.64
For example, in 2003, the Ohio Supreme Court paraphrased Stewart‘s concurrence in holding
that, ―attorneys may not invoke the federal constitutional right of free speech to immunize
themselves from evenhanded discipline for proven unethical conduct.‖65 (Which raises the
quandary of how speech can really be ―proven unethical conduct‖ if it would also be entitled to
―federal constitutional‖ protection.)
63

As noted above, this classic view was expressed by Benjamin Cardozo thus: ―Membership in the Bar is a
privilege burdened with conditions.‖ See In re Rouss, 221 N.Y. 81, 84 (1917). The idea can be seen in earlier cases
even as to traditional judiciary-imposed standards for attorneys before the existence of codes of lawyer conduct. In
Bradley v. Fisher. 80 U.S. 335, 355 (1871), the Supreme Court declared that attorneys agree, upon admission to the
bar to be respectful to the judiciary—as a condition of practicing law. See id. (explaining that when admitted,
attorneys take upon themselves the obligation ―to maintain at all times the respect due to courts of justice and
judicial officers,‖ which ―includes abstaining out of court from all insulting language and offensive conduct toward
the judges personally for their judicial acts.‖).
Professor Zacharias notes that in colonial and post-revolutionary America, ―[a]ny regulation of lawyers
came from judges exercising their authority to admit lawyers to practice in their courts,‖ as ―judges could forbid
lawyers to appear, sanction them for litigation misconduct, or punish them in more indirect ways.‖ See Zacharias,
supra note 14, at 1156. In the late nineteenth and early twentieth centuries, bar associations were created and
―represented the modern form of lawyer self-regulation.‖ See id. at 1158–60. In the 1920s ―a movement began to
produce court rules or statutes requiring all practicing lawyers to belong to state bar organizations,‖ which ―allowed
the organizations to collect fees, control (and limit) admission to the bar, and participate in the discipline of
lawyers.‖ See id. at 1161; see generally, Andrews, supra note 14.
Freedman and Smith argue that the creation of ethics codes in the early twentieth century was ―not inspired
purely by disinterested concerns with improving the ethical conduct of lawyers,‖ but, instead, ―the established bar
adopted educational requirements, standards of admission, ‗canons of ethics‘ designed to maintain a predominantly
native-born, white, Anglo-Saxon, Protestant monopoly of the legal profession.‖ See FREEDMAN & SMITH, supra note
47, at 3.
64
In re Sawyer, 360 U.S. 622, 646–47 (1959) (Stewart, J., concurring).
65
Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 429 (Ohio 2003) (paraphrasing Justice
Stewart‘s concurrence in In re Sawyer, 360 U.S. at 646–47).

20

In Gentile v. State Bar of Nevada, Justice Rehnquist, speaking for four justices,
articulated the constitutional conditions argument extremely broadly:
When petitioner was admitted to practice law before the Nevada courts, the oath which
he took recited that ―I will support, abide by, and follow the Rules of Professional
Conduct as are now or may hereafter be adopted by the Supreme Court‖ . . . The First
Amendment does not excuse him from that obligation, nor should it forbid the discipline
imposed upon him by the Supreme Court of Nevada.66
Because the lawyer, Dominic Gentile, had sworn to abide by the Rules of Professional Conduct
when he was admitted to the bar, he could not object to any restriction imposed by the state bar
on the basis that it abridged his freedom of speech. He agreed when he was admitted to the bar to
forfeit his rights to free speech, and thus the state could constitutionally regulate attorney speech
without violating the First Amendment. Courts have cited, and continue to cite, the constitutional
conditions idea as sufficient to defeat First Amendment challenges to judicially-imposed
regulation or punishment.67
Of course, one of the major problems with the constitutional conditions argument is that
it is patently inaccurate. While pronouncing the constitutional conditions theory from time to
time, the Supreme Court has repeatedly held attorney regulations unconstitutional as violative of
attorneys‘ First Amendment rights.68 The constitutional conditions theory is invoked selectively.

66

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1081 (1991) (Rehnquist, J.) (emphasis added).
See, e.g., In re Pyle, 283 Kan. 807, 822–23 (2007) (―A lawyer's right to free speech is tempered by his or
her obligations to the courts and the bar, obligations ordinary citizens do not undertake.‖); In re Shearin, 765 A.2d
930, 938 (Del. 2000) (holding that ―there are ethical obligations imposed upon a Delaware lawyer, which qualify the
lawyer‘s constitutional right to freedom of speech‖); In re Guy, 756 A.2d 875, 881 (Del. 2000) (explaining that
―Respondent's right to free speech did not supersede his ethical obligation as a member of the Bar‖); Iowa Sup. Ct.
Board of Prof‘l Ethics and Conduct v. Ronwin, 557 N.W.2d 515, 519 (Iowa 1996) (stating that ―a lawyer‘s right to
free speech does not include the right to violate the statutes and canons proscribing unethical conduct‖); In re
Erdmann, 33 N.Y. 2d 559, 561-62 (1973) (Burke, J., dissenting) (explaining that statements by attorney for article in
LIFE magazine ―violate restrictions placed on attorneys which they impliedly assume when they accept admission to
the Bar‖). State v. Nelson, 201 Kan. 637, 640 (1972) (―the right to free speech may not be invoked to protect an
attorney against discipline for unethical conduct‖); see also In re Westfall, 808 S.W.2d 829, 834 (Mo. 1991) (―[A]n
attorney‘s voluntary entrance to the bar acts as a voluntary waiver of the [First Amendment] right to criticize the
judiciary.‖).
68
See, e.g., Republican Party of Minnesota v. White, 536 U.S. 765 (2002); Legal Services Corp. v.
Velazquez, 531 U.S. 533, 541 (2001); NAACP v. Button, 371 U.S. 415 (1963); Bates v. State Bar of Arizona, 433
67

21

Sometimes it prevents First Amendment scrutiny, but sometimes not, and there is not any
established method for determining when it is or is not applicable. However, as noted below,
Kathleen Sullivan has argued that the case law can be understood as providing normal First
Amendment protection when attorneys are speaking ―as participants in ordinary public or
commercial discourse on a par with other speakers in those realms,‖ but that their free speech
rights are limited (or even lost) when attorneys are speaking in their role of attorney as officers
of the court or ―delegates of state power.‖69
A corollary of the constitutional conditions theory is that the Constitution does not
prohibit any restrictions on speech that the attorney could not freely engage in prior to becoming
an attorney. As explained by W. Bradley Wendel:
Suppose a lawyer is disciplined for making racist remarks in a closing argument at trial.
It is no avail to claim that the disciplinary agency is requiring the lawyer to surrender a
constitutional right in exchange for the privilege of trying cases before the courts of the
state because the lawyer had no preexisting right to address a jury in a courtroom.70
That is, because a non-lawyer lacks a constitutional (or any) right to speak on behalf of a client
in a court proceeding, the lawyer similarly has no constitutional right to engage in such speech.
While the example provided by Wendel is alluring, the problem is the ultimate implications of
the argument. Indeed, the Humanitarian Law Project decision can be read to espouse a similar
view. The Court concludes that attorneys are not denied their free speech rights because they can
independently advocate whatever views they want.71 That is, they can act as lay citizens. What
they cannot do is act as attorneys—they cannot engage in any speech or advice to or in
U.S. 421 (1977) (striking rule of professional conduct consisting of traditional ban on all attorney advertising); In re
Primus, 436 U.S. 412 (1978) (striking rule of professional conduct prohibiting direct solicitation by non-profit
groups like the ACLU); In re R.M.J., 455 U.S. 191 (1982) (striking rule of professional conduct restrictions on
advertising); Zauderer v. Office of Disciplinary Counsel of the supreme Court of Ohio, 471 U.S. 626 (1985) (same).
69
Kathleen Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers‘
First Amendment Rights, 67 FORDHAM L. REV. 569, 584 (1998)
70
W. Bradley Wendel, Free Speech for Lawyers, 28 HASTINGS CONST. L. Q. 305, 373–74 (2001).
71
Holder v. Humanitarian Law Project, slip op. at 2722–23 (2010) (―The statute does not prohibit
independent advocacy or expression of any kind.‖).

22

coordination with their proposed clients.72 Such a theory completely denies the attorney‘s
function in our system of justice.
In that vein, Humanitarian Law Project is in tension with the Supreme Court‘s prior
decisions in Legal Services Corp. v. Valezquez73 and NAACP v. Button,74 both of which correctly
recognized that attorneys must have free speech rights to perform at least some lawyer
functions—even though they could not have engaged in such speech prior to becoming an
attorney. In Valezquez, the Court held that attorneys have a First Amendment right to raise
relevant and colorable arguments in legal proceedings on behalf of clients.75 Certainly this is a
speech right that the attorney did not have prior to being sworn into the bar, but the Court found
it constitutionally protected and rightly so. In order for the client to be able to vindicate her legal
and constitutional rights, the attorney cannot be prohibited from undertaking such speech.76
Indeed, as the Valezquez Court noted, if Congress could prohibit attorneys from raising
constitutional challenges to congressional legislation, the very function of the judiciary would be
frustrated.77 Similarly, in Button, the Court held that Virginia could not constitutionally prohibit
NAACP lawyers from advising members of the African American community of their rights and
offering to instigate litigation on their behalf.78 The Button Court recognized that such
―communication‖ between attorney and prospective clients and the subsequent litigation was ―a

72

See id. at 2722–24.
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001).
74
NAACP v. Button, 371 U.S. 415 (1963).
75
Velazquez, 531 U.S. at 545–47 (holding that the statute prohibited ―speech and expression‖ and that
―attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the
case‖); see id. at 546 (noting that the statute attempts ―to exclude from litigation those arguments and theories
Congress finds unacceptable but which by their nature are within the province of the courts to consider‖).
76
See Tarkington, Free Speech Right to Impugn, supra note 24, 371–73 & 417–22.
77
See Velazquez, 531 U.S. at 545 (―By seeking to prohibit the analysis of certain legal issues and to
truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts
must depend for the proper exercise of the judicial power.‖(Emphasis added.)).
78
See Button, 371 U.S. at 421–22.
73

23

form of political expression‖ protected by the First Amendment.79 Notably, in both Button and
Velazquez, the restriction purportedly only prohibited attorney speech, and did not directly
restrict client speech. Nevertheless, the Court in both cases recognized a Free Speech Clause
right belonging to the lawyer to speak to and on behalf of her clients—even in official court
processes.
2. Protection of Essential Functions through Traditional “Self-Regulation”
As noted above, the flip side of the constitutional conditions argument is its alleged
saving grace. Under traditional self-regulation (by which I include regulation by the state
judiciary and bar associations), while attorneys purportedly waive their constitutional rights to
free speech as to such regulation, the judiciary and bar understand the legal system and
theoretically impose appropriate restrictions on speech.
Indeed, one of the traditional justifications for allowing attorneys and other traditional
professions to self-regulate is that attorneys ―alone have the specialized knowledge to understand
the unique nature of their profession‘s problems and hence, [will alone know how] to apply
effective cures.‖80 Regulation by the judiciary is generally attuned to this same purpose. The
judiciary, generally composed of lawyers,81 understands the role of attorneys in our system of
justice and so, in theory, will prescribe appropriate regulations.
Unfortunately, there have been instances where the judiciary has failed to protect speech
that should fall within the core protection of attorney functions. For example, as I have argued in
previous articles, the judiciary has failed to protect attorney speech that is critical of the
79

See id. at 420.
William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California
State Bar, 22 PEPP. L. REV. 485, 490 (1995).
81
See, e.g., MORGAN, supra note 18, at 73 (noting that throughout the ―1950s and 1960s, lawyers could get
away with convincing themselves they were part of a self-regulating profession‖ in part because ―rules of
professional conduct has been established by bar associations working through state supreme courts whose justices
had been lawyers only a few years before‖ (emphasis added)).
80

24

judiciary—even when that speech has been used to raise a relevant argument of judicial bias in a
court proceeding.82 Indeed, the judiciary has harshly punished attorneys for speech impugning
judiciary integrity regardless of the forum in which the speech has been made and regardless of
whether the attorney was acting in a representative capacity when the speech was made.83
Attorneys play a key role in checking government power when it encroaches upon or
threatens the life, liberty, or property of individuals. Often the criminal defense attorney or civil
rights litigator is upheld as the archetypal example of the attorney who plays this role.84 Yet
attorneys also challenge judicial power. Every appellate attorney challenges government and
government decrees—but the attorney is challenging judicial action rather than actions of the
executive or legislative branch.85 Thus, leaving regulation and punishment solely in the hands of
the judiciary leaves open the problem that the judiciary is left to punish or restrict challenges to
their own actions.
Further, as Benjamin H. Barton has argued, although regulation by state supreme courts
has the advantage of coming from someone who understands the needs of the courts and of
attorneys,86 this advantage is ―tempered by the fact that courts rarely use this expertise. They
generally delegate almost all of their authority back to bar associations or regulatory agencies.‖87
Most importantly, in light of the reality that regulation is imposed by entities other than
the state judiciary, the underlying compact of the constitutional conditions idea is undermined.
The traditional idea was that attorneys waived their rights to free speech, but the regulation came
82

See generally Tarkington, Free Speech Right to Impugn, supra note 24; Tarkington, The Truth Be
Damned, supra note 24.
83
Tarkington, The Truth Be Damned, supra note 24 at 1569–70.
84
See, e.g., Sullivan, supra note 69 at 587–88 (―It would plainly be untenable for the Court to treat lawyers
as entirely the agents of the state, for part of their very job description within the administration of justice is to
challenge the state—for example, in the capacities of criminal defense lawyer or civil rights litigator.‖)
85
See Tarkington, Free Speech Right to Impugn, supra note 24, 391–92.
86
Benjamin H. Barton, An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer
Regulation—Courts, Legislatures, or the Market?, 37 GA. L. REV. 1167, 1210 (2003).
87
Id.

