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New rules put gag on too tight for Illinois lawyers

By Douglas Lee
Special to freedomforum.org

11.03.99

One of the few free-speech threats more popular than laws regulating reporters are rules gagging lawyers.

As an Illinois attorney, I soon will be bound by an amended Illinois Supreme Court rule that significantly limits what I can say to the media about pending cases in which I am involved. If I were a prosecutor, I also would be subject to another amended rule, which would require me to exercise "reasonable care" to prevent investigators and other law enforcement personnel from making prohibited public statements.

I don't get many media calls about my cases, so the amendments likely won't affect my practice. What troubles me, however, is that the rules gagging lawyers are based on a premise that is contrary to our faith in the jury system.

The Illinois Supreme Court regulates lawyers' public comments because it believes that some statements threaten the fairness of pending cases. Under the new rule applicable to all lawyers, for example, attorneys will not be allowed to comment upon the credibility or expected testimony of witnesses, the nature of expected physical evidence or any evidence that likely will not be admissible at trial.

The obvious premise underlying this rule is that jurors and potential jurors will not be able to render fair verdicts if they are exposed to information other than that which is presented at trial. This premise is faulty for at least three reasons.

• First, in the case of pre-trial publicity, the premise incorrectly assumes that all potential jurors will have seen media accounts of the proceeding. History repeatedly has proven that many people qualified to be jurors do not routinely read newspapers or watch television news programs. Moreover, cases that generate considerable local publicity easily can be heard by jurors from outside the area.
• Second, the premise assumes that jurors will violate their promise to decide the case based on the evidence presented. Proponents of the new rules argue that jurors cannot disregard what they see in the news, but, as discussed above, the jurors ultimately selected likely will not have followed the case in the media. In addition, jurors in every case are expected to follow the judge's instructions, including the instruction to consider only the evidence presented. If the Illinois Supreme Court believes that jurors do not follow these instructions, our system has problems significantly greater than what lawyers say to the media.
• Third, the premise foolishly assumes that gagging the lawyers involved in a case will noticeably limit pre-trial publicity. If a case is high-profile enough to generate extensive media coverage, the media undoubtedly will include in their coverage statements and opinions from lawyers and commentators not involved in the case. Does anyone honestly think that the media would have covered the O.J. Simpson case less if the lawyers involved had been gagged?

Obviously, lawyers' free-speech rights cannot trump parties' rights to a fair trial. Similarly, though, the right to a fair trial cannot justify unnecessary restrictions on attorneys' speech. If these important constitutional rights are to co-exist, one cannot be sacrificed for the other.

The amended Illinois Supreme Court rules — like other such rules around the country — sacrifice free-speech rights in order to avoid the presumed difficulty of finding impartial jurors in high-profile cases. This sacrifice is unnecessary, because the presumption supporting it is exaggerated by a lack of faith in our jury system.

Even if finding impartial jurors in such cases were more difficult, however, bearing this difficulty is precisely the type of accommodation required by the First Amendment.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.