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.
Margaret Tarkington, A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 B.C.L. Rev. 363 (2010), http://lawdigitalcommons.bc.edu/bclr/vol51/iss2/2