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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).



  1. 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
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