While political speech - speech intended to influence political decisions - is afforded the highest protection under the First Amendment, adjudicative speech - speech intended to influence court decisions - is regularly and systematically constrained by rules of evidence, canons of professional ethics, judicial gag orders, and similar devices. Yet court decisions can be as important, both to the litigants and to society at large, as political decisions. How then can our practice of severely constraining adjudicative speech be justified as consistent with First Amendment principles?
This Article attempts to answer that question in a way that is informative about both the adjudicative process and the nature of free speech under the First Amendment. I first explore, and reject, a number of possible theoretical justifications for the relative lack of protection afforded adjudicative speech. I then offer a more satisfactory explanation that relies in part on the connection between participation and political legitimacy. Restrictions on adjudicative speech, I argue, are necessary to preserve the opportunity for all litigants to fully and fairly participate in the decisionmaking process, and to maintain judicial subservience to general policies generated by processes (legislation, constitutional lawmaking, the common law) that are more politically legitimate than ad hoc judicial policymaking.
I then apply this justification of adjudicative speech restrictions to several recent controversies involving adjudicative speech. I contend that Legal Services Corp. v. Velazquez, in which the Supreme Court invalidated a congressional ban on the use of Legal Services Corporation funds to challenge state welfare laws, was correctly decided; that court rules prohibiting the citation of unpublished opinions are unconstitutional; and that the Court was wrong to strike down Minnesota's regulation of judicial campaign speech in Republican Party v. White.
Finally, the Article concludes by suggesting that the constraints regularly imposed on adjudicative speech, designed to preserve the political legitimacy of adjudication, imply the propriety of similar constraints on political speech where necessary to preserve the legitimacy of democratic politics. Thus I suggest that the regulation of campaign funding, mass media, and hate speech might be justifiable as means of promoting full and fair participation in political life.
Adjudicative Speech and the First Amendment, 51 UCLA L. Rev. 705 (2004)