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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 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.)

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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.

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