Virginia Supreme Court restrictions on the right of lawyers to comment publicly on cases other than criminal jury trials were ruled unconstitutional today by the 4th U.S. Circuit Court of Appeals.
All seven of the appeals court judges agreed that lawyers should be free to talk publicly about most pending cases unless their comments would create a "clear and present" threat to fair trials.
Five of the judges ruled, however, that the state has a right to apply more drastic free-speech restraints on lawyers in criminal cases being tried by juries. In such cases, they upheld the state court rule prohibiting lawyers' comments if there is a "reasonable likelihood" they will prevent a fair trial.
The American Civil Liberties Union hailed the federal court ruling as "a really good decision."
Chan Kendrick, executive director of the ACLU's Virginia chapter, said it would free lawyers to talk publicly about 95 percent of judicial litigation. He estimated that only about 5 percent of court cases involve jury trials of criminal charges.
By preserving Virginia's restriction on comments about pending criminal cases to be tried before juries, the 4th Circuit Court disagreed with the only other federal appellate decision on other federal appellate decision on the issue. The 7th Circuit threw out such restrictions in a 1975 case.
Alexandria lawyer Philip J. Hirschkop, who brought the suit, said today that the most recent American Bar Association rule follows the 7th Circuit decision. The rules in Maryland, he said, are as restrictive as those in Virginia, overturned in large part today, while those in the District of Columbia are somewhat less restrictive.
Hirschkop said in an interview that he would have won on all points, including criminal trials by jury, had Chief Judge Clement F. Haynsworth Jr. permitted the case to be decided by the panel of three judges that originally heard it.
Haynsworth sat on that panel with Judges Harrison L. Winter and John D. Butzner Jr. Winter and Butzner dissented in part from today's ruling, saying that even in criminal trials by juries nothing more restrictive than "clear and present threat" standard should be applied.
A hearing by the full court was ordered before the opinion of the panel controlled by Winter and Butzner was handed down.
Hirschkop said he is "inclined to appeal" the restrictions applied to jury trials in criminal cases, but added, "Because of the makeup of the present Supreme Court, I will have to think about it."
Hirschkop, counsel in many civil rights cases in Virginia and elsewhere, had challenged the Virginia Supreme Court ruling as an unconstitutionally broad restraint on his right of free speech.
The appeals court noted that Hirschkop had been named in 11 of 22 complaints filed with the Virginia State Bar from 1965 to 1975 charging violations of the rule restriction lawyer comments on cases. The bar is a state agency charged with enforcing rules approved by the Supreme Court that govern the practice of law in Virginia.
The executive committee of the bar eventually made an unusual admission that the complaints against Hirschkop were groundless and were filed by people who "disagreed with the causes supported and espoused" by the Alexandria lawyer.
Hirschkop nevertheless continued his challenge of the bar rule, contending that it still posed a threat to him in the future. U.S. District Court Judge D. Dortch Warriner upheld the restrictions after a trialin Richmond. His decision was reversed today except as it applied to criminal jury trials.