Lawyers’, Law Professors’ and Law Students’ Free Speech: The Rule of Law, Civility, and Informed Engagement

Authors

Eli Wald

Abstract

(Excerpt)

The Article is organized as follows. Part I summarizes the traditional doctrine governing lawyers’ free speech, as well as the related doctrines of free speech, academic freedom, and tenure on college campuses. Part II explores twenty-first century developments that have thrown these old established doctrines into a state of flux.

Part III consists of three sections. The first suggests a new understanding of lawyers’ free speech, arguing that unprecedented twenty-first-century attacks on the rule of law justify recognizing a third, narrowly tailored restriction on lawyers’ free speech. In addition to the traditional restrictions grounded in protecting clients from lawyers’ vexatious conduct and safeguarding the search for the truth, lawyers’ speech should be narrowly restricted to protect the rule of law. The first section concludes by applying this revised understanding of lawyers’ free speech doctrine to recent free speech controversies in the practice of law.

The second section argues that law professors and law students’ speech should be analyzed as a subset of lawyers’ speech, rather than solely though the traditional understanding of freedom of speech and academic freedom on campus, which does not distinguish law schools and their actors from other university units. The third section applies this new reconceptualized framework to contemporary controversies involving law students and law professors.