Criminal and First Amendment Issues - U.S. Second Circuit
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Criminal and First Amendment Issues

In US v. DeAndrade, No. 08-4815, the court affirmed defendant's drug conspiracy conviction and sentence, holding that 1) a brief and fleeting comment on the defendant's incarceration during trial, without more, did not impair the presumption of innocence to such an extent that a mistrial is required; 2) the government never relied upon certain challenged testimony, and a curative instruction could easily have done more harm than good by focusing the jurors on two allusive references that they otherwise might have missed or construed as innocuous; and 3) defendant's sentence was unaffected by his juvenile drug offense.

Alexander v. Cahill, No. 07-3677, concerned a First Amendment challenge to attorney advertising rules issued by the New York Appellate Division barring, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results, and establishing a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media.

The court of appeals affirmed in part the district court's summary judgment order invalidating most of the content-based restrictions and upholding the thirty-day moratorium, on the grounds that the content-based restrictions in the disputed provisions regulated commercial speech protected by the First Amendment.  However, the Second Circuit reversed in part, holding that 1) the prohibition on advertising mentioning fictitious firms was valid because it targeted potentially misleading advertising; and 2) as to the moratorium, there was a substantial state interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.

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