Strauss: Fight cases in court, not media

Lawyers representing criminal defendants should not fight their battles in the court of public opinion, says David Strauss, the Harry N. Wyatt Professor in the Law School.

There is considerable debate about whether lawyers should discuss their cases with the media. Strauss, an expert in constitutional law, argues that out-of-court advocacy should be limited and that such limitations would not necessarily violate free speech or hamper the defense.

"The issue is said to be a choice between the values of free speech -- informing the public about matters of public importance -- and the need to ensure that trial proceedings are not unduly affected by pretrial publicity," Strauss said. "It seems to me we should turn down the temperature on this free-speech/fair-trial debate. I don't think we lose anything by restraining out-of-court advocacy in some circumstances."

In many high-profile cases, judges order that the lawyers involved stay silent about the cases to the media. Such "gag orders" are usually controversial. Strauss argues in a soon-to-be published paper for the University of Chicago journal Legal Forum that "the stakes are lower than people think."

Defense lawyers in cases that generate publicity, including those involving politicians and celebrities, are most likely to want to defend their client in the court of public opinion. But doing so creates an unfair situation for all defense lawyers, Strauss says.

"As long as out-of-court advocacy is common, a lawyer who refuses to speak outside the courtroom will risk damaging his or her client's interests by appearing not fully to believe in the client," Strauss writes. "If out-of-court statements are allowed, an attorney's refusal to engage in an out-of-court public relations campaign may be taken to suggest a lack of enthusiasm for the client's case."

But arguing a case in the media doesn't necessarily help a defendant, according to Strauss. "Things that lawyers say when they are hired by defendants are taken by everyone with a grain of salt and don't really contribute to the public debate," he said.

Some people argue, though, that if lawyers are unable to talk to the media, some wrongs, such as governmental abuse, will be kept from the public. Strauss maintains that statements by a lawyer hired by a criminal defendant are unlikely to have much of a beneficial impact on public debate.

"If the government is doing something abusive, there's a chance it will come to light in the press or in the judicial proceedings themselves," he said. "A formal judicial finding of police or prosecutorial misconduct is likely to have a far greater impact on public consciousness than speech by a lawyer who is the hired spokesperson for a criminal defendant -- especially because criminal defendants usually have every interest in claiming abuses where none exist."

Strauss argues that legal ethics rules should stress that it is not part of a defense lawyer's job to talk to the press -- it is better for the client, and it doesn't sacrifice the media's ability to ferret out a story.

"Often clients are best served by low-profile defense," he said, "not by publicity campaigns."