The Volokh Conspiracy - A Troubling News Tidbit:

Today's N.Y. Times reports:

The lawyer for James Barbour, a Broadway actor accused of sexually molesting a young woman in 2001, when she was 15 and he 31, was barred yesterday from setting up a hot line asking men to come forward with accounts of being falsely accused of sexual harassment by the accuser in this case, who is now 20. The lawyer, Ronald Fischetti, said in State Supreme Court that the district attorney had set up a hot line soliciting other claims against his client, and that he wanted to turn the tables. But Justice Micki A. Scherer denied his request, and ordered both sides not to discuss the case.

This strikes me as posing both First Amendment and Sixth Amendment problems. I'm not an expert on this corner of First Amendment law — I know judges have often been seen as having substantial power to restrict the speech of ligitants, including criminal defendants, as well as their lawyers. Some restrictions on lawyers have been generally upheld by the Supreme Court in Gentile v. State Bar (1991), following a longstanding tradition of treating lawyer speech about pending cases as especially subject to judicial supervision. But even Gentile doesn't hold lawyer speech to be categorically unprotected, and I'm not sure that this sort of speech would be punishable under Gentile.

Moreover, while some courts have extended the holding to the litigants themselves, including defendants (who, unlike civil plaintiffs or prosecutors, can't be seen as having voluntarily incurred some obligations in exchange for some benefit, such as a government job or access to the court system). It seems to me there's no constitutional justification for any such speech restriction: Even if Barbour's lawyer may be barred from engaging in such a search, Barbour's friends or business associates should be free to do this, and pass the information along to Barbour and his defense team. On the other hand, I should warn readers that I haven't read much of the lower court caselaw on the subject (and there is a good deal of such caselaw), so my opinion here is somewhat tentative.

As to the Sixth Amendment: The defendant seeks information that might prove exculpatory to him. True, seeking this information may well be quite annoying to the complainant (even if the complainant has never falsely accused anyone of sexual harassment before, the public solicitation for such stories may cast her veracity in doubt with some), and may discourage future complainants from coming forth. But I don't see that as an adequate justification for keeping the defense from discovering important exculpatory evidence, whether or not the prosecution has sought comparable evidence on the other side.

But I'd love to hear from readers who know more than I do about this subject — both more about the facts of this incident, and more about this area of the law.

	[Eugene Volokh, December 21, 2006 at 3:35pm] Trackbacks A Troubling News Tidbit: Today's N.Y. Times reports: The lawyer for James Barbour, a Broadway actor accused of sexually molesting a young woman in 2001, when she was 15 and he 31, was barred yesterday from setting up a hot line asking men to come forward with accounts of being falsely accused of sexual harassment by the accuser in this case, who is now 20. The lawyer, Ronald Fischetti, said in State Supreme Court that the district attorney had set up a hot line soliciting other claims against his client, and that he wanted to turn the tables. But Justice Micki A. Scherer denied his request, and ordered both sides not to discuss the case. This strikes me as posing both First Amendment and Sixth Amendment problems. I'm not an expert on this corner of First Amendment law — I know judges have often been seen as having substantial power to restrict the speech of ligitants, including criminal defendants, as well as their lawyers. Some restrictions on lawyers have been generally upheld by the Supreme Court in Gentile v. State Bar (1991), following a longstanding tradition of treating lawyer speech about pending cases as especially subject to judicial supervision. But even Gentile doesn't hold lawyer speech to be categorically unprotected, and I'm not sure that this sort of speech would be punishable under Gentile. Moreover, while some courts have extended the holding to the litigants themselves, including defendants (who, unlike civil plaintiffs or prosecutors, can't be seen as having voluntarily incurred some obligations in exchange for some benefit, such as a government job or access to the court system). It seems to me there's no constitutional justification for any such speech restriction: Even if Barbour's lawyer may be barred from engaging in such a search, Barbour's friends or business associates should be free to do this, and pass the information along to Barbour and his defense team. On the other hand, I should warn readers that I haven't read much of the lower court caselaw on the subject (and there is a good deal of such caselaw), so my opinion here is somewhat tentative. As to the Sixth Amendment: The defendant seeks information that might prove exculpatory to him. True, seeking this information may well be quite annoying to the complainant (even if the complainant has never falsely accused anyone of sexual harassment before, the public solicitation for such stories may cast her veracity in doubt with some), and may discourage future complainants from coming forth. But I don't see that as an adequate justification for keeping the defense from discovering important exculpatory evidence, whether or not the prosecution has sought comparable evidence on the other side. But I'd love to hear from readers who know more than I do about this subject — both more about the facts of this incident, and more about this area of the law.