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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
lawyers using the concept of unauthorized practice of law (UPL) to
fine and sometimes imprison Americans who speak and write about the law.
UPL laws -- mostly adopted in the 1930s by lawyer-dominated state
fend off competitors -- prohibit anyone but a licensed lawyer from
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
where to file for bankruptcy, how much child support he or she owes, or
put on a court form. In addition, courts assert an independent right --
inherent power -- to use the threat of contempt of court to punish
find guilty of unauthorized legal speech.
Consumer protection is the reason usually advanced for the legality of
Given the strong protection the First Amendment affords speech, this
immediately suspect. Certainly there is no other area of our lives where
government steps in and protects us from wrong information by entirely
eliminating a class of information providers. For example, a non-doctor
to offer advice about health as long as it is clear that he isn't a
layperson may offer psychological advice to her heart's content, as long
clear she isn't a psychologist. And anyone can hang out a shingle to
businesses add, subtract and maintain accounting records as long as they
misrepresent their education or other qualifications.
When you realize that legal advice is really about using a branch of
it seems just plain preposterous that lawyers can lay claim to the
preposterous or not, UPL statutes are currently being used to jail
who counsel people in what court to use and how to fill out garden
As you might suspect, suppressing legal speech has had unhappy
Keeping legal information in the hands of lawyers has kept most of the
public ignorant about laws -- a dangerous state of affairs for a
addition, this censorship has resulted in at least 150 million Americans
can't afford to buy legal information from lawyers -- being locked out
At the heart of the First Amendment Freedom of Speech Clause are these
- Most types of speech including ideas about politics and government
- Some types of speech -- such as pornography and soliciting someone
a crime -- are not protected.
- Government may not restrict "fully protected speech" unless it has
compelling interest for doing so, and
- Limits placed on fully protected speech because of a compelling
be no more restrictive than are necessary to fulfill the interest being
There are a few situations where the courts will approve restrictions
fully protected speech, but almost never will a speaker be silenced in
unless its very clear that the speech will immediately harm others, such
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
Giving information about how to use a branch of government such as the
should never be placed in the same category as causing a riot or yelling
a crowded theater. The record on legal advice by non-lawyers is clear;
never are UPL prosecutions based on harm caused by wrong legal advice.
numerous academic and bar association studies have similarly failed to
those harmed by wrong advice.
Occasionally, a few types of expression such as obscenity or child
considered to be utterly without redeeming social value -- are removed
from First Amendment protection. Other types of speech such as
given somewhat less protection. But the First Amendment has consistently
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
is delivered -- provided that such regulation is as narrow as possible
consistent with the reason for the regulation. However, UPL laws, which
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
admit that the UPL laws violate the First Amendment's Freedom of Speech
But in the next breath, these same lawyers will argue that, even if this
the courts have the inherent constitutional right to regulate the legal
profession and that such regulation would be meaningless if non-lawyers
also provide legal information.
This argument ignores the fact that the main role of lawyers is to serve
intermediaries for people who wish to use the courts. Both the courts
arguably have an interest in regulating who can serve as those
For example, regulating who can label themselves as lawyers is
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
else from dealing with legal information. This is especially true in a
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
information to people who have freely chosen to dispense with an
Many may wonder why such an obvious free speech violation is
One reason immediately surfaces. The people who think most about the
Amendment are lawyers, and lawyers know in their hearts that if legal
is allowed to escape their control, their ability to charge high fees
basic personal legal help will end with a crash.
There may be good news in all this. The legal profession has a long
fighting for the First Amendment rights of a dizzying variety of people
groups. Once it is understood that the First Amendment rights of pro se
and non-lawyers who give them legal information are being trampled on,
reason to hope that a few lawyers will bravely step to the fore. Perhaps
ACLU, which previously has been willing to fight for the free speech
highly unpopular groups, will be willing to help restore the free flow
Side Bar--Legal Advice Is Fully Protected
In 1989, a First Amendment challenge was brought to a public
essentially banning from the dormitories anyone whose motive in entering
make a profit. The U.S. Supreme Court held that the ban might violate
Amendment because it also prohibited such fully protected speech as
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
speech that proposes a commercial transaction, which is what defines
speech. . . . Some of our most valued forms of fully protected speech
for a profit." (Board of Trustees, State Univ. of New York v. Fox, 492
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