The Rights of Lawyers and Students

July 02, 1995

The Supreme Court has weakened the First Amendment rights and Fourth Amendment rights of two groups of citizens. In one case, we believe the court was wrong, though the citizens who won are not popular and the right they exercise isn't, either. In the other case, we believe the court was correct, though the right the court weakened -- and the group exercising it -- is widely treasured.

By a 5-4 vote, the court upheld the Florida bar's 30-day ban on personal-injury lawyers from making direct-mail solicitations of injury victims after an accident. The court said these "scavenger lawyers" are engaged in conduct "universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families."

But many people, including four justices of the Supreme Court, disagree.

Justice Anthony Kennedy wrote for the court majority, "I take it to be uncontroverted that when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses, and preserve evidence. Vital interests in speech and expression are, therefore, at stake when by law an attorney cannot direct a letter to the victim or the family explaining this simple fact and offering competent legal assistance. Meanwhile, represented and better informed parties, or parties who have been solicited in ways more sophisticated and indirect, may be at work. Indeed, these parties, either themselves or by their attorneys, investigators, and adjusters, are free to contact the unrepresented persons to gather evidence or offer settlement."

In other words, some lawyers are at work on disaster and accident settlements before the ambulance chasers get started. Commercial speech, including lawyer advertising, has been protected by the First Amendment for some time now, and there was no excuse for cutting it back.

In the second case, the court upheld, 6-3, the right of a school to require student athletes to submit to drug testing -- all students athletes, not just those suspected of using drugs. School officials can do this without obtaining search warrants, the court determined.

This generalized search (even with a warrant), lacking particularized suspicion, had been widely practiced by the British in America. It was probably the greatest offense to liberty in the eyes of those who wrote and voted for the Bill of Rights.

But the Supreme Court has consistently ruled that school children have somewhat limited Fourth Amendment rights. In this case, there is no criminal dimension to the policy. Students who refuse to be tested or who test positively just lose -- temporarily -- their right to participate in athletics. It seems to us (as it did to almost all parents at the school involved) an acceptable way to deal with a serious problem.

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