25

from the state judiciary or state bar (an insular and inside group) who would understand the role
of the attorney and whom the attorney could trust to impose appropriate regulation. Although the
compact was always imperfect, the basic premise is significantly weakened where regulation of
attorneys comes from outsiders.
B. Normal First Amendment Theory and Doctrine
The primary alternate to the ―constitutional conditions‖ method of denying attorneys
access to First Amendment protections is to use normal First Amendment case law and doctrines.
Notably, outside of the constitutional conditions argument that attorneys have ceded their rights
to free speech, the Supreme Court has employed normal First Amendment analysis and doctrine
in examining regulations or punishment of attorney speech. For example, the Supreme Court has
analyzed restrictions on attorney advertising by applying the Central Hudson commercial speech
test. The Court has not modified the test based on the fact that the regulation restricts attorney
speech.88 Although the state interests and the regulations themselves may involve interests
specific to attorneys, the analysis used to test the constitutionality of the restriction, along with
the level of scrutiny employed, are the same used for regulation of any other service provider or
regulated industry. Further, In Republican Party of Minnesota v. White,89 the Court applied strict
scrutiny—the normal level for restrictions on political speech—in analyzing the constitutionality
of an announce clause, which prohibited attorneys (and judges) running for judicial office from
expressing their views on certain political issues.90
The options for analyzing attorney speech have thus taken two completely opposed
paths—either the attorney has no constitutional rights, or the attorney has regular constitutional
88

See e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623–24 (1995); Shapero v. Ky. Bar Ass‘n, 486 U.S.
466, 472 (1988); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 637–44 (1985);
In re R.M.J., 455 U.S. 191, 203–06 (1982); Bates v. State Bar of Ariz., 433 U.S. 350, 365 (1977).
89
536 U.S. 765 (2002).
90
See id.

26

rights. (This may be contrasted with the special analysis created by the Supreme Court for
restrictions on speech of public employees.91) Kathleen Sullivan has contended that the cases can
be understood as depending on whether the attorney is acting in a public or private role—when
an attorney is acting more as an officer of state power (for example, in courtroom speech), then
the constitutional conditions argument is used and the attorney has no First Amendment rights.
However, when the attorney is acting more as a private citizen, then the attorney has speech
rights similar to those of other citizens.92 The Supreme Court, however, has not expressly
adopted such a dichotomy in its treatment of attorney speech.
Even when normal First Amendment doctrines are employed, they are not always
sufficient to protect the essential access-to-justice functions performed by attorneys through their
speech. As noted, in Milavetz, the problematic attribute of the regulation was that it restricted the
ability of attorneys to fully advise a client about the boundaries of lawful and unlawful behavior.
Yet the argument used to contest the regulation‘s constitutionality was vagueness. 93 Similarly, in
Humanitarian Law Project, one of the primary arguments employed by plaintiffs (and the one
relied on by the Ninth Circuit in finding the law unconstitutional) was vagueness, when the true
problem with the law is that it denies attorneys the ability to invoke the law on behalf of desired

91

See, e.g., Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568
(1968) (―The problem in any case is to arrive at a balance between the interests of the [public employee], as a
citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.‖). The Pickering test has been significantly
undermined by the Supreme Court‘s decision in Garcetti v. Ceballos, which held that public employees lack Free
Speech Clause protection for speech made pursuant to their employment duties. See Garcetti v. Ceballos, 547 U.S.
410, 421 (2006).
92
Sullivan, supra note 69, at 569 (positing that ―lawyers are sometimes perceived as classic speakers in
public discourse‖; however, attorneys in some roles are ―thought of as delegates of state power—officers of the
court and professional licensees whose special privileges are conditioned upon foregoing some speech rights that
others enjoy‖); id. at 584 (―The lawyer speech cases reflect a dichotomy between the Court‘s treatment of lawyers as
participants in ordinary public or commercial discourse on a par with other speakers in those realms, and its
treatment of lawyers as subject to some additional speech restrictions by virtue of their ties to state power.‖)
93
See Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324, 1337 (2010).

27

clientele, or even advise them on how to do so.94 In both cases, the Fifth and First Amendment
prohibition on vague laws was the primary argument used (apparently viewed as the most likely
to be successful). In neither case was there a theory or doctrine of the Free Speech Clause that
adequately addressed the core problems with the restrictions: specifically that they frustrated the
essential role of attorneys in our system of justice.
The insufficiency of normal First Amendment doctrines to protect the essential role of
attorneys in our system of justice is exacerbated by the private/public distinction noted by
Professor Sullivan. To the extent that the public/private distinction is used in determining
whether constitutional conditions or First Amendment doctrines are used, attorneys are
recognized as having First Amendment rights when their speech is not essential to our system of
justice—because in those instances their speech is seen as private citizen speech. However,
attorneys lack free speech protection (even that provided through normal First Amendment
doctrines) for speech that is essential to fulfilling their role in our justice system.
C. Analogy to Other Areas of Limited Protection
While not generally employed by courts, a final method for analyzing attorney speech
questions is to analogize attorney speech to other, more developed, areas of limited speech
protection. For example, Kathleen Sullivan and W. Bradley Wendel have analogized attorney
speech problems to government-funded speech, speech of public employees, and speech made in
a non-public forum.95

94

See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2714 (2010).
See Sullivan, supra note 69, at 585–87 (analogizing regulation of attorney speech to public employee
speech regulation, government-funded speech and speech in a non-public forum); Wendel, supra note 70, at 375–81
(same); Terri R. Day, Speak No Evil: Legal Ethics v. The First Amendment, 32 J. LEGAL PROF. 161, 187–90 (2008)
(analogizing attorney speech to public employee speech); Caprice L. Roberts, Note, Standing Committee on
Discipline v. Yagman: Missing the Point of Ethical Restrictions on Attorney Criticism of the Judiciary?, 54 WASH.
& LEE L. REV. 817, 846–54 (1997).
95

28

Notably, in all of these analogies, attorney speech is treated as deserving little or no
protection whenever the attorney is speaking in her capacity as an attorney. The premise of the
government-funded speech theory, for example, is that that the government has funded the court
systems and made attorneys officers of the court, and thus can restrict attorney speech made in
that capacity.96 Further, in the analogy to public employee speech, the attorney as ―officer of the
court‖ is treated in like manner to an employee of the court whose speech rights vis-à-vis the
judiciary are extremely circumscribed.97 Finally, in the non-public forum analog, the entire legal
system is viewed as a non-public forum where the government, which created the forum, can
restrict the speech of participant attorneys.98 Although some of the analogies are more
problematic than others, none of them are satisfactory, and all of them fail to protect speech of
attorneys made in the role of attorney, counselor, or representative of others.99 Consequently, as I
have argued elsewhere, these analogies fail to adequately protect litigant rights, including due
process and access to courts rights. Moreover, such analogies do not recognize the
constitutionally-required role of our judicial system or the role of attorneys in that system.100
Finally, all of the analogies are limited to examining restrictions on attorney speech made
in or related to a court proceeding. The analogies fail to even acknowledge other areas of
potential restriction on attorney speech, including speech made in advisory contexts to clients, or

96

See Tarkington, Free Speech Right to Impugn, supra note 24, at 393–401 (discussing the analogy of
attorney speech regulation to government funded expression).
97
See id. at 401–409 (discussing the analogy of attorney speech to the speech of public employees).
98
See id. at 409–413 (discussing the treatment of attorney speech as speech made in a non-public forum).
99
See id. at 392–413 (―Whatever the term ‗officer of the court‘ means, it cannot mean something that
denies the very function of the court system and the role of attorneys therein, particularly where it results in the loss
of rights and protections for litigants. Under each of these analogies such protections are lost.‖).
100
See id. As I show in A Free Speech Right to Impugn Judicial Integrity in Court Proceedings,
[E]ach of these analogies fails to recognize and account for the following: (1) the nature of the court
system as an essential part of our tripartite system of government that performs constitutionally required
functions; (2) the constitutional rights of litigants and criminal defendants to access that system and to
protections within that system . . . ;and (3) the attorney‘s role in representing her client in that court system,
particularly in light of its American adversarial form.
See id. at 393.

29

in transactional and other situations where attorneys are invoking the protection of the law on
behalf of the client.
D. The First Amendment Is Inapplicable to Ubiquitous Regulation
Frederich Schauer argues that the First Amendment has been, and probably should
continue to be, simply inapplicable to the ―omnipresence‖ of regulation imposed on attorney
speech.101 While he notes the occasional ―outburst‖ of First Amendment application to areas of
attorney speech, he argues that in general, the doctrines and discourse of the First Amendment
have not been thought to apply to attorney speech.102 Schauer considers arguments in favor of
providing constitutional protection for attorney speech, including that the First Amendment
likely should apply in certain scenarios, for example to fulfill the First Amendment‘s purpose ―to
ensure that government, its officials, and its processes are subject to public criticism,‖ including
the judiciary.103 Yet Schauer contends that there are ―strong arguments for continuing to treat the
question of regulation of much of the speech of law as a policy rather than as a constitutional
question.‖104 When Schauer says that regulation of attorney speech should be treated as a matter
of ―policy‖ rather than constitutional law, the idea is that law makers—those entities regulating
attorneys—should be able to consider the policies at issue and determine whether or not to
impose a given restriction on attorney speech, and that they should be able to do so free from
First Amendment constraints.
Schauer argues that attorney speech should lack constitutional protection because speech
restrictions are necessary to protect our justice system, specifically, ―a criminal defendant‘s right

101

See Schauer, supra note 33, at 689–92.
See id.; see also id. at 694–95.
103
See id. at 697–98. I absolutely agree with Professor Schauer that attorney speech regarding the judiciary
should be protected by the First Amendment. See generally, Tarkington, The Truth Be Damned, supra note 24
(arguing that attorneys should be afforded constitutional protection for speech critical of the judiciary).
104
Schauer, supra note 33, at 698.
102

30

to a fair trial,‖ ―the integrity of the trial process,‖ courtroom order, and ―more particularly,
[protection] of the jury process.‖105 Schauer indicates that if attorney speech received protection
under the normal doctrines and discourse of the First Amendment, speech restrictions (such as
exclusionary rules or rules prohibiting communication with jurors) aimed at preserving these
essential features of our justice system could be unconstitutional. Further, Schauer argues, that
because these speech restrictions are essential to our justice system, they are ―inevitable,‖ and
thus, if the Constitution were deemed generally applicable to attorney speech, then the normal
doctrines and discourse of the First Amendment would have to be diluted to allow such
restrictions.106 Schauer fears that ―expanding the First Amendment into the process of lawspeech entails risks to the First Amendment itself, risks that may come from the dilution of
necessarily scarce First Amendment resources.‖107
IV. The Access-to-Justice Theory
A. Modeled after a Democratic Theory of the First Amendment
One of the major interpretations of the First Amendment views the protection of
democracy itself as the primary purpose of the Speech Clause. As explained by its initial
proponent, Alexander Meiklejohn, the purpose of the First Amendment is to protect the ability of
United States citizens to govern themselves.108 In his own words, ―[t]he First Amendment does
not protect a ‗freedom to speak.‘ It protects the freedom of those activities of thought and
communication by which we ‗govern.‘‖109 The central idea is that free speech is essential for
democracy to function. Free speech must exist so that all citizens can fully participate in the
105

Id. at 695; see also id. at 689–90, 693.
See id. at 698–700 (―[T]here remains the distinct possibility that the diluted tests that make the
inevitable constitutional are the same diluted tests that might make other forms of less-inevitable regulation
constitutional as well.‖ (Emphasis added.)).
107
See id. at 699.
108
See generally, MEIKLEJOHN, supra note 39.
109
Alexander Meiklejohn, The First Amendment is Absolute, 1961 SUP. CT. REV. 245, 252 (―The freedom
that the First Amendment protects is not, then, an absence of regulation. It is the presence of self government.‖).
106

31

privilege and responsibility of self-government. Meiklejohn stressed the idea of the social
contract of the Constitution, whereby ―We, the People of the United States‖ established a
government, and consequently, each citizen has the duty and privilege of participating in selfgovernment and also agrees to abide by the laws created thereby.110
Further, Meiklejohn contends that in a democracy, the people are the ultimate sovereigns:
―All constitutional authority to govern the people of the United States belongs to the people
themselves, acting as members of the corporate body politic.‖111 Through the constitutional
compact, the people delegated limited powers to ―subordinate agencies, such as the legislature,
the executive, [and] the judiciary.‖112 However, ―[t]he people do not delegate all their sovereign
powers.‖113 Consequently:
Public discussions of public issues, together with the spreading of information
and opinion bearing on those issues, must have a freedom unabridged by our
agents. Though they govern us, we, in a deeper sense, govern them. Over our
governing they have no power. Over their governing we have sovereign power.114
Thus, as Cass Sunstein has reiterated, ―the American tradition of free expression‖ and its
―extraordinary protection‖ for ―political speech can well be understood as an elaboration of the
distinctive American understanding of sovereignty.‖115 This is so, because ―[r]estrictions on
political speech have the distinctive feature of impairing the ordinary channels for political
change‖ and thus ―are especially dangerous.‖116 For ―if the government forecloses political
argument, the democratic corrective is unavailable‖117—the citizen loses its sovereignty over the
government. The overall point of view is summarized by Martin Redish and Abby Mollen,

110

MEIKLEJOHN, supra note 39, at 15.
Meiklejohn, supra note 109, at 253.
112
Id. at 254.
113
Id.
114
Id. at 257.
115
Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 257 (1992).
116
Id. at 306.
117
Id.
111

32

―democracy and free expression are inextricably intertwined in a symbiotic relationship.‖118
Because free speech is essential for democracy and popular sovereignty to function,
commentators, such as Meiklejohn, have argued that speech essential to self-government is
absolutely protected by the Free Speech Clause of the First Amendment.119 Although the
Supreme Court has not adopted Meikeljohn‘s theory in whole, it has been strongly influenced
thereby120 as seen in the protection afforded political speech as being at the ―core‖ of the First
Amendment,121 and in the Court‘s adoption of the ―actual malice‖ standard for the punishment of
allegedly defamatory speech regarding public officials in New York Times v. Sullivan and
progeny.122 The thrust of these Supreme Court decisions is that democracy cannot function
properly without free speech.

