As some readers of this blog may know, I've been working on a project since last winter that focuses on the Supreme Court's recent decisions Milavetz, Gallop & Milavetz v. U.S. and Holder v. Humanitarian Law Project in the context of First Amendment protection for legal advice. (See previous posts here, here, here and here.) A draft of my new paper, Attorney Advice and the First Amendment, is now available on SSRN (link here). I'd welcome any feedback, either in the comments or by email. Here is the abstract:
An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence.
This article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice.
Part I of the article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application to advice rendered by attorneys, though both offer helpful illustrations of the important concerns at stake when the government legislatively constricts access to legal advice. Part II of the article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part III reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice.