20.07.01. Constitutional concerns

There has long been a tension between the First Amendment rights of attorneys to speak about cases and the need to ensure that cases are tried in the courtroom and not in the court of public opinion.  In 1908, Canon 20 of the ABA Canons of Professional Ethics took the position that less speech by lawyers was the best way to avoid improper influence over cases:

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice.  Generally they are to be condemned.  If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously.

The Canons were viewed as aspirational and there was very little discipline based on the prohibition.  However, two events caused the ABA to reevaluate the ethical standard.  The first was the assassination of President John Kennedy and the media frenzy that followed.  Specifically, the Warren Commission recommended that those involved in criminal prosecutions “establish ethical standards concerning the collection and presentation of information to the public so that there will be no interference with pending criminal investigations, court proceedings, or the right of indivdiuals to a fair trial.”[1]  In response, the ABA appointed a Committee to consider what steps to take.  After the Committee was formed, the United States Supreme Court decided Sheppard v. Maxwell.[2] 

The Sheppard case involved the conviction of Dr. Sam Sheppard for the murder of his wife.  The trial, which garnered national attention could not be called anything short of a circus.  There was overwhelming media coverage before and during the trial.  The editorials run in the local paper indicated a belief that Sheppard was guilty. The judge reserved seating in the courtroom for the media.  Here is how the Supreme Court described it:  “bedlam reigned at the courthouse during the trial, and newsmen took over practically eht entire courtroom, houding most of the participants in the trial, especially Sheppard… Having assigned almost all of the available setas in the courtroom to the news media, the judge lost his ability to supervise that environment.  The movement of the reports in and out of the courtroom caused frequent confusion and disruption of the trial….”[3]  The defense sought a mistrial, change of venue and, after Sheppard was convicted, a new trial – all of which was denied.  In Sheppard the Court stressed the importance of conclusions in a criminal trial being based on what happens inside and not outside of the courtroom.  The Court reversed Sheppard’s conviction.  Sheppard was subsequently acquitted in a retrial.

The Court decision placed blame at the feet of the trial judge who failed to take control of his courtroom.  Statements made by the Court in the opinion became the basis for what is now the ethical restrictions on extrajudicial comments:

[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. . . If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered.  But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception.  The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.  Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction othe court should be permitted to frustrate its function.  Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable, and worthy of disciplinary measures.[4]

Relying on the Sheppard case, especially the idea that statements that have a “reasonable likelihood” to impact the fairness of the proceeding could be prohibited, the Model Code and the current Model Rules adopted the standard prohibiting extrajudicial statements that the lawyer reasonably should believe will have a “substantial likelihood of materially prejudicing an adjuciative proceeding….”[5] The Supreme Court in Gentile v. State Bar of Nevada subsequently held that this standard was constitutional because the restriction on speech was sufficiently narrowly tailored to “protect the integrity and fairness of a State’s judicial system….”[6]  The Gentile case in 1991 is the last significant case addressing the balance between the state’s right to restrict speech and a lawyer’s First Amendment right to speak on behalf of his or her client.

[1] Lonnie T. Brown, Jr.,  “‘May it Please the Camera, . . . I Mean the Court’ – an Intrajudicial Solution to an Extrajudiial Problem, 39 Ga. L. Rev. 83, 96 (2004) (quoting Warrant Commission Report of 1964).

[2] 384 U.S. 333 (1966).

[3] Sheppard v. Maxwell, 384 U.S. 333, 355 (1966).

[4] Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

[5] ABA Rule 3.6(a).

[6] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991).