118

Martin H. Redish & Abby Marie Mollen, Understanding Post‘s and Meiklejohn‘s Mistakes: The Central
Role of Adversary Democracy in the Theory of Free Expression, 103 NORTHWESTERN U. L. REV. 1303, 1303 (2009).
119
See MEIKLEJOHN, supra note 39, at 46. Meiklejohn explains that ―[s]o long as [a citizen‘s] active words
are those of participation in public discussion and public decision of matters of public policy, the freedom of those
words may not be abridged.‖ See Meiklejohn, supra note 109, at 257. However, Meiklejohn does not contend that
the First Amendment as ―an unlimited license to talk,‖ but instead notes that ―there are many forms of
communication which, since they are not being used as activities of governing, are wholly outside the scope of the
First Amendment.‖ Id. at 258.
120
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 554
(1977) (―The most influential scholarly analysis of the First Amendment to be published since World War II is
Professor Alexander Meiklejohn‘s Free Speech and Its Relation to Self-Government‖).
121
See, e.g., Virginia v. Black, 538 U.S. 343, 365 (2003) (―Political speech, of course, is ‗at the core of
what the First Amendment is designed to protect.‘‖); Republican Party of Minn. v. White, 536 U.S. 765, 774–75
(2002) (holding that ―speech about the qualifications of candidates for public office‖ is ―‗at the core of our First
Amendment freedoms‘‖); McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334 (1995) (―Indeed, the speech in which
Mrs. McIntyre engaged—handing out leaflets in the advocacy of a politically controversial viewpoint—is the
essence of First Amendment expression.‖ (Emphasis added.)); Landmark Communications, Inc. v. Virginia, 435
U.S. 829 (1978) (―Whatever difference may exist about interpretations of the First Amendment, there is practically
universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental
affairs.‖ (internal citations omitted)).
122
See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); see also Garrison v. Louisiana, 379
U.S. 64, 74–75 (1964) ([S]peech concerning public affairs is more than self-expression; it is the essence of selfgovernment. (emphasis added)).
In Sullivan the Court held that a public official could not recover for libel unless the defendant acted with
actual malice, meaning that the defendant knew that the statement was false or acted with reckless disregard
regarding the truth or falsity of the statement. See Sullivan, 276 U.S. at 270; see also Garrison, 379 U.S. at 74–75
(―only those false statements made with the high degree of awareness of their probable falsity demanded by New
York Times may be the subject of either civil or criminal sanctions‖).

33

The legal academy has also been strongly influenced by Meiklejohn‘s work. Harry
Kalven, in commenting upon the Supreme Court‘s adoption of Meiklejohn‘s theory in Sullivan
explained:
This is not the whole meaning of the Amendment. There are other freedoms protected by
it. But at the center there is no doubt what speech is being protected and no doubt why it
is being protected. The theory of the freedom of speech clause was put right side up for
the first time.123
The Free Speech Clause is ―put right side up‖ because instead of investigating which exceptions
should be recognized as outside the scope of the amendment, Meiklejohn focused on identifying
the core protection and moving outward. Rather than examining the First Amendment solely at
the fringes, we start with understanding what is at its core.
B. A Free Speech Right Commensurate to Preserve our System of Justice
Just as citizen free speech is essential to the proper functioning of democracy, the accessto-justice theory posits that certain species of attorney speech are essential to the proper
functioning of our justice system. Thus, the core protection for attorney speech must be the
protection of attorney speech that is essential or key to the proper and constitutional functioning
of the United States justice system. As Monroe Freedman and Abbe Smith explain, the American
adversary system ―consists of a core of basic rights that recognize, and protect, the dignity of the
individual in a free society.‖124 Freedman and Smith elaborate that core rights such as ―personal
autonomy, the effective assistance of counsel, equal protection of the laws, trial by jury,‖ and
others are ―included in the broad and fundamental concept that no person may be deprived of
life, liberty, or property without due process of law—a concept which itself has been

123

Harry Kalven, The New York Times Case: A Note on ―The Central Meaning of the First Amendment,
1964 SUP. CT. REV. 191, 208.
124
FREEDMAN & SMITH, supra note 47, at 13.

34

substantially equated with the adversary system. An essential function of the adversary system
therefore, is to maintain a free society in which individual human rights are central.‖125
The access-to-justice theory proposes that where attorney speech is essential to providing
access to justice or providing the fair administration of the laws in our justice system, then it
deserves core First Amendment protection—akin to political speech. As indicated above, this
would include the ability of the attorney to assist individuals in invoking or avoiding the power
of government in securing individual or collective life, liberty, or property.
Just as the Supreme Court in Garrison v. Louisiana recognized that political speech ―was
more than self-expression‖ but constituted ―the essence of self-governance,‖126 so too attorney
speech—particularly speech made in her capacity as attorney on behalf of or to clients—is far
more than self-expression, and instead provides access to the invocation or avoidance of
government power. Thus, unlike the analogies to limited speech protection or the constitutional
conditions ideas discussed above, the access-to-justice theory places its primary protection on
attorney speech made in the capacity of attorney. Indeed, the protected core of attorney speech
should generally not be ―self-expression‖ in a normal sense of that word. Rather, the protected
core of attorney speech is representative and/or communicative by nature. Even attorneys
committed to a cause can only bring cases to courts involving real parties in interest who have
suffered a legally cognizable harm and hire the attorney to represent them.127 Attorney speech
creates effective access to the third branch of government, advises people regarding their rights
so that they can structure their conduct and protect their life, liberty, and property, and provides

125

Id. Freedman and Smith elaborate upon the constitutional core of rights protected through the American
justice system to help attorneys understand their professional duties to their clients. They conclude: ―[T]he
professional responsibilities of the lawyer, serving as counsel within our constitutionalized adversary system, must
be informed by the same civil libertarian values that are expressed in the Constitution.‖ See id.
126
See Garrison, 379 U.S. at 74–75.
127
See infra note 147 and accompanying text

35

access to law itself even outside of official court proceedings. It is this speech that constitutes the
core and essential role of attorneys in our system of justice and which deserves core protection
under the access-to-justice theory of the First Amendment.
In examining the constitutionality under the Free Speech Clause of any regulation or
punishment of attorney speech, the central question should be whether the speech being
restricted or punished is central to the attorney‘s role in our system of justice in providing access
to justice or the fair administration of the laws. While the contours of the theory and its realworld application require fuller development and exploration, there are certain categories of
attorney speech that should fall within this essential role that attorneys play in the American
justice system. These include: (1) the ability to invoke the protection of the law; (2) the ability to
provide legal advice about the lawfulness or unlawfulness of proposed or past client conduct; (3)
the ability to access courts and raise relevant and colorable legal and constitutional arguments in
judicial, administrative, and other government-sponsored proceedings that threaten citizen life,
liberty, or property; and (4) speech necessary to preserve the constitutional rights of individuals.
Such speech should be afforded core protection, in like manner to political speech, subject to
strict scrutiny.
1. The Power to Invoke the Protection of the Law
A key element to a proper understanding of the access to justice provided by lawyers
through their speech, is the lawyer‘s ability (through legal training and knowledge) to use speech
that will invoke the protection or power of the law. While the litigator provides this service as
well, it is the transactional attorney‘s very function to use speech that will have the force of law
and will protect her client‘s interests. The transactional attorney drafts documents that create
business organizations and contractual relationships, invoking the law‘s protection by complying

36

with legal requirements. Again, this ―speech‖ from the lawyer is calculated to have the force of
law and to preserve the client‘s life, liberty, or property or protect the client from future liability.
Examples include estate planning, creating business organizations, issuing securities, real estate
contracts, mergers and acquisitions, etc. In each instance a lawyer is called upon because the
lawyer has the requisite legal knowledge and training (1) to understand what is required to make
the speech legally binding on the parties; and (2) to understand how the speech will likely be
interpreted in the event of a dispute.
Lawyers thus serve an essential role in our system of justice by providing individuals
with the necessary language and process to invoke or avoid government power (including future
liability). Indeed, by forbidding such speech—even though allegedly only a restriction on
attorney speech—individuals would in large part be unable to invoke the law to protect their life,
liberty, or property.128 Thus attorney speech that invokes the protections of existing law is
essential to access to justice and the fair administration of the laws and deserves core Free
Speech Clause protection.
Holder v. Humanitarian Law Project exemplifies this category of speech. Humanitarian
Law Project concerns the constitutionality of the ―material support‖ provisions of the
Intelligence Reform and Terrorism Prevention Act (IRTPA)129 which make it a crime
(punishable by up to 15 years of imprisonment) to ―knowingly provide material support or

128

See Gideon v. Wainwright, 372 U.S. 335 (1963); see also Tarkington, Free Speech Right to Impugn,
supra note 24, at 419–22.
129
See 18 U.S.C. 2339A & 2339B. The prohibition on providing ―material support‖ to foreign terrorist
organizations was initially enacted in 1996 with the Anti-Terrorism and Effective Death Penalty Act, yet those
provisions did not clearly include within their scope attorney speech and advice. In 2001, as part of the USA
PATRIOT Act, 115 Stat. 377, Congress amendment the material support statute by additionally prohibiting ―expert
advice or assistance.‖ Finally, in IRTPA in 2004, Congress ―added the term ‗service‘ to the definition of ‗material
support or resources‘ and defined ‗training‘ to mean ‗instruction or teaching designed to impart a specific skill, as
opposed to general knowledge,‘‖ and ―also defined ‗expert advice or assistance to mean ‗advice or assistance
derived from scientific, technical or other specialized knowledge.‘‖ See Holder v. Humanitarian Law Project, 130
S.Ct. 2705, 2712, 2714–15 (2010); see also 18 U.S.C. § 2339A & 2339B.

37

resources‖130 to any group designated by the Secretary of State as a ―foreign terrorist
organization [FTO].‖131 As defined in the statute, providing material support or resources
includes ―any . . . service . . . training . . . expert advice or assistance . . . [and] personnel.‖ The
plaintiffs, all of whom are United States citizens or organizations,132 instituted a pre-enforcement
challenge to the constitutionality of the ―material support‖ law because they had been previously
engaged in providing legal assistance to two such FTOs: namely, the Partiya Karkeran Kurdistan
(PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both of which are devoted to
establishing independent states, for Kurds in Turkey and for Tamils in Sri Lanka, respectively.
The types of activities with which the Humanitarian Law Project wished to help the PKK and
LTTE included providing legal advice ―on how to use humanitarian and international law to
peacefully resolve disputes‖133; teaching organization members ―how to petition various
representative bodies‖ for relief, including the United Nations and the United States Congress;134
advising the groups on how to obtain recognition under the Geneva Conventions,135 and
providing other ―political advocacy‖136—―advocacy of peaceful means of achieving the goals of
these groups.‖137 There was no question that ―[t]he Humanitarian Law Project has no interest in
130

18 U.S.C. § 2339B.
See 8 U.S.C. § 1189.
132
See Humanitarian Law Project, 130 S.Ct. at 2731.
133
See id. at 2716.
134
See id. (stating that plaintiffs wished to teach FTOs ―how to petition various representative bodies such
as the United Nations‖); see id. at 2732 (Breyer, J., dissenting) (noting that plaintiffs wanted to petition the United
States Congress).
135
See id. at 2739 (Breyer, J., dissenting) (noting that declarations below showed that the ―relief‖ sought
would not be monetary, but would include seeking ―recognition under the Geneva Conventions.‖).
136
The Humanitarian Law Project majority held that they could not tell what ―political advocacy‖ included
and so they could not address the plaintiff‘s pre-enforcement challenge regarding engaging in ―political advocacy‖
on behalf of the PKK and LTTE. See Humanitarian Law Project, 130 S.Ct. at 2729. However, as noted by the
dissent, the majority should have remanded to the lower court to consider the precise activities ―relating to
‗advocating‘ for the organizations‘ peaceful causes.‖ See id. at 2742–43 (Breyer, J., dissenting). Further, Justice
Breyer contends that ―the majority is wrong about the lack of specificity. The record contains complaints and
affidavits, which describe in detail the forms of advocacy these groups have previously engaged in and in which
they would like to continue to engage.‖ See id. (Breyer, J., dissenting).
137
See Holder v. Humanitarian Law Project, Nos. 08-1498, 09-89, Oral Arg. Trans. at 46 (Feb. 23, 2010)
(Ginsburg, J., clarifying).
131

