Abstract
Prior approaches to examining attorney speech rights have failed to address pretrial publicity in a manner that protects the criminal justice system and the essential roles of the prosecutor and defense attorney therein, as discussed in Part I. Yet the access-to-justice theory, as discussed in Part II, attunes attorney speech rights to the role of the attorney in the proper and constitutional functioning of the justice system. As discussed in Part III, the very nature of the criminal justice system imposes vastly differing obligations and duties on the prosecution and defense and their respective attorney–client relationships. In Part IV, this Article employs the access-to-justice theory to determine the appropriate scope of free speech rights for defense attorneys and prosecutors by examining their respective roles in the criminal justice system and the effects of pretrial publicity from each on the integrity of that system.
As revealed through this analysis, what is lost in the traditional compromise is the protection of both the robust free speech rights of defense attorneys and the integrity of criminal processes. Contrary to the Supreme Court’s Gentile decision, such a compromise was unnecessary to achieve viewpoint neutrality and to recognize the essential, but limited, First Amendment rights of prosecutors to engage in speech necessary for the investigation and prosecution of crime and for responding to defense-initiated publicity. By attuning the speech rights of the attorneys to the proper functioning of the criminal justice system, both free speech and criminal justice are safeguarded rather than compromised.
Recommended Citation
Margaret Tarkington,
Lost in Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity,
66 Fla. L. Rev.
1873
(2014).
Available at: https://scholarship.law.ufl.edu/flr/vol66/iss5/2
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