Ideology, <I>Gentile</I> and Pretrial Attorney Speech: A Response to Professor Tarkington

Abstract

In this brief response to Professor Margaret Tarkington’s article Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity, (66 Fla. L. Rev. 1873 (2014)), I will sketch out an argument that the allocation of free speech rights between prosecutors and defenders, as well as the balance struck between the right of free speech and right to a fair trial, is determined chiefly by ideology and political considerations. In Part I, I will review Professor Tarkington’s description of the problems posed by current approaches used to regulate attorney pretrial speech. In Part Two, I will examine Professor Tarkington’s solution to these problems. In Part III, I will discuss why ideology trumps doctrine when it comes to attorney speech regulation in the criminal justice context. Finally, I conclude that any successful attempt to reform laws regulating attorney speech must expressly confront the ideological considerations that shape them.