38

furthering terrorism‖ or the illegal activities of any of the FTOs; but instead wanted to protect the
human rights of members of such organizations and to help and encourage such organizations to
―disavow violence and engage in lawful peaceful means of resolving their disputes.‖138
The Court held that the statute clearly prohibited the plaintiff‘s proposed speech,139 and
that such a prohibition did not violate the First Amendment‘s Free Speech or Free Association
Clauses. The determining factor for the Court was that ―[t]he statute does not prohibit
independent advocacy or expression of any kind.‖140 According to the Court, ―plaintiffs may say
anything they wish on any topic‖141 and ―Congress has not, therefore, sought to suppress ideas or
opinions in the form of ‗pure political speech.‘‖142 Rather, the statute prohibits solely speech
performed ―in coordination with or at the direction of‖ an FTO.143 Notably, the words ―in
coordination with‖ are not found in the statute.144 Apparently, the Court saw its construction of

138

See id. at 22.
Indeed, the Humanitarian Law Project Court held that the plaintiffs‘ vagueness challenge failed
because, while the statute may be vague as applied to the activities of others, ―the statutory terms are clear in their
application to plaintiffs proposed conduct.‖ See Humanitarian Law Project, 130 S.Ct. at 2709.
140
See id., at 2722–23.
141
Id.
142
Id.
143
See Humanitarian Law Project at 19 & 21; see also id. at 31 (―[M]ost importantly, Congress has
avoided any activities not directed to, coordinated with, or controlled by foreign terrorist group‖ (emphasis added)).
144
The prohibition on activities done ―in coordination with‖ an FTO is not in the statute. The statute
explains that the prohibition on providing ―personnel‖ to FTOs is limited to prohibiting
1 or more individuals (who may be or include himself) to work under that terrorist organization‘s
direction or control or to organize manage, supervise, or otherwise direct the operation of that
organization. Individuals who act entirely independently of the foreign terrorist organization to advance its
goals or objectives shall not be considered to be working under the foreign terrorist organization‘s direction
and control.
See 18 U.S.C. § 2339B(h) (emphasis added). The Court in Humanitarian Law Project interpreted this provision to
prohibit providing ―personnel‖ who work or ―services‖ made ―in coordination with or at the direction of‖ the FTO.
See Humanitarian Law Project, 130 S.Ct. at 2721–22; see also id. at 2722–23 (stating that ―Congress has avoided
any activities not directed to, coordinated with, or controlled by foreign terrorist group‖). From the language of §
2339B(h) regarding ―personnel,‖ the additional prohibition added by excluding people who work ―in coordination
with‖ (rather than solely ―under the [FTO‘s] direction or control‖ as stated in the statute) can possibly be inferred
from the second sentence of § 2339B(h), which explains that individuals are allowed to ―act entirely independently.‖
See 18 U.S.C. § 2339B(h). But such an interpretation was not inevitable, and the Court‘s interpretation may in fact
prohibit more speech and conduct than Congress even intended.
Further, the addition of the ―in coordination with or at the direction of‖ gloss onto ―service‖ has no place in
the statute, but is based on the Court‘s insistence that ―service‖ implies work done ―in coordination‖ with another.
139

39

the statute as ―fixing‖ any constitutional problem because the statute would ―cover only a narrow
category of speech to, under the direction of, or in coordination with‖ FTOs and thus Congress
did not ―suppress . . . ‗pure political speech.‘‖145 Justice Breyer in dissent argued that ―the simple
fact of ‗coordination‘ alone cannot readily remove protection that the First Amendment would
otherwise grant,‖ particularly because ―[t]hat amendment, after all also protects the freedom of
association.‖146
Yet the most poignant problem with the Court‘s distinction—which neither the majority
nor the dissent seemed to appreciate—arises from the fact that the constitutionality of the
restriction was being challenged as applied to attorney speech. However unworkable a
prohibition against speech ―directed to, coordinated with, or controlled by‖ certain organizations
may be for the public at large, it is distinctively and acutely problematic for attorney speech. The
essence of the role of the attorney is to speak in coordination with and on behalf of clients.
Attorneys, when acting as attorneys, do not speak for themselves or independently. It is nearly
absurd to say that an attorney‘s speech has not been abridged because the attorney is ―only‖
prohibited from speaking ―in coordination with or at the direction of‖ their desired clientele. The
Indeed, the Court cites to Webster‘s Third New International Dictionary to support its interpretation. See
Humanitarian Law Project, 130 S. Ct. at 2721.
The Court appears to have adopted the ―in coordination with‖ gloss onto ―service‖ and ―personnel‖ from
the Government‘s brief. See Holder v. Humanitarian Law Project, Brief of Respondents, 2009 WL 4951303, at *45
(arguing that petitioners violate the statute because they want to ―engage in certain activities in coordination with, or
under the direction or control of, groups that they know have been designated as terrorist organizations or have
engaged in terrorist activity‖(emphasis added)); id. at *37(―[b]ecause those proposed coordinated activities clearly
fall within the statutory definition of ‗personnel‘‖(emphasis added)); id. at 41–42 (―they want to render benefit
directly to those groups by coordinating their actions‖ and thus ―Petitioners' proposed conduct therefore falls
squarely within the term ‗service‘ on any interpretation‖(second emphasis added).
Even without such glosses on the prohibitions of ―service‖ and ―personnel,‖ the plaintiffs‘ proposed
activities (and likely all legal services) would probably come within the prohibitions on providing ―expert advice or
assistance.‖ Indeed, the Court noted that ―plaintiffs‘ activities also fall comfortably within the scope ‗expert advice
or assistance.‘‖ See id. at 2720.
145
See Humanitarian Law Project, 130 S.Ct. at 2722–23; see also id. at 2728 (listing reasons why Court
concludes statute constitutional, namely that number of FTOs are limited, that Congress added clarity to the statute,
Congress excluded religious and medical support, and ―most importantly, Congress has avoided any restriction on
independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist
groups‖).
146
See Humanitarian Law Project, 2732–33 (Breyer, J., dissenting).

40

attorney‘s very role is to speak on behalf of someone else; to invoke the law for someone else; to
provide legal advice to someone else on how to act or invoke the law, to raise arguments and
claims in court proceedings for someone else. Indeed, the attorney cannot fulfill any of these
functions without speaking to and in coordination with the client. All of the essential aspects of
attorney speech identified in this article are thwarted by such a restriction. In fact, attorneys
generally cannot invoke the protections of the law for non-clients or act on behalf of nonclients.147
The statute prohibits (and is aimed at prohibiting) attorney speech that is politically and
legally effective. The Humanitarian Law Project Court purports to allow the attorneys to ―say
anything they wish on any topic,‖148 and, yet, at the same time forbids them from speaking as
attorneys to assist others by providing legal advice or access to international human rights law.
For example, as noted by the dissent, the Humanitarian Law Project wanted to help these groups
resolve disputes peacefully and petition the United Nations for recognition under the Geneva
Conventions.149 The plaintiffs cannot perform either of these functions by speaking
―independently.‖ They must coordinate with the FTOs for their speech to be effective. Thus the
plaintiffs cannot ―say anything they wish‖ because they are deprived of speaking in the manner
and context in which the speech will effectively create desired legal and political results. Speech
loses its value if it can be prohibited in the context in which it matters. As the Supreme Court

147

As summarized by Richard Freer and Wendy Perdue, ―Our system does not allow everyone who is irked
about something to bring a suit.‖ See RICHARD D. FREER & WENDY COLLINS PERDUE, CIVIL PROCEDURE: CASES,
MATERIALS AND QUESTIONS 642 (5th ed. 2007). To properly challenge government (or private) action through court
processes, a litigant must generally be a real party in interest and satisfy the justiciability requirements, including
standing to sue and the existence of a ripe, non-moot controversy. See, e.g., FED. R. CIV. P. 17; ERWIN
CHEMERINSKY, FEDERAL JURISDICTION § 2.1 (5th Ed. 2007).
Outside of court processes, an attorney obviously cannot advise clients or invoke the law on behalf of
clients without coordination or discussion with the proposed client.
148
Humanitarian Law Project, 130 S.Ct. at 2722–23.
149
See id. at 1738–39 (Breyer, J., dissenting).

41

itself has explained: ―Urgent, important, and effective speech can be no less protected than
impotent speech, lest the right to speak be relegated to those instances when it is least needed.‖150
Further, the Court‘s claim in Humanitarian Law Project that Congress can limit attorney
speech made ―in coordination with‖ specific undesirable groups, and somehow avoid
―suppressing . . . political speech‖ is entirely fallacious. The elimination of a group‘s access to
lawyer speech, including lawyer advice and lawyer direction on invoking and avoiding
government power, suppresses that group‘s very ability to play a role in politics, or even exist. It
denies the group an effective political voice. Attorney aid and assistance is necessary for the
FTO‘s political voice to be effective—for them to invoke the protections of the law and properly
petition the United Nations and Congress. Indeed, the majority‘s discussion regarding the
government‘s interests being served by restricting attorney speech underscores that what is
suppressed is pure political speech. The Court argues that even peaceful legal assistance for
lawful ends of the type offered by the plaintiffs can be criminalized because such assistance
―serves to legitimize‖ the group.151 Repeatedly, the Court notes that the plaintiff attorneys‘
speech ―importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it
easier for those groups to persist.‖152 It is quite clear that the purpose of the statute is to destroy
any such organization, which is accomplished in part by denying them legal advice and access to
the law.153
The ends of the statute are achieved by prohibiting attorneys from providing designated
people with access to the power of the law—even international human rights law through
150

McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 347 (1995) (emphasis added). Indeed, rather than
lessening the protection provided, the McIntyre Court recognized that the urgency, importance, and effectiveness of
speech ―only strengthens the protection afforded to [the] expression.‖ See id.(emphasis added).
151
See Humanitarian Law Project, 130 S.Ct. at 2725.
152
See id.
153
As summarized by Justice Scalia: ―The end that Congress seeks to proscribe is the existence of these
terrorist organizations.‖ Holder v. Humanitarian Law Project, Nos. 08-1498, 09-89, Oral Arg. Trans. at 17 (Feb. 23,
2010). See also id. at 34, 39–40 (statements of Solicitor General).

42

international entities such as the United Nations. Notably, the FTOs themselves are not forbidden
(and Congress lacks the ability to forbid them) from seeking the protections of international law.
Rather, the goal of denying access to the law for these groups—even for peaceful and legitimate
purposes—is accomplished by restricting speech of United States citizen attorneys. The
threatened punishment for the attorney is severe enough that the scheme works. As stated by the
lawyer for Humanitarian Law Project: ―The government has spent a decade arguing that our
clients cannot advocate for peace, cannot inform about international human rights.‖154 ―We think
it‘s our right, but we‘re not going to risk going to jail for 15 years to do it.‖155
In fact, Humanitarian Law Project is not the only time in United States history that
government has attempted to thwart a group by prohibiting attorneys from informing people
about their legal rights and how to invoke the law‘s protection. In NAACP v. Button, Virginia
attempted to obstruct desegregation by re-defining prohibited attorney solicitation to include the
methods used by NAACP lawyers to inform African Americans about their rights and urge them
to take legal action. The NAACP generally invited African-American parents and children to a
meeting where a lawyer would explain to them ―the legal steps necessary to achieve
desegregation.‖156 The lawyers would then bring forms ―to authorize . . . NAACP or Defense
Fund attorneys . . . to represent the signers in legal proceedings to achieve desegregation.‖157
After the Supreme Court decided Brown v. Board of Education,158 the Virginia legislature (along
with the legislatures of Arkansas, Florida, Georgia, Mississippi, South Carolina, and

154

See id. at 60.
Id.
156
NAACP v. Button, 371 U.S. 415, 421 (1963).
157
See id.
158
347 U.S. 483 (1954).
155

43

Tennessee159) enacted legislation that changed their barratry statutes to include (and thus
prohibit) ―attorneys paid by an organization such as the NAACP and representing litigants
without charge.‖160 The restrictions were aimed at frustrating the NAACP‘s ability to effectively
invoke the power of the law to bring about desegregation.161 The Virginia Supreme Court of
Appeals upheld the constitutionality of the new barratry law and held that the NAACP‘s
activities were prohibited thereby. The Supreme Court reversed and held that the NAACP‘s
activities constituted ―expression and association protected by the First and Fourteenth
Amendments which Virginia may not prohibit under its power to regulate the legal
profession.‖162 The Supreme Court eloquently explained that ―abstract discussion is not the only
species of communication which the Constitution protects; the First Amendment also protects
vigorous advocacy, certainly of lawful ends, against governmental intrusion.‖163 Thus, the Court
noted that for the NAACP, litigation ―is a means for achieving the lawful objectives of equality
of treatment by all government, federal, state and local, for the members of the Negro
community in this country. It is thus a form of political expression.‖164
As in Humanitarian Law Project, the legislative enactment in Button only purported to
restrict attorney speech that would inform others about their rights, tell others how to invoke the
law, and offer them legal assistance. In theory, individual non-lawyer African Americans could
still pursue these ends on their own. Further, attorneys for the NAACP could still independently
―say‖ anything they wanted. They were only prohibited from speech made to potential clients
159

Button, 371 U.S. at 445 (Douglas, J., concurring) (writing separated to note the ―discriminatory nature‖
of the Virginia law and its ―legislative purpose to penalize the NAACP because it promotes desegregation of the
races.‖)
160
See Button, 371 U.S. at 445 (Douglas, J., concurring).
161
As discussed in Justice Douglas‘s concurrence, the laws were ―enacted as part[] of the general plan of
massive resistance to the integration of schools of the state under the Supreme Court‘s decrees.‖ See id. (internal
citations omitted).
162
See Button, 371 U.S. at 428–29.
163
See id. at 429 (emphasis added).
164
See id.(emphasis added).

44

informing them about their rights and securing them as clients. As in Humanitarian Law Project,
the law in Button ―only‖ separated attorneys from their desired clientele. Importantly, this
separation was aimed at defeating, and would in fact defeat, desegregation in large part. The
NAACP could not bring litigation themselves without clients—they couldn‘t act on behalf of
non-clients. The only way for the NAACP to secure the rights of African Americans—to engage
in the NAACP‘s desired political advocacy—was to act in concert with and on behalf of clients.
Thus the Supreme Court determined that the statute abridged the attorneys‘ ―right to engage in
political expression and association.‖165
Obviously the NAACP‘s proposed clientele was quite different from the FTOs in
Humanitarian Law Project. The NAACP wanted to represent American citizens and help them
obtain constitutionally-required equality, while the Humanitarian Law Project wants to represent
certain militant organizations accused of violently attacking American citizens or their allies and
teach them how to invoke international law to resolve their disputes peacefully, invoke their own
human rights and the protections of the Geneva Conventions. Despite the difference in clientele,
the underlying theory of the Virginia law and IRTPA are not very far apart: if attorneys can be
prohibited from informing and helping others invoke the law‘s protections, then, in large part,
the law‘s protections will never be successfully invoked. The legislature is able to make the law
inapplicable to a certain unpopular group not by changing the underlying legal rights of the
group, but by prohibiting attorneys from speaking to the group and telling them how or helping
them to invoke the law‘s protections. In both scenarios, the attorneys are only pursuing ―lawful
objectives‖ and peaceful conduct on behalf of their proposed clientele. Moreover, in both
scenarios, there is no punishment imposed against the unpopular group for trying to invoke the

165

See id. at 431; see also id. at 442 (explaining that the NAACP attorneys ―employ[] constitutionally
privileged means of expression to secure constitutionally guaranteed civil rights‖ (emphasis added)).

45

law in their favor, but there are severe punishments imposed on any attorney who helps invoke
the law on behalf of that group. In both Button and Humanitarian Law Project, helping a group
invoke the law could subject the attorney to criminal prosecution: In Button, the threatened
punishment was a fine of $100 to $500 plus imprisonment for one to six months;166 in
Humanitarian Law Project, the threatened punishment is a fine and/or imprisonment for up to
fifteen years.167
The question under the access-to-justice theory is whether attorney speech invoking the
law‘s protections on behalf of clients falls within the essential role that attorneys play in access
to justice and the fair administration of the laws. As shown above, it does. Indeed, such speech
constitutes access to justice and the fair administration of the laws. It is speech central to the
special role that attorneys play in invoking and avoiding government power by securing
individual or collective life, liberty, and property.168
Geoffrey Stone has commented that attorneys ―play and have played, a critical role in
opposing, and sometimes, moderating‖ abuses to civil liberties, particularly during times of war
or conflict.169 Stone puts the historical Shakespeare quote, ―The first thing we do, let‘s kill all the
lawyers,‖ in its literary and historical context—the reason the lawyers needed to be killed was to
make it possible for conspirators to ―destroy the rights and liberties of the English people.‖170
Indeed, in the lines immediately following this statement, the conspirators demonstrate their
intent to deprive citizens of life and liberty when they unjustly put to death the Clerk of Chatham
for being able to write his name.171
166

See Button, 371 U.S. at 423 n.7.
See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2712, n. 1 (2010).
168
See supra Part II.
169
Geoffrey Stone, A Lawyer‘s Responsibility: Protecting Civil Liberties in Wartime, 22 WASH. U. J. L. &
POL‘Y 47, 53 (2006).
170
Id. at 47.
171
WILLIAM SHAKESPEARE, THE SECOND PART OF HENRY THE SIXTH, Act IV, Scene 2, Lines 81-114.
167

46

But an alternate to ―killing‖ lawyers could be accomplished through the abridgment of
attorney speech in such a way to inhibit or block the attorneys‘ ability to fulfill their function in
invoking the law to preserve rights to life, liberty, and property. While initially sounding extreme
and unlikely, Humanitarian Law Project illustrates that one way to destroy an undesirable group
is to restrict lawyers from providing speech that assists the group from pursuing even lawful and
peaceful ends. The purpose of the restriction is to eliminate the organization.172 But this purpose
is accomplished not by directly denying the organization access to law, but by prohibiting
attorneys from speaking—specifically from assisting the organization in invoking either
domestic or international law. The organization is killed by ―kill[ing] [] the lawyers.‖ Regulation
of attorney speech is used to destroy the organization through keeping the organization from
being able to effectively invoke or avoid the power of government.
In Free Speech and its Relation to Self-Government, Meiklejohn eloquently poses the
problem: ―If the legislature has both the right and the duty to prevent certain evils, then
apparently it follows that the legislature must be authorized to take whatever action is needed for
the preventing of those evils.‖173 Certainly terrorism is an evil that threatens the United States—
can Congress then ―take whatever action is needed‖ to prevent that evil? Meiklejohn explains
that ―our plan of government by limited powers forbids that that inference be drawn.‖174 Rather:
The Bill of Rights . . . lists, one after the other, forms of action which, however useful
they might be in the service of the general welfare, the legislature is forbidden to take.
And that being true, the ‗right to prevent evils‘ does not give unqualifiedly the right to
prevent evils. In the judgment of the Constitution, some preventions are more evil than
are the evils from which they would save us. And the First Amendment is a case in point.
If that amendment means anything, it means that certain substantive evils which, in
principle, Congress has a right to prevent, must be endured if the only way of avoiding

172

See supra notes 151–53 & accompanying text.
See MEIKLEJOHN, supra note 39, at 48.
174
Id.
173

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them is by the abridging of that freedom of speech upon which the entire structure of our
free institutions rests.175
While Meiklejohn‘s words are aimed at citizen free speech and its relationship to democracy; the
same could be said of attorney free speech and its relationship to our system of justice. The
fairness of our entire system of justice depends on freedom of attorney speech—specifically, that
attorney speech that provides people with access to justice in invoking and avoiding the power of
government. Consequently, under the access-to-justice theory of the First Amendment, attorney
speech that invokes on behalf of clients (or informs clients how to invoke) the law‘s protection is
entitled to core protection.
2. The Ability to Provide Legal Advice Regarding Client Conduct
One of the traditional and essential roles that attorneys play in the American justice
system is providing advice to clients about the lawfulness or unlawfulness of proposed or past
conduct. Indeed, such advice is protected by perhaps the most enduring and protective of
privileges recognized by law: the attorney-client privilege.
The purpose of the attorney-client privilege is often regarded as the need for full and
frank communication from the client to the attorney so the attorney will know how to best serve
the client‘s needs.176 This purpose even has constitutional underpinnings found in the Fifth
Amendment right against self-incrimination—the government should not be able to obtain from
an attorney what they constitutionally are unable to obtain from the client.177 However, the
purpose of the privilege is not solely to allow the client to fully and frankly communicate with
the lawyer, but it is equally essential in the fair administration of the laws for the attorney to be
able to fully and frankly advise the client, particularly regarding the lawfulness or unlawfulness

175

Id.
See, e.g., Upjohn v. United States, 449 U.S. 383, 389 (1981).
177
See FREEDMAN & SMITH, supra note 47, at 186–90; MORGAN, supra note 18, at 57 n. 137.
176

48

of proposed or past conduct. Thus, as explained by the U.S. Supreme Court, the purpose of the
privilege ―is to encourage full and frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of law and administration of
justice.‖178
Thus it is not just full and frank disclosure by the client that is essential, but full and
frank communication on the part of both the attorney and the client. 179 The ability of the client to
obtain full and frank advice from an attorney is essential, again, to help individuals invoke or
avoid the power of the government. When a person consults an attorney about proposed
conduct—whether in a transactional context, criminal context, or civil liability context—the
attorney serves an important legitimizing and fairness function for governmental civil and
criminal power that deprives individuals of life, liberty, and property. Just as the client should be
able to fully and frankly explain the facts to the attorney, the attorney should likewise be able to
fully and frankly explain the contours of the law, its purpose and function, and the potential for
and extent of liability or criminal sanctions for violations thereof. As recognized in Model Rule
of Professional Conduct 1.2(d), lawyers should ―discuss the legal consequences of any proposed
course of conduct with a client‖ and may ―counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.‖180 The ability of the individual
to obtain such advice and interpretation of law before acting (or even after acting in order to
determine the potential scope of liability or other consequences of violation) improves the
178

Upjohn, 449 U.S. at 389.
The Restatement of the Law Governing Lawyers explains why the focus of the case law has been on the
client‘s ability to provide full and frank communication. The vast majority of cases dealing with attorney-client
privilege deal with situations where the attorney is being compelled to reveal a client confidence. Thus, ―[t]he
rationale based on the social desirability of encouraging communication by the lawyer to the client is a minor theme
in the decisions, probably because it is typically relevant only in cases dealing with the narrow question of the
application of the privilege to a lawyer‘s communication to a client.‖ RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 68 cmt. c (2000).
180
See MODEL RULE OF PROF‘L CONDUCT 1.2(d). However, Rule 1.2(d) prohibits a lawyer from engaging
or assisting a client in engaging ―in conduct that the lawyer knows is criminal or fraudulent.‖ See id.
179

49

fairness of government-imposed liability and sanctions, which in turn improves the legitimacy of
our entire system of justice. Part of ―keeping sound and wholesome the procedure by which
society visits its condemnation on an erring member‖181 must include fair notice and warning
through the ability of the ―erring member‖ to obtain assistance in understanding the potential
―condemnation‖ they may receive for their actions and thus to help them structure their conduct
in such a way to avoid such criminal and civil government-backed condemnation.
In fact, one of the premises underlying the attorney-client privilege is that ―vindicating
rights and complying with obligations under the law and under modern legal processes are
matters often too complex and uncertain for a person untrained in the law, so that clients need to
consult lawyers.‖182 If this assumption is true, justice and fairness require that a person be able to
consult with an attorney regarding the reach and extent of the law. As the New York Court of
Appeals has explained, the privilege is intended to ―foster uninhibited dialogue between lawyers
and clients in their professional engagements, thereby ultimately promoting the administration of
justice.‖183 Gregory Sisk has recently argued that by protecting the attorney-client ―dialogue
from outside intrusion,‖ the privilege allows ―lawyers and clients to engage with difficult
problems by considering the full spectrum of legal and moral dimensions‖ and thus ―also
promotes the public interest in obedience to the rule of law and advancement of the common
good.‖184
Certainly large segments of the population lack access to such legal advice, yet that
problem does not undermine the importance of the availability of such access to as many people
181

See FREEDMAN & SMITH, supra note 47, at 18 (quoting Fuller, The Adversary System, in TALKS ON
AMERICAN LAW 35 (H. Berman ed., 1960)).
182
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68(c) (2000).
183
Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 705 (N.Y. 1989); see also RESTATEMENT (THIRD)
OF THE LAW GOVERNING LAWYERS § 68(c) (2000) (―It is assumed that, in the absence of such frank and full
discussion between client and lawyer, adequate legal assistance cannot be realized.‖(Emphasis added.)).
184
Gregory C. Sisk, The Dynamic Attorney-Client Privilege, 23 GEO. J. LEGAL ETHICS 201, 217 (2010).

50

who can either pay for it or otherwise obtain it. The key point is that the ability of attorneys to
provide such advice is an essential part of our system of justice in promoting the fair
administration of the laws and, thus, should be protected from government restriction and
interference.
Nevertheless, while the existing attorney-client privilege serves to protect
communications from compelled disclosure, it does not protect attorney advice from regulation
or restriction. Again, Humanitarian Law Project and Milavetz are cases in point. In Milavetz,
Congress forbad attorneys (and others falling within the rubric of ―debt relief agencies‖) from
advising clients to incur debt in contemplation of bankruptcy.185 The law appeared to forbid
attorneys from even advising clients regarding lawful conduct—such as selling a home and
entering into a lease (which would be a new debt obligation).186 The debtor herself was not
prohibited from undertaking new debt obligations under the law, but the attorney was prohibited
from advising a client that they could lawfully incur such a debt. The Supreme Court in large
part avoided the problem by interpreting the statute in such a way that the attorney was only
prohibited from providing particular advice that would abuse the bankruptcy system.187 The
Court acknowledged that without this narrowing interpretation, the statute ―would seriously
undermine the attorney-client relationship‖188 through its ―inhibition of frank discussion.‖189
Notably, the Milavetz Court strove to preserve the attorney-client relationship by
narrowly interpreting the statute, and not through application of the First Amendment. Indeed, no
185

Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324, 1330–31 (2010).
Indeed, this was how the Eighth Circuit had interpreted the statute, as ―‗broadly prohibit[ing] a debt
relief agency from advising an assisted person . . . to incur any additional debt when the assisted person is
contemplating bankruptcy,‘ even when that advice constitute[d] prudent [and legal] prebankruptcy planning not
intended to abuse the bankruptcy laws.‖ See id. at 1331.
187
The Court specifically held that the statute ―prohibits a debt relief agency only from advising a debtor to
incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose.‖ See id. at 1336–38 &
n.6.
188
See id. at 1338 n. 5.
189
See id. at 1338.
186

51

First Amendment doctrine or theory accounted for the fact that the restriction frustrated the
essential role of attorneys in the fair administration of justice. Rather, the best argument available
was that the statute was vague—and not only vague for attorneys, but vague as applied to
anyone.190 Vagueness was similarly one of the primary challenges used in the Humanitarian Law
Project case. The important point is that no First Amendment doctrine was presented, in either
case, that could effectively recognize and preserve the attorney-client relationship.
Unlike its Milavetz decision, the Humanitarian Law Project Court did not interpret the
statute in such a way as to avoid the frustration of the attorney-client relationship. In fact, the
Court specifically noted that under its interpretation, the statute ―barred‖ plaintiffs from
―speak[ing] to the PKK and LTTE‖ if their ―speech to those groups imparts a ‗specific skill‘ or
communicates advice derived from ‗specialized knowledge‘—for example, training on the use of
international law or advice on petitioning the United Nations.‖191 Thus, in Humanitarian Law
Project, the law not only prohibits attorney invocation of the law on behalf of clients, but also
the provision of any legal advice to groups designated as foreign terrorist organizations. As
noted, the goal of the statute is eradication of the group—and in pursuit of that goal, the statute
forbids attorneys from advising members of the group regarding the contours and reach of the
law, how to begin acting in a lawful manner, how to petition our own United States government
(to perhaps change its policy about specific groups), and how to seek international assistance
from the United Nations and under the Geneva Conventions. As noted by the dissent, not only
did the Humanitarian Law Project plaintiffs want to advise the FTOs regarding international
law, but also to advocate on their behalf ―in this country directed to our government and its

190

Milavetz, Gallop & Milavetz v. United States, Nos. 08-119, 08-1225, Oral Arg. Trans. at 20 (Dec. 1,
2009) (―[D]on‘t bring in the fact that, well, and moreover, if it‘s applied to attorneys, it‘s unconstitutional . . .
[b]ecause if it‘s applied to anybody it‘s unconstitutional, according to your [vagueness] argument.‖) (Scalia, J.)
191
Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2723–24 (2010).

