High court hints at curbing lawyers' remarks outside courts

April 17, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A scene outside courthouses during almost every major trial -- lawyers talking to the news reporters and cameras about their side of the case -- could become rarer in the future, if hints at a Supreme Court hearing Monday turn into reality.

A barrage of sharp questions from the justices greeted a Texas law professor who was there to defend the right of attorneys to speak out in public to counteract what police and prosecutors say about their clients' alleged crimes.

The court has never ruled on the scope of lawyers' constitutional right to discuss a case publicly while it is pending in court.

Michael E. Tigar, a University of Texas professor, contended that no state should be allowed to curb a lawyer's free speech rights unless it could show that what the lawyer said posed "a clear and present danger" to a fair trial.

Mr. Tigar told the court that states typically restrict lawyers' out-of-court remarks far more than that, threatening discipline if an attorney says something that has a "substantial likelihood" of affecting a case.

Justice Sandra Day O'Connor pressed the professor to say whether that meant that nearly all state rules on lawyers' speech rights were unconstitutional, and he said it did.

That reply set off a series of tough questions from Justices Anthony M. Kennedy, Antonin Scalia, David H. Souter and Byron R. White, all picking apart Mr. Tigar's plea and suggesting that a majority of the court may be strongly sensitive to lawyers' public critiques of pending cases.

At one point, Justice Scalia asked whether Mr. Tigar was urging constitutional protection even for lawyers who made "a circus" of a case by staging a dramatic version of it before the actual trial began. The professor said he was.

The most aggressive questioning came from Justice White, who suggested to the professor that his plea amounted to a claim that "any lawyer can deliberately speak out before a trial began, and say things he knows and he intends to prejudice the right to a fair trial . . . a constitutional right to attempt to subvert the trial process."

The professor had barely begun to deny that that was his position when the justice cut him off with further accusations of taking an extreme position.

Mr. Tigar represents a well-known Las Vegas defense lawyer, Dominic P. Gentile, who was privately reprimanded by the Nevada State Bar for remarks he made at a press conference three years ago while he was defending a businessman.

The businessman, Grady Sanders, was accused of stealing money and drugs from a safety deposit box used by Las Vegas police at his vault company. At his press conference, Mr. Gentile insisted his client was innocent and pointed the finger of guilt at police officers.

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