Nolo on TenantNet
Return to: Nolo on TenantNet Index
A First Amendment Atrocity
by Steve Elias
Copyright © 1993 Nolo Press
The First Amendment Freedom of Speech provision is supposed to keep
information flowing smoothly. But sometimes it fails, as is currently
true with
lawyers using the concept of unauthorized practice of law (UPL) to
intimidate,
fine and sometimes imprison Americans who speak and write about the law.
UPL laws -- mostly adopted in the 1930s by lawyer-dominated state
legislatures to
fend off competitors -- prohibit anyone but a licensed lawyer from
practicing
law. Providing legal advice -- information delivered in a specific
context -- is
one of several activities that is outlawed. So, only a lawyer can tell a
person
where to file for bankruptcy, how much child support he or she owes, or
what to
put on a court form. In addition, courts assert an independent right --
called an
inherent power -- to use the threat of contempt of court to punish
people they
find guilty of unauthorized legal speech.
Consumer protection is the reason usually advanced for the legality of
UPL laws.
Given the strong protection the First Amendment affords speech, this
rationale is
immediately suspect. Certainly there is no other area of our lives where
the
government steps in and protects us from wrong information by entirely
eliminating a class of information providers. For example, a non-doctor
is free
to offer advice about health as long as it is clear that he isn't a
doctor. A
layperson may offer psychological advice to her heart's content, as long
it's
clear she isn't a psychologist. And anyone can hang out a shingle to
help
businesses add, subtract and maintain accounting records as long as they
don't
misrepresent their education or other qualifications.
When you realize that legal advice is really about using a branch of
government,
it seems just plain preposterous that lawyers can lay claim to the
monopoly. But
preposterous or not, UPL statutes are currently being used to jail
non-lawyers
who counsel people in what court to use and how to fill out garden
variety forms.
As you might suspect, suppressing legal speech has had unhappy
consequences.
Keeping legal information in the hands of lawyers has kept most of the
American
public ignorant about laws -- a dangerous state of affairs for a
democracy. In
addition, this censorship has resulted in at least 150 million Americans
-- who
can't afford to buy legal information from lawyers -- being locked out
of the
legal system.
At the heart of the First Amendment Freedom of Speech Clause are these
basic
tenets:
- Most types of speech including ideas about politics and government
are
fully protected.
- Some types of speech -- such as pornography and soliciting someone
to commit
a crime -- are not protected.
- Government may not restrict "fully protected speech" unless it has
a
compelling interest for doing so, and
- Limits placed on fully protected speech because of a compelling
interest must
be no more restrictive than are necessary to fulfill the interest being
protected.
There are a few situations where the courts will approve restrictions
placed on
fully protected speech, but almost never will a speaker be silenced in
advance,
unless its very clear that the speech will immediately harm others, such
as
causing a riot. And it is also rare for speech to be punished on the
basis of its
content. Here, it's the old You Can't Yell Fire in a Crowded Theater
Test.
Giving information about how to use a branch of government such as the
courts
should never be placed in the same category as causing a riot or yelling
fire in
a crowded theater. The record on legal advice by non-lawyers is clear;
almost
never are UPL prosecutions based on harm caused by wrong legal advice.
And
numerous academic and bar association studies have similarly failed to
turn up
those harmed by wrong advice.
Occasionally, a few types of expression such as obscenity or child
pornography --
considered to be utterly without redeeming social value -- are removed
altogether
from First Amendment protection. Other types of speech such as
advertising are
given somewhat less protection. But the First Amendment has consistently
been
held to fully protect legal speech.
Although fully protected speech can never, constitutionally, be censored
outright, government can regulate the time, place and manner in which
such speech
is delivered -- provided that such regulation is as narrow as possible
and
consistent with the reason for the regulation. However, UPL laws, which
are used
against anyone who provides any type of legal information anywhere at
any time in
any manner, are obviously as broad as they are vague. Even some lawyers
will
admit that the UPL laws violate the First Amendment's Freedom of Speech
Clause.
But in the next breath, these same lawyers will argue that, even if this
is true,
the courts have the inherent constitutional right to regulate the legal
profession and that such regulation would be meaningless if non-lawyers
could
also provide legal information.
This argument ignores the fact that the main role of lawyers is to serve
as
intermediaries for people who wish to use the courts. Both the courts
and society
arguably have an interest in regulating who can serve as those
intermediaries.
For example, regulating who can label themselves as lawyers is
undoubtedly
reasonable. But requiring a lawyer to pass an exam and meet certain
qualifications such as not being a felon is a far cry from prohibiting
everyone
else from dealing with legal information. This is especially true in a
society
that guarantees people the right to represent themselves.
Again, whatever rationale there may be for regulating lawyers in their
intermediary role, there is no reason to prevent non-lawyers from
providing legal
information to people who have freely chosen to dispense with an
intermediary.
Many may wonder why such an obvious free speech violation is
consistently upheld.
One reason immediately surfaces. The people who think most about the
First
Amendment are lawyers, and lawyers know in their hearts that if legal
information
is allowed to escape their control, their ability to charge high fees
for very
basic personal legal help will end with a crash.
There may be good news in all this. The legal profession has a long
tradition of
fighting for the First Amendment rights of a dizzying variety of people
and
groups. Once it is understood that the First Amendment rights of pro se
litigants
and non-lawyers who give them legal information are being trampled on,
there is
reason to hope that a few lawyers will bravely step to the fore. Perhaps
even the
ACLU, which previously has been willing to fight for the free speech
rights of
highly unpopular groups, will be willing to help restore the free flow
of legal
information.
Side Bar--Legal Advice Is Fully Protected
Speech
In 1989, a First Amendment challenge was brought to a public
university's rule
essentially banning from the dormitories anyone whose motive in entering
was to
make a profit. The U.S. Supreme Court held that the ban might violate
the First
Amendment because it also prohibited such fully protected speech as
legal advice
and medical consultations as well as commercial speech.
In holding that legal advice is not commercial speech, the court noted:
"[W]hile these examples consist of speech for a profit, they do not
consist of
speech that proposes a commercial transaction, which is what defines
commercial
speech. . . . Some of our most valued forms of fully protected speech
are uttered
for a profit." (Board of Trustees, State Univ. of New York v. Fox, 492
U.S. 469.)
Related Products:
Books
The above link is connected to Nolo's on-line store where you will
find a detailed description of each product.
The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission.
If you find them of value, we encourage you to visit Nolo Press at their web site http://www.nolo.com.
If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.
|