52

policies.‖192 The government‘s goal is to eradicate these groups, and yet the statute forbids
attorneys from providing their legal expertise to these groups on how to change their methods
and act lawfully and peacefully, on how to petition our government to avoid eradication, or even
how to petition the United Nations for human rights relief and recognition under the Geneva
Conventions.
The Humanitarian Law Project Court emphasized that it would ―legitimize‖ the FTOs if
they received such lawful, peaceful advice (and from this the Court concluded that Congress
constitutionally could criminalize giving such advice). But what would truly be ―legitimized‖ by
allowing attorneys free speech to provide such advice to designated FTOs is our own
government‘s policies, power, and commitment to justice. The Court allows our government
first, to enact a policy of destroying particular groups, and then on top of that allows the
government to threaten citizen attorneys with imprisonment if they provide the targeted group
with any legal advice—even legal advice on how to change their conduct, how to act peacefully
and lawfully, or how to obtain human rights relief. While the Court explains that it does ―not
suggest that Congress could extend the same prohibition on material support at issue here to
domestic organizations,‖ the Court‘s analysis does not rely on that distinction.193 Rather, the
Court relies on the superficial distinction that the plaintiffs can independently say whatever they
want, they just cannot speak to or in coordination with the FTOs.194

192

See id. at 2732 (Breyer, J., dissenting).
See Humanitarian Law Project, 130 S.Ct. at.2730.
194
See id. at 2722–24 (concluding that the statute does not abridge ―pure political speech‖ because
plaintiffs are only prohibited from coordinated speech with FTOs and so can independently say whatever they wish);
id. at 2728 (listing reasons why Court concludes statute constitutional, namely that number of FTOs are limited, that
Congress added clarity to the statute, Congress excluded religious and medical support, and ―most importantly,
Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated
with, or controlled by foreign terrorist groups‖).
The Court fails to identify the scrutiny that it is applying in analyzing the constitutionality of the statute.
The Court says that it need not apply strict scrutiny because only coordinated speech is prohibited, see id., but then
says that the First Amendment test for analyzing restrictions on conduct found in United States v. O‘Brien, 391 U.S.
193

53

An important aspect of Humanitarian Law Project that deserves serious contemplation
and examination is the Court‘s consideration of attorney speech to or on behalf of FTOs as
involving a greater association (and thus one that can be criminalized) than membership in the
FTO (which the Court agrees could not constitutionally be forbidden under the First Amendment
right to free association).195 The Court holds that plaintiffs are doing more than being mere
members, because they are ―providing material support‖196 to the FTOs through legal advice, and
thus their actions can constitutionally be criminalized consistent with the First and Fifth
Amendments. This holding is particularly troubling in light of the attorney‘s role in the
administration of justice and the attorney‘s duty to take on legal causes and provide access to
justice even for unpopular clients.197
The ―material support‖ statute in Humanitarian Law Project not only frustrates the
attorney-client relationship (as did the law in Milavetz), but in fact criminalizes the attorneyclient relationship and imputes culpability for the unlawful conduct of the client onto the attorney
who advises her. As with red scare statutes aimed at eradicating communism, the ―material
support‖ statute as applied to the Humanitarian Law Project plaintiffs can be said to ―quite

367 (1968), is inapplicable and ―a more demanding standard‖ should be used. See Humanitarian Law Project, 130
S.Ct. at 2723–24. Yet, the Court from there just defers to the government‘s generalized claims of harm with very
little concrete evidence of either harm or tailoring, including specificity on how the plaintiff‘s conduct could cause
that harm. See id. at 2724–30; see also infra note 202.
195
See id. at 2718 & 2730.
196
See id. at 2718 (‖Section 2339B does not criminalize mere membership in a designated foreign terrorist
organization. It instead prohibits providing ‗material support‘ to such a group.‖); see also id. at 2730 (explaining that
―the statute does not penalize mere association with a foreign terrorist organization,‖ because ―[t]he statute does not
prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals
of the group‖ but instead ―prohibits [] the act of giving material support‖ which is what ―Plaintiffs want to do‖ and
so concluding that ―[o]ur decisions scrutinizing penalties on simple association or assembly are therefore
inapposite‖(emphasis added)).
197
See, e.g., MODEL RULE OF PROF‘L CONDUCT 6.2, cmt. 1 (―All lawyers have a responsibility to assist in
providing pro bono publico service. . . . An individual lawyer fulfills this responsibility by accepting a fair share of
unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve
unpopular clients . . . .‖ (Emphasis added.)).

54

literally establish[] guilt by association alone,‖198 because it criminalizes association even if the
associating attorney ―disagree[s] with th[e] unlawful aims‖199 of the FTO. Reliance on the
government‘s war power does not change this principle: ―Even the war power does not remove
constitutional limitations safeguarding essential liberties.‖200 If attorneys advise and help clients
to violate law or engage in criminal or fraudulent conduct, attorneys have acted in such a
culpable manner that it would seem fair to hold them civilly or criminally responsible for such
actions. But where an attorney is only advising a client to pursue peaceful and perfectly lawful
conduct, and is providing advice on how to pursue lawful conduct, how can that speech be
criminalized? Again, as established from our era of convicting communists, ―[i]n our
jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct
can only be justified by reference to the relationship of that status or conduct to other concededly
criminal activity . . . that relationship must be sufficiently substantial to satisfy the concept of
personal guilt.‖201 The Humanitarian Law Project wanted to give advice to help FTOs cease
acting unlawfully (using terrorism) and instead pursue their goals through peaceful and lawful
means. How can such advice be criminal? How can advice to cease criminal behavior and act
lawfully ―satisfy the concept of personal guilt‖?202

198

United States v. Robel, 389 U.S. 258, 265 (1967).
See id. at 267.
200
See id. at 264.
201
Scales v. United States, 367 U.S. 203, 225 (1961).
202
In Humanitarian Law Project, the Court determined that even providing peaceful advice could be
criminalized because it could ―legitimize‖ the group and the group could find ways to use such advice to further
their unlawful activities. See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 1725–26 (2010) Specifically, the
Court said if shown how to petition the United Nations or how to negotiate for peace, an FTO could feign interest in
peace negotiations and to gain time and position. See id. at 2729 (―The PKK could, for example, pursue peaceful
negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and
ultimately preparing for renewed attacks.‖ (Emphasis added.)). Justice Breyer‘s response is provoking:
What is one to say about these arguments—arguments that would deny First Amendment protection to the
peaceful teaching of international human rights law on the ground that a little knowledge about ‗the
international legal system‘ is too dangerous a thing; that an opponent‘s subsequent willingness to negotiate
might be faked, so let‘s not teach him how to try? What might be said of these claims by those who live, as
we do, in a Nation committed to the resolution of disputes through ‗deliberative forces‘?
199

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Even if the client has been engaged in unlawful activities, as long as the attorney does not
provide assistance aimed at furthering those unlawful activities, the attorney should not be seen
as being so ―associated‖ with their client that advising or counseling the client is criminal. The
attorney may in fact completely disagree with the client‘s conduct or views, but understands that
the entire theory of the adversary system and the criminal justice system in the United States is
that people threatened with government-imposed loss of life, liberty, or property should be able
to obtain advice and assistance from a legal advocate. In its landmark decision, Gideon v.
Wainright, the Curt explained:
From the very beginning, our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law. This noble ideal
cannot be realized if the poor [or unpopular] man charged with crime has to face his
accusers without a lawyer to assist him.203
The Court held that ―in our adversary system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him.‖204 Thus, even criminals performing the most heinous and inhumane crimes are entitled to
legal counsel in the United States. But the crimes of the client are not imputed to the attorney—
rather the attorney is recognized as performing an essential role in our constitutional justice
system of being the accused‘s ―champion against a hostile world.‖205 Our conception of due
process and liberty, established by the Constitution, includes providing the individual or group
threatened with government-imposed loss of life or liberty with legal assistance to help that
person effectively challenge the overbearing power of government. Indeed, we respect ―the

Id. at 2738 (Breyer, J., dissenting); see also id. (―Moreover the risk that those who are taught will put otherwise
innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even
informed) speculation.‖).
203
Gideon v. Wainwright, 372 U.S. 338, 344 (1963).
204
Id. at 344.
205
See FREEDMAN & SMITH, supra note 47, at 16 (internal quotations omitted).

56

rights even of the guilty individual,‖ which is ―a significant expression of the political
philosophy that underlies the American system of justice.‖206
In the non-criminal context, attorneys have a professional duty to take on legal causes
and provide access to justice even for unpopular clients.207 The decision to represent the
unpopular client has been celebrated in the lives of exemplary lawyers since the founding of the
United States—beginning with John Adams‘ decision to represent the British soldiers involved
in the Boston Massacre208—and demonstrates that American attorneys recognize their role in the
justice system as the protectors of due process regardless of the unpopularity of their clients.
Consequently, someone who acts as an attorney to a criminal, or even a terrorist
organization, should be recognized as having a lesser associational tie to the conduct of the
organization than even membership. The attorney may in fact completely disagree with the
client‘s actions or goals, but yet be firmly committed to principles of due process, legal
representation, equal protection, human rights, and access to justice—principles at the core of
our justice system. Absent attorney assistance to the criminal endeavors of the client, the
association of attorney and client, particularly the provision of legal advice to the client, cannot

206

See id. at 17. Freedman and Smith quote Professor Zupancic in elaborating on this point:
In societies which believe that the individual is the ultimate repository of existential values, his status vis-àvis the majority will remain uncontested even when he is accused of crime. He will not be an object of
purposes and policies, but an equal partner in a legal dispute.
See id. (quoting Zupancic, Truth and Impartiality in Criminal Process, 7 JOUR. CONTEMP. L. 39, 133 (1982)).
207
See, e.g., MODEL RULE OF PROF‘L CONDUCT 6.2, comment 1 (―All lawyers have a responsibility to assist
in providing pro bono publico service. . . . An individual lawyer fulfills this responsibility by accepting a fair share
of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to
serve unpopular clients . . . .‖ (Emphasis added.)).
208
See JOHN ADAMS, DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 2:79 & 3:291–96 (ed. 1961). Adams
explains:
The Part I took in Defence of Captn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.
It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and
one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers
would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.
As the Evidence was, the Verdict of the Jury was exactly right.
See id. at 2:79.

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be an association that constitutionally can be prohibited through the ―taint‖ of the client‘s
activities.
The ability of the attorney to provide full and frank legal advice to clients plays an
essential role in our system of justice. It legitimizes the government‘s criminal and civil power
by providing a means for the lay individual or organization to structure their conduct to avoid
prosecution or liability and to protect their life, liberty, or property—particularly in the face of
laws and legal processes that are difficult to understand without legal training. Such advice
greatly increases the fairness of the administration of the laws by providing people with notice of
the content and reach of the law. Consequently, under the access-to-justice theory, full and frank
advice from attorney to client regarding the lawfulness and unlawfulness of proposed or past
conduct, the reach and purpose of the law, and liability or punishment under the law would be
subject to core protection.
Nevertheless, there are limits to the appropriate scope of protection. Justice Breyer, in
dissent in Humanitarian Law Project, argued that existing First Amendment doctrine ―permit[s]
pure advocacy of even the most unlawful activity—as long as that advocacy is not ‗directed to
inciting or producing imminent lawless action and . . . likely to incite or produce such action.‘‖209
However, that rule, as initially announced in Brandenburg v. Ohio210 should not be the standard
for attorney speech. The access-to-justice theory provides core speech protection for speech
essential to providing access to justice and the fair administration of the laws. It is patently not
essential to the fair administration of the laws to constitutionalize attorney speech advising their
clients to engage in ―even the most unlawful activity―211—regardless of whether or not it would

209

See Holder v. Humanitarian Law Project, 130 S.Ct 2705, 2732–33 (2010) (Breyer, J., dissenting)
(emphasis added).
210
See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
211
Humanitarian Law Project, 130 S.Ct at 2732–33 (Breyer, J., dissenting).

