It should go without saying that attorneys need to watch what they say in the courtroom. So doing is critical to being an effective advocate and maintaining client confidence.
But it goes beyond questions merely of effectiveness, for the courtroom is also a place where an attorney’s first amendment rights are uniquely limited.
You see, the courthouse (and especially the courtroom) is what’s considered a “non-public forum.” Unlike public fora, where citizens have broad discretion to exercise their First Amendment rights, the government is free to restrict most expressive activity from non-public fora. And this is particularly true of courtrooms; as one court (naturally!) observed, the courtroom is a place “where the the First Amendment rights of everyone (attorneys included) are at their constitutional nadir.” 1
Judges have broad discretion to maintain order and decorum in their courtrooms. Statements, gestures and other forms of expression (clothing, posters, etc.) may be prohibited – or punished as contempt – by judges with impunity, so long as so doing has a reasonable relation to the judge’s interest in maintaining courtroom order and decorum.
- Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir 2005); the decision also contains a detailed discussion of the various ways that the First Amendment rights of attorneys are constrained in the courtroom. ↩