NCJ Number
152346
Journal
Seton Hall Law Review Volume: 22 Issue: 4 Dated: (1992) Pages: 1401-1455
Date Published
1992
Length
55 pages
Annotation
This analysis of pretrial publicity and issues of freedom of speech focuses on the U.S. Supreme Court decision in Gentile v. State Bar, in which the court adopted the standard of substantial likelihood of material prejudice, rather than clear and present danger, for the regulation of attorney conduct.
Abstract
The Gentile decision departs from the Court's consistent protection of free speech during criminal trials. In endorsing this less stringent standard, the Court abandoned traditional First Amendment protection and condoned censorship. The Gentile holding denigrated First Amendment rights of attorneys to express opinions, gather information, advocate reform, and publicly refute accusations. However, alternative methods are available to protect fair trials without inhibiting expression. To preserve First Amendment rights, disciplinary rules should merely prohibit speech that an attorney knows or should know to be false or made in bad faith. Such a rule would allow sanctions against attorneys who are zealously defending their client in good faith and eliminate interference with an attorney's fiduciary obligations. In addition, education and reform within the adversary system should emphasize ethical conduct and condemn the combative atmosphere that sacrifices justice for legal fees and notoriety. Footnotes