Response to Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity
Attorneys are officers of the court and essential to the proper functioning of the criminal justice system. In that system, they represent opposing parties with conflicting, indeed adversarial, interests. Should the speech of attorneys be regulated in the American criminal trial process? If so, how can attorney speech be regulated in ways that do not intrude on attorneys’ First Amendment rights or defendants’ right to a fair trial? Can a balance be struck between the Sixth Amendment right to a fair trial and the First Amendment right to free speech that does not impair the ability of either prosecutors or defense attorneys to function as advocates for their respective clients? These are the questions that Professor Margaret Tarkington sets out to answer in her article, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity.