Chief Judge Janet DiFiore

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” —George Washington

This year's Law Day theme—Free Speech, Free Press, Free Society—challenges us to consider the relationship between the First Amendment and the rule of law. In only 45 words, the First Amendment of the United States Constitution protects freedom of speech, press, religion, assembly and petition. These cherished, uniquely American rights are at the heart of our democratic tradition and underscore our commitment to an open culture that values human expression and conscience.

Freedom of speech and press are the great enablers of democratic participation, providing the means by which our citizenry can debate the issues of the day, evaluate the performance of our elected representatives, cast our votes and help shape the direction of our nation's policies and laws. As the Supreme Court stated: “There is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs.” Landmark Communications v. Virginia, 435 U.S. 829, 838 (1978).

Furthermore, as George Washington suggested, the First Amendment is also an important defense against secret government, authoritarianism and tyranny. Indeed, a free press serves as the watchdog of our democracy, reporting on important events and issues, identifying wrongdoing and injustice and ensuring transparency and accountability in all areas of our society.

As judges and lawyers who value the rule of law and understand the power and purpose of the First Amendment, we must be vigilant in responding to new challenges created by the rise of the Internet and social media, and by the powerful ways in which they are influencing our public discourse. The growing tendency of people to consume news and information from media outlets which confirm their existing viewpoints is politicizing our debate on public issues. In this climate, we have seen public attacks on judges by political leaders which have gone far beyond disagreement with the merits of judicial decisions to include personal invective designed to intimidate judges and undermine their legitimacy and authority in the public eye.

As members of the only non-political branch of government, judges generally are ethically prohibited from responding to criticism or discussing the merits of their decisions. Lawyers, however, face no such restriction. Indeed, as the rule of law's ultimate defenders, lawyers have a special responsibility to speak out in defense of judicial independence and push back resolutely against those who seek to politicize the judiciary and foment disrespect for judges. We cannot allow the judiciary to become a casualty of partisan politics and the culture wars.

Similarly, attacks on the media branding it the enemy of the people destabilize our republican form of government. Just as an impartial and independent judiciary capable of protecting our fundamental rights and liberties is an indispensable pillar of our tripartite system of government, so too is a free press. As Thomas Jefferson stated in 1786: “Our liberty depends on the freedom of the press, and that cannot be limited without [liberty] being lost.”

It is increasingly urgent for the legal profession, the press and our schools and educators to work together to improve civic knowledge and galvanize public support for an independent and impartial judiciary and a free and independent press. A public lacking basic literacy about the roles and functions of the three branches of government and constitutional imperatives like judicial independence will be vulnerable to propaganda and find it difficult to distinguish between appropriate and inappropriate criticism of our courts. Judges are not immune from criticism, of course, but the public needs to understand that there is a critical difference between disagreeing with a decision and saying a judge was wrong on the merits and making personal attacks or intimidating statements calculated to delegitimize judicial authority and influence future decisions.

I am encouraged by the fact that Hank Greenberg, New York State Bar Association President-Elect, shares my concerns, and we have committed to bring the Bench and Bar together to collaborate on strategies and programs to advance public education on the rule of law. Living as we do in the Internet age of snapshots and soundbites, communicating the practical importance of complex implicit norms like “checks and balances” will not be an easy task, but we truly believe that no element of our society is better positioned to lead on these issues and work productively with schools and the media than the Bar and Bench. Together, we can and must develop concrete, implementable strategies to remind the American public of how and why our rights and freedoms are dependent on an independent judiciary and a free and independent press.

We need simple and direct messages like the one I read recently where a three-legged stool was used to describe the unique design and stability of our system of government, including what would happen to the structure if one or both of the executive and legislative branches decided to kick out the third leg. We also need to sensitize the media on how its coverage can influence public perceptions. For example, when reporting on high-profile appellate rulings and trials, the media's tendency to routinely identify the judges' political party affiliations or to label them as “Obama” or “Bush” judges further politicizes the adjudicative function in the public eye and diminishes confidence in the impartiality and independence of judges.

On this Law Day devoted to freedom of speech and press, we find the rule of law under pressure in many ways, from the rapidly changing means by which we consume information and express our views in the age of the Internet to the decline in civic knowledge among our citizenry to the noxious efforts to politicize the judiciary and undermine public confidence in the impartiality of judges. Our legal profession is challenged to consider what we should be doing to promote an informed electorate that understands the value of judicial independence and the rule of law. As lawyers who swore an oath to uphold the Constitution, it is up to us, individually and collectively, to speak out against corrosive attacks on the judiciary. And, just as important, it is up to us to assume a broader leadership role in working with the media and our schools to make sure that every American understands that we cannot have a free society without an impartial and independent judiciary or a free and independent press.