In "Gentile v. State Bar of Nevada," the Supreme Court held a Nevada law prohibiting attorneys from making extra-judicial statements that could reasonably be expected to lead to prejudiced proceedings unconstitutionally vague. The safe harbor provision of New York's restriction on extra-judicial attorney speech seems to suffer from a similar deficiency, and must therefore be amended. To cure vagueness concerns, an amended rule should pay heed to the timing of prohibited public statements by attorneys, limiting speech restrictions to the month preceding the start of the trial. The amended rule should also include a clear and present danger standard to determine the degree of prejudice created by a lawyer's statements to justify restrictions on speech. This will provide the lawyer with better guidance as to what he can and cannot say, and will also err on the side of speech protection. After all, the conduct of the criminal justice system is the last place in which fundamental First Amendment freedoms should be lightly put aside.
Thomas Gibson and Diana Parker,
The Need for Fair Trials Does Not Justify a Disciplinary Rule that Broadly Restricts an Attorney's Speech,
20 Fordham Urb. L.J. 881
Available at: http://ir.lawnet.fordham.edu/ulj/vol20/iss4/4