Rule for prosecutors keeps public comment to a minimum

From the Spring 2001 issue of The News Media & The Law, page 58.

A federal court in Illinois dismissed a free speech claim over a rule limiting prosecutors’ statements, finding that lawyers who claimed their speech was restricted failed to show that they would actually be prosecuted for any statements or that they would suffer any imminent harm. The case has ramifications for the news media because law enforcement officials, from district attorneys to police officers, often rely on professional conduct guidelines when refusing to provide information about a case even in times when commenting is permissible.

The case arose from rules that restrict extrajudicial statements by criminal prosecutors. The Illinois Supreme Court in March 2000 amended its Rules of Professional Conduct — rules that govern the ethical conduct of attorneys — and modified Rules 3.6 and 3.8 pertaining to pre-trial publicity. Rule 3.6, as amended, imposed restrictions on prosecutors requiring that they refrain from making comments that “would pose a serious and imminent threat to the fairness” of a trial. Rule 3.8 required prosecutors to take reasonable steps to prevent others who assist the prosecutor, such as the police or investigators, from making statements that the prosecutor would be forbidden from making.

After the amended rules went into effect in March 2000, 10 prosecutors filed suit in federal court seeking an injunction to prevent the enforcement of the new rules. The prosecutors argued that the rules infringe upon their First Amendment rights.

The court dismissed the lawsuit on procedural grounds, finding that the prosecutors failed to demonstrate that they wanted to say something that would be prohibited. Jurisdictional rules require that there be an “actual case or controversy” before the court, or else the case must be dismissed for lack of jurisdiction. In this case, the court found that there was no actual controversy because the prosecutors could not identify any statements they wanted to make that would have violated the rules.

However, in its written opinion, the court took the opportunity to remind prosecutors that the U.S. Supreme Court has held that it is constitutional to restrict attorney’s speech if the speech would affect the fairness of a trial. In Gentile v. State Bar of Nevada, the court considered the constitutionality of extrajudicial statements by lawyers. Even though the court struck down the particular law in the Gentile case, the court also stated that restrictions on extrajudicial statements by lawyers could be constitutional in some circumstances because the state’s interest in preserving a fair trial was so great.

The court in Illinois clarified that it was not ruling that the state rules were constitutional; it merely found that it was possible that the rules could be interpreted in a way that would be constitutional. Thus, the court did not feel obligated to enjoin their enforcement.

Don Craven, an attorney who represents the Illinois Press Association, said that the court’s ruling was “very much a procedural decision,” and the new rules have had only a sporadic effect on newsgathering.

Craven said, “when the rules first came out, there was what some have described as an overreaction by the prosecutors. It shut down newsgathering from police records.” He said prosecutors were wary of doing anything that might be interpreted as violating the rules, and they were not interested in being guinea pigs for a constitutional test case.

But some prosecutors challenged the law, and people have become accustomed to the new rules, according to Craven. The rules are “a bar to obtaining information and they have been a problem, but it has become less of a problem,” he said. Although police and prosecutors will provide the media with some information, Craven said they can use the rules “as an excuse on a case by case basis to not give us records.” — AG