58

―incite or produce imminent lawless action.‖212 The dichotomy of alternatives demonstrates,
again, the need for a First Amendment theory attuned to the attorney‘s function in the system of
justice and the attorney‘s tie to government power and processes. The divergence between the
majority and the dissent in Humanitarian Law Project reflect the typical alternative methods for
examining restrictions on attorney speech: either no protection for attorney speech or the
application of traditional First Amendment doctrine (which is not attuned to the attorney function
in the administration of justice). The Humanitarian Law Project majority provides attorney
speech, including lawful advice, no protection. But the application of Brandenburg v. Ohio, as
indicated by the dissent, to attorney speech would make unconstitutional rules such as Model
Rule of Professional Conduct 1.2(d), which forbids an attorney from counseling or assisting a
client to engage in criminal or fraudulent activities.213
The access-to-justice theory provides protection for attorney advice that is essential to the
role of the attorney in our justice system, including advising the client regarding ―the legal
consequences of any proposed course of conduct‖ and ―the validity, scope, meaning or
application of the law.‖214 However, it would not provide Free Speech Clause protection for
attorney advice intended to further or assist client crimes or fraud.
3. The Ability to Access Courts and Raise Relevant and Colorable Arguments
Although the Supreme Court has been unclear regarding the precise source for the right
to court access,215 the Court has recognized a constitutional right to access the courts arising

212

Brandenburg, 395 U.S. at 447.
MODEL RULE OF PROF‘L CONDUCT 1.2(d).
214
See id.
215
See Christopher v. Harbury, 536 U.S. 403, 415, n. 12 (2002) (―Decisions of this Court have grounded
the right of access to courts in the Article IV Privileges and Immunities Clause, the First Amendment Petition
Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due
Process Clauses.‖ (Citations omitted)).
213

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from the Due Process Clauses for criminal defendants,216 civil rights litigants,217 and people
denied fundamental rights over which the state courts have a monopoly.218 In NAACP v. Button,
the Supreme Court recognized that the First Amendment rights to petition for redress of
grievances, of free association, and, importantly, of expression secured the attorneys‘ ―First
Amendment rights to enforce constitutional rights through litigation.‖219 The Supreme Court has
also recognized under the First Amendment‘s Petition Clause, a right of civil litigants to bring
non-frivolous claims in court proceedings, including state and federal common law claims.220
Consequently, litigants cannot be punished or sanctioned for filing a non-frivolous civil claim.221
Moreover, the Due Process Clauses prohibits the state and federal governments from depriving
individuals of life, liberty, or property without due process of law. The Due Process Clauses thus
require ―a meaningful opportunity to be heard.‖222 These rights to due process and court access
belong to the client, but if the attorney can be punished or prohibited from bringing claims, the
underlying rights of clients to court access are weakened and perhaps lost.223 Attorneys provide
effective access to the court system, and to the extent that individuals have a right to raise a claim

216

See, e.g., Bounds v. Smith, 430 U.S. 817, 821 (1977) (―It is now established beyond doubt that prisoners
have a constitutional right of access to the courts.‖).
217
See, e.g., NAACP v. Button, 371 U.S. 415 (1963).
218
See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116–19 (1996); Boddie v. Connecticut, 401 U.S. 371, 380–81
(1971).
219
See Button, 371 U.S. at 437–40.
220
See Prof‘l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. at 62–63 (holding that
litigant could not be punished under the anti-trust laws for filing a civil claim against a competitor unless the claim
was ―objectively baseless‖); Bill Johnson‘s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983) (holding that the NLRB
cannot enjoin civil litigation unless ―plaintiff‘s position is plainly foreclosed as a matter of law or is otherwise
frivolous‖); see also Harbury, 536 U.S. at 414–15.
221
See FREEDMAN & SMITH, supra note 47, at 22–26; Prof‘l Real Estate Investors, 508 U.S. at 62–63
(1993); Bill Johnson‘s Rests., 461 U.S. at 743.
222
See Boddie, 401 U.S. at 377; see also Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (creating threefactored balancing test to determine what process is due and whether there has been a meaningful opportunity to be
heard).
223
See Tarkington, Free Speech Right to Impugn, supra note 24, 371–79 (concluding that ―[i]f attorneys are
punished or deterred from bringing such claims, the underlying rights of the litigants are lost‖).

60

or defense in court proceedings, attorneys should have a corresponding speech right to effectuate
the client‘s access and due process rights.
The argument that attorneys should have protected speech rights to access the courts,
bring claims and raise arguments in court proceedings initially seems problematic. Speech made
in conjunction with formal court proceedings (including administrative and traditional court
processes) is perhaps among the most highly-regulated speech. Between the applicable rules of
evidence, procedure, and professional conduct, the attorney works in an environment where her
speech is subject to multiple levels of highly-restrictive regulation. Schauer describes attorney
speech in court proceedings as containing an ―omnipresence of speech regulation.‖224 Moreover,
and rightly so, Schauer contends that ―the speech of the law—in court and out—owes its
effectiveness and its very possibility to rules that restrict and prohibit certain forms of speaking
and writing.‖225 Schauer argues that ―something like a courtroom trial‖ is both ―rule-dependen[t]
and enforcement-dependen[t].‖226 A trial (or really any courtroom proceeding) simply cannot
proceed without ―elaborate rules about who goes when, about who speaks, and about who does
not speak,‖ ―rules about how to speak,‖ and ―rules about what not to say.‖227 Schauer argues that
―the First Amendment has, [] properly never been thought to apply‖ to ―a vast array of lawyer
and legal system activity‖ and thus the ―omnipresence of speech regulation‖ is (and should
remain) ―unencumbered by either the doctrine or the discourse of the First Amendment.‖228
Inherent in Schauer‘s conclusion is an assumption that (outside of ―extrajudicial utterances‖) the
application of the First Amendment to attorney speech would necessarily interfere with the role
224

Schauer, supra note 33, at 691.
Id. at 688.
226
Id. at 689.
227
Id.
228
Id. at 702 & 691. Notably, Schauer argues that the First Amendment may apply to attorney speech when
―the justifications for the First Amendment‘s existence, in particular the distrust of the self-protective activities of
government itself, apply to that activity.‖ See id. at 702.
225

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of attorneys and legal processes.229 Indeed, the Supreme Court, in dicta, has seemed to agree
with Schauer‘s conclusion by stating: ―It is unquestionable that in the courtroom itself, during a
judicial proceeding, whatever right to ‗free speech‘ an attorney has is extremely
circumscribed.‖230
Schauer‘s premises do not necessarily lead to his conclusion. Indeed, a different result
altogether is proposed here. Schauer is certainly right that attorney speech regulation in the court
context is ubiquitous and that such regulation—the restriction of speech—is necessary to
preserve the effectiveness of trial, as well as any other court proceeding. Where Schauer errs is in
the conclusion that therefore the First Amendment is properly inapplicable.
Alexander Meiklejohn, in his seminal work, Free Speech and Its Relation to SelfGovernment, takes up this very problem. In talking about restrictions on political speech,
Meiklejohn provides as an illustration, the traditional American town meeting. Meiklejohn notes
that the meeting is held ―not primarily to talk, but primarily by means of talking to get business
done.‖231 Meiklejohn also notes that ―the talking must be regulated and abridged as the doing of
business under actual conditions may require,‖ and provides examples of having a chair who
conducts and moderates the meeting, of limiting arguments to an assigned share of the time
available,232 of finding people out of order if a speaker is ―abusive or in other ways threatens to
defeat the purpose of the meeting‖ and in extreme circumstances, even denying such abusive
229

See, e.g., id. at 695. In discussing the inapplicability of the First Amendment, Schauer argues that ―the
most obvious‖ argument for not protecting speech ―is respect for a criminal defendant‘s right to a fair trial, and
many of these arguments would spill over into the less-constitutionalized realm of litigants in general. There are also
policy arguments about preserving the integrity of the trial process and preserving the integrity, more particularly, of
the jury process, arguments of the type that have generated many of the rules of evidence themselves.‖ See id.
Again, it is important to note, that such arguments for not protecting attorney speech assume that any such
protection will in fact frustrate ―a criminal defendant‘s right to a fair trial‖ and the ―integrity of the trial process.‖
However, the whole point of the access-to-justice theory of the First Amendment is that the First Amendment should
be invoked, in fact, to preserve the integrity, not only of the trial and jury processes, but the integrity of the entire
system of justice.
230
Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991) (citations omitted).
231
MEIKLEJOHN, supra note 39, at 23.
232
Id. at 26.

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speakers continued use of the floor.233 Indeed, Meiklejonhn says ―[t]he town meeting, as it seeks
for freedom of public discussion of public problems, would be wholly ineffectual unless speech
were thus abridged.‖234 This is precisely Schauer‘s point about regulations on attorney speech in
judicial proceedings—the speech must be abridged in order to be effectual, in order to fulfill its
purpose.
But Meiklejohn does not conclude, as does Schauer, that therefore the First Amendment‘s
protections are inapplicable in town meetings. To the contrary, Meiklejohn contends that as to
such speech, the First Amendment‘s prohibition on abridgement is absolute. Meiklejohn explains
his ―paradox‖ thus: ―These speech-abridging activities of the town meeting indicate what the
First Amendment to the Constitution does not forbid. When self-governing men demand freedom
of speech they are not saying that every individual has an unalienable right to speak whenever,
wherever, however he chooses.‖235 Rather, in the town meeting, the First Amendment allows
citizens, as ―free and equal men‖ and women, to ―cooperat[e] in a common enterprise, and us[e]
for that enterprise responsible and regulated discussion. It is not a dialectical free-for-all. It is
self-government.‖236 In this system,
Every man [and woman] is free to come. They meet as political equals. Each has a right
and a duty to think his own thoughts, to express them, and to listen to the arguments of
others. The basic principle is that the freedom of speech shall be unabridged. And yet the
meeting cannot even be opened unless, by common consent, speech is abridged.‖237
In like manner, the court systems are created as part of our constitutional government and
all individuals are free to access the courts and seek legal redress (assuming they have suffered
an injury and have a legally cognizable right). Litigants ―meet as political equals‖ and are able to

233

Id. at 22–23.
Id. at 23.
235
Id. at 23–24.
236
Id. at 23.
237
Id. at 22 (emphasis added).
234

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raise their own arguments and respond to the arguments of others. But this free speech is only
possible because of the agreement to abridge speech so that court business can get done.
Meiklejohn, of course does not end there. Having illustrated permissible speech
regulation of political speech, he then examines the impermissible restriction. ―[T]he vital point‖
according to Meiklejohn ―is that no suggestion of policy shall be denied a hearing because it is
on one side of the issue rather than another. And this means that though citizens may be barred
from speaking on other grounds, they may not be barred because their views are thought to be
false or dangerous. . . . And that means unwise ideas must have a hearing as well as wise ones,
unfair as well as fair, dangerous as well as safe, un-American as well as American.‖238
Meiklejohn contends that ―[t]hese conflicting views may be expressed, must be expressed, not
because they are valid, but because they are relevant.‖239 ―What is essential is not that everyone
shall speak, but that everything worth saying shall be said.‖240
Thus, while ―[t]he First Amendment is not the guardian of unregulated talkativeness‖—
particularly in political processes like the town meeting or the courtroom, that does not mean that
the First Amendment plays no role in those settings. To the contrary, such settings is where the
First Amendment plays its most central role. What Meiklejohn argues the First Amendment
prohibits in these structured political processes is the mutilation and manipulation of selfgovernment: ―It is that mutilation of the thinking process of the community against which the
First Amendment to the Constitution is directed.‖241 Thus each side (and multiple sides and
views) of an issue must be heard.

238

Id. at 26.
Id. at 27.
240
Id. at 25.
241
Id. at 26; see also id. at 8 (‖But the manipulation of men is the destruction of self-government‖).
239

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In the context of courtroom speech, what is vital, ―is that no suggestion of policy shall be
denied a hearing because it is on one side of the issue rather than another‖242 and that
―conflicting views . . . [are] expressed . . . because they are relevant.‖243 This idea is particularly
compelling in the adversary system—an underlying premise of which is that truth is more likely
to be found if multiple points of view are heard.244 The adversary system and the attorney‘s role
therein are frustrated where ―mutilation‖ of the presentation of relevant and conflicting views are
allowed.
Thus, the saturation of attorney speech regulation in court proceedings does not compel
the conclusion that First Amendment protection is neither needed nor appropriate. The Supreme
Court has recognized what I would characterize as ―core‖ attorney speech protection for court
proceedings in its decision, Legal Services Corp. v. Velazquez.245 In Velazquez, the Supreme
Court struck, as violative of the First Amendment, restrictions on the advice and advocacy of
attorneys funded through the Legal Services Corporation. The restrictions forbad attorneys from
undertaking any representation that sought to amend or challenge existing welfare law. 246 In so
doing, the Court recognized that the attorneys had First Amendment rights and that speech
restrictions could violate those rights even in the highly regulated area of courtroom speech and
argument. The Velazquez Court recognized two categories of attorney in-court speech (including
written and oral communications to a court) that must be protected: (1) attorneys must be free to

242

Id. at 100.
Id. at 27.
244
As explained by the Fourth Circuit:
Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the
object of the system‘s process which is designed for the purpose of dispensing justice. However, because
no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence,
precedent and custom, and argument to reasoned conclusions—all directed with unwavering effort to what,
in good faith, is believed to be true on matters material to the disposition.
United States v. Shaffer Equipment Co., 11 F.3d 450 (4 th Cir. 1993).
245
531 U.S. 533 (2001).
246
See id. at 536–37.
243

