Regulating the Speech of Judges and Lawyers: The First Amendment and the Soul of the Profession

The legal profession has historically asserted moral and legal authority to substantially control the speech of judges and lawyers. This impulse to control the speech of judges and lawyers is driven by many of the profession’s most strongly held interests and values. These include such interests as ensuring the fair administration of justice, the promotion of respect for the rule of law, the preservation of public confidence in the legal system, the preservation of the appearance of judicial impartiality, the maintenance of professionalism, and the safeguarding of the dignity of the profession. Some of these interests are palpable and may directly buttress the functionality of the legal system. These functional interests include regulations that directly affect the operation of the legal system, such as regulations that are calculated to deter actual interference with the administration of justice, to preserve the lawyer’s obligations to maintain client confidences, or to prevent misleading lawyer advertising or marketing. Other interests often advanced to defend restrictions on the speech of judges and lawyers, however, are grounded in the highest ideals and values of the profession, rather than the actual functionality of the legal system. These include values such as promoting respect for the rule of law, maintaining public confidence in the legal system, maintaining professionalism (a concept different from adherence to hard-law legal ethical rules), and safeguarding the dignity of the profession. This Essay argues that the two types of rationales, functional and idealistic, are on different footings under First Amendment theory and doctrine. Regulation of the speech of judges and lawyers is appropriately treated as a “carve out” from the high levels of protection afforded speech in the general marketplace. Even so, this Essay maintains, once regulation moves from the actual protection of functional interests to the aspirational values of the profession, the First Amendment comes to bear with greater force, and many regulations restricting the speech of judges and lawyers on more ethereal grounds ought to be deemed inconsistent with the First * Visiting Professor of Law, University of Georgia School of Law; Former President, Furman University; Former Dean, Washington and Lee University School of Law; Former Dean, University of Richmond School of Law. 1 Smolla: Regulating the Speech of Judges and Lawyers: The First Amendment Published by UF Law Scholarship Repository, 2015 962 FLORIDA LAW REVIEW [Vol. 66 Amendment. These values, of enormous importance to most judges, lawyers, and legal educators, are best advanced through education and peer pressure, and not outright regulation. INTRODUCTION 962 I. DISTINGUISHING THE GOVERNMENT AS SOVEREIGN FROM THE GOVERNMENT AS MANAGER 963 A. The High Protection for Speech in the Marketplace 963 B. The Reduced Protection in the Carve Outs 965 II. THE “LEGAL PROFESSION” AS A SPECIAL SETTING CARVED OUT OF THE GENERAL MARKETPLACE 967 A. Distinguishing Outsiders from Insiders 967 B. Defining the Contours of the “Legal Profession” Carve Out 968 C. Functional Justifications for Reduced Free Speech Protection for Judges and Lawyers 968 D. Nonfunctional Justifications for Speech Restrictions 971 1. Critique of the Legal System by Lawyers and Judges 972 2. Self-Promotion by Judges and Lawyers 980 a. Self-Promotion by Judicial Candidates 982 b. Self-Promotion by Marketing Lawyers 983 CONCLUSION 989