No-Citation Rules as a Prior Restraint on Attorney Speech

The federal appellate courts promulgated selective publication and nocitation rules in the 1960’s as a means of alleviating the burden of an escalating caseload crisis. Selective publication rules permit courts to designate certain opinions as “unpublished,” while no-citation rules bar litigants from citing to, and simultaneously restrict the precedential value of, those opinions. Although these rules have arguably succeeded in their pursuit of judicial economy, courts and commentators have suggested myriad reasons why they may be constitutionally infirm. This Note focuses on the First Amendment implications of no-citation rules. Specifically, it maintains that these rules—which restrict attorneys from communicating certain information (the content of an unpublished opinion) in advance of the time that such communication is to occur (in a brief or at oral argument)—operate as an impermissible prior restraint on attorney speech.