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―present all the reasonable and well-grounded arguments necessary for proper resolution of the
case‖247; and (2) regulators cannot restrict attorney speech in order to ―insulate the Government‘s
laws‖ or government action ―from judicial inquiry‖ and scrutiny.248
As with Meiklejohn‘s arguments regarding self-government, what regulators must be
forbidden from doing in restricting attorney in-court speech (both written and oral) is
manipulating the judicial system by manipulating the substantive arguments that may be
presented. To the extent that such manipulation is allowed, justice itself is manipulated and
access to justice is thwarted for those on the losing side of the regulation.
4. The Ability to Preserve the Constitutional Rights of Others
Although in many respects the attorney‘s ability to preserve constitutional rights is
covered in the prior section on being able to raise relevant and colorable claims on behalf of
clients, there are scenarios where an attorney must speak to preserve constitutional rights in
special contexts other than representing her own client. As with the entire access-to-justice
theory, the contours of this portion need further development and exploration. A notable
example, however, is that of the prosecutor‘s constitutional obligation to provide the defense
with exculpatory evidence under Brady v. Maryland.249 In Garcetti v. Ceballos, the Supreme
Court held that attorneys lack a First Amendment right (vis-à-vis their supervisors/employers)
when performing their official duties, including providing such constitutionally required
materials to the defense.250 Thus the Supreme Court held that a deputy district attorney, Richard

247

See id. at 545.
See id. at 546; see also Tarkington, Free Speech Right to Impugn, supra note 24, 386–87 (arguing that
the judiciary should not be able to insulate itself from scrutiny by punishing attorneys for raising colorable
arguments of judicial bias).
249
373 U.S. 83 (1963).
250
Garcetti v. Ceballos, 547 U.S. 410 (2006).
248

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Ceballos, could be punished by his employer for fulfilling what he understood were his
obligations under Brady to provide exculpatory materials to the defense.251
Under the access-to-justice theory, attorney speech that preserves the constitutional rights
of others (including, and perhaps especially the constitutional rights of criminal defendants)
would be speech that is essential to providing access to justice and the fair administration of the
laws and thus would be entitled to core free speech protection. An attorney in Ceballos‘s position
should have a recognized free speech right to provide the defense with exculpatory materials—
especially as attorneys are required by the Constitution and the Rules of Professional Conduct to
provide such materials. When admitted to the bar, attorneys take an oath to uphold the
Constitution. Attorneys should have a free speech right sufficient to fulfill that oath where
speech is needed to preserve constitutional rights of one‘s own clients or others in the justice
system.
V. Preserving the Attorney’s Role
One of the primary justifications for self-regulation of attorneys is the idea that attorneys
(and in our system of self-regulation, state judiciaries) understand the role of the attorney in the
administration of justice and thus will impose appropriate regulation. Although certainly prone to
failings, self-regulation in theory would safeguard the role of the attorney in providing access to
justice and the fair administration of the laws. The regulations in Humanitarian Law Project and
Milavetz that appear to interfere with the attorney-client relationship and the role of the attorney
in our system of justice were enacted by Congress. The Supreme Court in Milavetz approved
Congressional regulation of attorney speech in areas of ―national concern.‖ However, such
approval—the recognition of the power of Congress to regulate attorneys—contains no method
for ensuring that the essential role of the attorney in our system of justice is safeguarded. Further,
251

See id.

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normal First Amendment doctrines are not keyed to protecting this role—and will certainly fail
to adequately protect it as happened in Humanitarian Law Project. (Often these doctrines have
been employed in the attorney advertising arena where attorney speech is arguably more similar
to that of other regulated entities.252) The lack of such safeguards is particularly troubling when a
majoritarian entity subject to majoritarian overreactions and pressures—like Congress—can
shape the extent to which attorneys are allowed to provide access to justice and the fair
administration of the laws.
Justice can only be obtained through speech. I argue above that Schauer inaccurately
asserts that ―speech is all we have‖ because attorney speech is tied to government power and is
not speech in the abstract.253 Yet, the invocation and avoidance of government power to preserve
client life, liberty, and property by an attorney can only happen through speech. And thus, in a
sense, Schauer is absolutely correct that ―speech is all we have‖ because speech is the only
means that attorneys have to fulfill their role in the justice system. Speech is the attorney‘s only
tool, her sole ―saw[] [or] scalpel[],‖254 to accomplish her work, including all four of the areas of
attorney speech essential to the administration of justice outlined above. To turn Schauer‘s point
on its head—it is precisely because ―speech is all we have‖ that the vocation and role of the
attorney can be frustrated and even denied through restricting attorney speech essential to the
attorney‘s role in the administration of justice.
It should be disconcerting if that speech is not protected by anything but the good graces
of regulators, especially from regulators who may be subject to majoritarian capture. Thus, the
greatest concern is for protecting the life, liberty, and property interests of minorities and groups
252

See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623–24 (1995); Shapero v. Ky. Bar Ass‘n, 486
U.S. 466, 472 (1988); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 637–44
(1985); In re R.M.J., 455 U.S. 191, 203–06 (1982).
253
See Schauer, supra note 33, at 688; see also supra Part II.
254
See id.

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deemed undesirable by the majority. (It would be hard to be a more unpopular group than the
designated foreign terrorist organizations in Humanitarian Law Project.) Madison noted his
concern ―that measures are too often decided, not according to the rules of justice and the rights
of the minor party, but by the superior force of an interested and overbearing majority.‖255 But as
Milavetz indicates and Humanitarian Law Project demonstrates, regulation from ―an interested
and overbearing majority‖ could thwart ―the rules of justice‖ themselves through the restriction
of attorney speech on behalf of ―the minor party.‖
John Hart Ely warned against malfunction of political processes, whereby elected
representatives can ―act[] as accessories to majority tyranny‖256 According to Ely, ―malfunction‖
occurs when
(1) the ins are choking off the channels of political change to ensure that they will stay in
and the outs will stay out, or (2) though no one is actually denied a voice or vote,
representatives beholden to an effective majority are systematically disadvantaging some
minority out of simple hostility or a prejudiced refusal to recognize commonalities of
interest, and thereby denying that minority the protection afforded other groups by a
representative system.257
One way of creating such malfunction is through the regulation of attorney speech that cuts off
certain people because of their unpopular status (e.g., terrorists, debtors, the NAACP during the
1960s, communists in the 1950s) from attorney access, and thus from the protection of law. For
example, in Humanitarian Law Project, the plaintiffs wanted to teach certain groups how to use
the law to achieve their goals through peaceful and lawful means, rather than through terrorism.
Eradicating terrorism is a common interest of both the Humanitarian Law Project and the
Congress that enacted IRTPA, but there is ―a prejudiced refusal to recognize commonalities of

255

The Federalist Papers, No. 10.
JOHN HART ELY, DEMOCRACY AND DISTRUST at 103.
257
Id.
256

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interest‖ and so these minorities are denied ―the protection‖ and the ability to invoke the power
of law and obtain attorney advice that is ―afforded other groups.‖
In the face of the McCarran Act and other red scare legislation of the 1950s, including
legislation aimed at curtailing attorney activities in relation to alleged communist groups,258
Zechariah Chaffee wrote:
The only way to preserve ‗the existence of free American institutions‘ is to make free
institutions a living force. To ignore them in the very process of purporting to defend
them, as frightened men urge, will leave us little worth defending. We must choose
between freedom and fear—we cannot have both.259
Of course, this statement is particularly apropos as to Humanitarian Law Project. But even if
IRTPA weren‘t a current reality, we would still need to make free institutions ―a living force,‖
including our justice system and the essential role that attorneys play therein. The access-tojustice theory calls upon the First Amendment to make essential attorney speech that secures life
and liberty ―a living force‖ that cannot be thwarted by legislation or other regulation.
Recognition of the access-to-justice theory, consequently, is not only aimed at providing
a workable First Amendment theory for examining regulations of attorney speech, but more
importantly, is aimed at preserving the role of the attorney in our system of justice—regardless
of the regulating entity. The theory restores the theoretical benefit of self-regulation by having
regulation come primarily through a judiciary who understood the role of attorneys in our justice
system. By providing core First Amendment protection to attorney speech that is essential to our

258

ZECHARIAH CHAFEE, JR., THE BLESSINGS OF LIBERTY 142, 157–61 (1956). Chafee argued against the
creation of a ―new political crime‖ that punished anyone who ―contribute[d] to the establishment within the United
States of a totalitarian dictatorship‖ under ―the direction and control‖ of a foreign organization, government, or
individual. See id. at 142. Chafee also argued against the requirement that attorneys annually sign a loyalty oath and
―affidavit stating whether he is or ever has been a member of the Communist Party‖ or other organization committed
to overthrowing the United States government. See id. at 158. Chafee maintains that while citizens and lawyers
ought to work to prevent a totalitarian dictatorship from ―taking over our government and our lives and destroying
our freedoms; [] we ought to try to do so by choosing methods which will be effective, . . . which will not impair the
very freedoms which we are anxious to maintain.‖ See id. at 160–61.
259
Id. at 156 (1956).

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justice system, the theory also safeguards the attorney‘s role in providing equal access to justice
and to the fair administration of the laws.
It is also important to understand what the access-to-justice theory does not do. It does
not protect attorney speech that would frustrate the American system of justice, including the
trial process itself, the right to jury trial, the right against compelled self-incrimination, the right
to effective assistance of counsel, the right to confront and to call witnesses, and other
constitutional and otherwise essential components to our justice system.260 Schauer attempts to
illustrate how problematic it would be to apply the First Amendment to attorney speech, with a
hypothetical situation where a trial court rules that evidence of a drug deal should be excluded.261
Schauer‘s hypothetical prosecutor decides in opening argument to describe to the jury the
excluded evidence and the fact of its exclusion by the judge.262 Schauer asserts: ―Now we all
know what would happen to the trial and the prosecutor at this point were this to happen. And we
know as well what would happen if the prosecuting attorney were to claim a denial of his or her
First Amendment right to speak to the jury—unmitigated laughter.‖263 Schauer is trying to
illustrate the inapplicability of the First Amendment to the ―speech of law.‖ Yet employing the
access-to-justice theory does not create his hypothetical problem. The idea of the access-tojustice theory is to create First Amendment protection for attorney speech that is attuned to the
United States justice system and the role of the attorney therein. Thus if a ―restriction‖ (like the
exclusionary rule or the rule prohibiting ex parte communications to jurors) is aimed at, for

260

See FREEDMAN & SMITH, supra note 47, at 13 (―The rights that comprise the adversary system include
personal autonomy, the effective assistance of counsel, equal protection of the laws, trial by jury, the rights to call
and to confront witnesses, and the right to require the government to prove guilt beyond a reasonable doubt and
without the use of compelled self-incrimination. These rights, and others, are also included in the broad and
fundamental concept that no person may be deprived of life, liberty, or property without due process of law—a
concept which itself has been substantially equated with the adversary system.‖).
261
Schauer, supra note 33, at 693.
262
See id.
263
See id.

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example, respecting the criminal defendant‘s right to a fair trial, or right against compelled selfincrimination, or right to jury trial, then that restriction would clearly be constitutional. There
certainly would be no Free Speech Clause protection for attorney speech that frustrates the
justice system by interfering with the core rights protected thereby. While the access-to-justice
theory needs further development and there may be areas where there is room for argument as to
whether attorney speech is essential to providing access to justice or the fair administration of the
laws, yet in situations like Schauer‘s hypothetical where allowing attorney speech would in fact
frustrate the justice system, then the prohibition would not receive First Amendment protection
under the access-to-justice theory.
Schauer‘s example is accurate in demonstrating that the normal doctrines and discourse
of the First Amendment would not readily show when attorney speech should be restricted to
preserve our justice system. However, the application of—or even Schauer‘s view to disregard—
the normal doctrines and discourse of the First Amendment also fails to show when attorney
speech should be protected because the speech is essential to fulfill the attorney‘s function and
role in the justice system. Further, Schauer‘s concern that if the First Amendment were applied
to attorney speech then the general doctrines of the First Amendment would have to be diluted
(to allow for restrictions like the exclusionary rule) is also resolved by a theory of the First
Amendment that is particularly attuned to attorney speech.264 Because the access-to-justice
theory would only apply to the ―speech of law,‖ and not to speech in general, it would not serve
to dilute other areas of Free Speech Clause protection.

264

See id. at 698–700.

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IV. Conclusion
When an attorney is admitted to practice law in a United States jurisdiction, the attorney
swears to uphold the Constitution of the United States as well as the constitution of the state in
which that attorney is being admitted. Further, the attorney becomes an ―officer‖ of that court.
Traditionally, such ―officers of the court‖ have been viewed as having relinquished their
free speech rights, as part of their office.265 Further, under the constitutional conditions doctrine,
the attorney relinquished her personal liberty interest (guaranteed by the Free Speech Clause) to
speak contrary to the regulations imposed by the judiciary and bar.266 However, the idea was
always flawed. Even assuming an attorney can waive her own personal liberty interest of free
speech in exchange for a license to practice law, the attorney cannot waive providing speech
essential to the fair administration of justice. The attorney cannot waive fulfilling her essential
role in our system of justice. Indeed, the lawyer is not solely an officer of the specific court of
which she is admitted, but is more importantly an officer of the overall United States justice
system. Rather than extinguishing her right to free speech, the attorney‘s office and her oath to
uphold the Constitution instead require that the attorney assert her constitutional right to free
speech on behalf of clients in invoking and avoiding the power of government and securing the
rights of her clients to life, liberty, and property.

265

See, e.g., Sullivan, supra note 69, (explaining that attorneys are more likely to be seen as lacking free
speech rights when acting in their capacity as officers of the court).
266
See supra notes 64–67 and accompanying text.

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