Opinion: As the Giuliani Case Goes Forward, Courts Should Think Deeply About the First Amendment

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Professor Bruce Green, along with co-author Rebecca Roiphe, examines the temporary suspension of Rudy Giuliani’s law license and the First Amendment in an op-ed for The Washington Post.

A New York appellate court has temporarily suspended former mayor Rudolph Giuliani’s law license, writing that he had made “demonstrably false and misleading statements to courts, lawmakers and the public at large.” Just as lawyers who participated in the Watergate scandal were held to account, so too should former president Donald Trump’s lawyers pay a price if they engaged in illegal or unethical conduct. As this case continues, however, the disciplinary agency and courts should be careful not to chill lawyers’ political speech.

As the case goes forward, courts should think more deeply about the First Amendment question. It is unlikely that the public credits media personalities who are attorneys more than others, or that, when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession. It seems likely, for instance, that the harm from Giuliani’s lies resulted from his proximity to the former president rather than his status as a lawyer.

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

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