So when I was sent a link to a very well written law review from the Boston College Law Review arguing for a more expansive free speech right for lawyers to impugn judicial integrity in court proceedings, I was compelled to publicize it here.Written by Associate Professor Margaret Tarkington of BYU’s J. Reuben Clark Law School, the author persuasively contends that attorneys have A Free Speech Right to Impugn Judicial Integrity in Court Proceedings.
Professor Tarkington’s most compelling arguments on why a lawyer’s free speech right to impugn judicial integrity must be recognized are grounded on: the necessity of protecting a litigant’s right to an unbiased judiciary; on a litigant’s right to access to courts; on the preservation of a litigant’s protections such as due process; and on advancing the judicial system’s proper functioning.
She does a remarkable job of analyzing the arguments for constraining lawyers in court and in their filings and then proceeds to point out the failings inherent in those arguments. She concludes by laying out how the interests of stakeholders can be accommodated through existing content and viewpoint neutral rules.
Professor Tarkington’s scholarship is worthwhile reading not only for members of the bar but for those on the bench. The Abstract follows.
“This Article examines why a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and legal rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right for the attorney preserves litigants’ access to courts and due process rights. Previous scholarly arguments, which are based on analogies to other areas of limited First Amendment protection, fail to account for the protection of litigant rights, the role of attorneys in our adversary system, and the constitutionally required role of our judicial system. By curbing speech in the presentation of claims, the judiciary undermines the adversarial system and the role of attorneys therein, as well as undermining the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.”