Lawyer Speech in the Regulatory State

Abstract

The unusual role lawyer speech plays, both as the embodiment of law and as the fulfillment of professional obligations, sets it apart from that of other government employees. This article critiques two highly controversial split decisions from the United States Supreme Court ascribing minimal First Amendment protection to government lawyer speech — Connick v. Meyer and Garcetti v. Ceballos — and proposes a framework to be applied to the workplace assessment speech of government lawyers when acting as a check on the power of the regulatory state, so long as the speech does not run counter to professional ethics obligations.