cdTOCtest

J. Restriction of First Amendment Rights of Attorneys in
Criminal Trials

1. Contempt

In re Daniels, 219 N.J. Super. 550 (App. Div. 1987),
aff’d, 118 N.J. 51 (1990), cert. denied, 498 U.S. 951
(1991).

2. Pre-trial Publicity

Note: Although the constitutionality of the standard
in RPC 3.6 (“substantial likelihood of materially
prejudicing an adjudicative proceeding”) has not been
challenged, the New Jersey Supreme Court upheld the
constitutionality of the prior standard under DR7-107
(“reasonably likely to interfere with a fair trial”) in In re
Hinds, 90 N.J. 604 (1982).

The Court in Hinds held that the determination of
whether a particular statement is likely to interfere with
a fair trial involves a “careful balancing of factors,
including consideration of the status of the attorney, the
nature and timing of the statement, as well as the content
in which it was uttered.” DR7-107(D) applied not only
to the attorney of record in a criminal case, but also “to
an attorney who cooperates in what the defense on a
regular and continuing basis, provides legal assistance in
connection with the defense of a criminal charge, and
holds himself out to be a member of the defense team.”
A restriction on speech can survive judicial scrutiny under
the First Amendment only if the following two
conditions are satisfied: first, the limitation must further
an important or substantial government interest
unrelated to the suppression of expression, and second,
the restriction must not be greater than is necessary or
essential to the protection of the particular governmental
interest involved. The State has a substantial interest in
ensuring the fairness of judicial proceedings. This
interest is particularly acute in the context of a criminal
trial, where preserving fairness and integrity takes on a
constitutional dimension, because the defendant’s right
to a fair trial is guaranteed in the Sixth Amendment.
Attorneys in their special capacity as officers of the court
have a special responsibility to protect the administration
of justice. Finally, the Court held that since defendant
stands to lose his personal liberty, there are compelling
reasons for making every effort to preserve fairness in the
criminal trial, which interests DR7-107(D) clearly seeks
to effectuate. As to the second requirement, the Court
held that the reasonable likelihood standard is no broader
than necessary to protect the substantial governmental
interest involved. See In re Rachmiel, 90 N.J. 646 (1982);

see also Landmark Communications, Inc. v. Virginia, 435

U.S. 829 (1978).

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

In disciplinary proceeding, the Nevada Supreme Court

found that attorney who held press conference after client

was indicted on criminal charges violated Nevada

Supreme Court rule prohibiting lawyer from making

extrajudicial statements to press that he knows or

reasonably should know have a “substantial likelihood of

materially prejudicing” adjudicative proceeding. The

Supreme Court held that: (1) as interpreted by the

Nevada Supreme Court, the rule was void for vagueness;

and (2) the “substantial likelihood of material prejudice”

test satisfied the First Amendment.

In re Broadbelt, 146 N.J. 501 (1996). Municipal

court judge’s appearances as commentator on television

violated Canons of Code of Judicial Conduct prohibiting

judges from making public comment on pending or

impending court proceedings and lending prestige of

office to advance private interests of others. Held: Canons

did not violate judge’s First Amendment rights.

K. Challenges to Constitutionality of Ordinances

In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

(1996), liquor retailers brought declaratory judgment

action challenging state statutes prohibiting the

advertisement of liquor prices. The Supreme Court held

that: (1) state’s complete statutory ban on price

advertising for alcoholic beverages abridged speech in

violation of First Amendment; and (2) Twenty-First

Amendment did not qualify constitutional prohibition

against laws abridging freedom of speech embodied in

First Amendment and, thus, could not save state’s ban on

liquor price advertising.

In Church of Lukumi Bablu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993), the church challenged city

ordinances dealing with ritual slaughter of animals. The

Supreme Court held that: (1) ordinances were not

neutral; (2) ordinances were not of general applicability;

and (3) governmental interest assuredly advanced by the

ordinances did not justify the targeting of religious

activity.

In Ward v. Rock Against Racism, 491 U.S. 781

(1989), the sponsor of musical event at park band shell

sued city and city officials, challenging constitutionality

of use guidelines for band shell. Held: Municipal noise

regulation designed to ensure that music performances in

band shell did not disturb surrounding residents, by