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10 Nev. L.J. F. 1 (2025)

handle is hein.journals/nvljform10 and id is 1 raw text is: FLAGRANT FOULS: THE FIRST AMENDMENT, LEGAL SPEECH, AND ATTACKS ON LAW FIRMS AND THE RULE OF LAW Raymond H. Brescia* This Essay explores the Trump Administration's unprecedented campaign targeting major U.S. law firms for retribution and examines such actions in light ofthe First Amendment's relationship to these actions. Drawing on historical and doctrinal analyses, the Essay introduces and defends the concept of legal speech as a critical cluster of First Amendment protections encompassing the rights of lawyers to speak, associate, petition, and advocate on behalfof clients in an unfet- tered way and without government retaliation. Executive actions against Coving- ton & Burling, Paul Weiss, Perkins Coie, WilmerHale, Jenner & Block, and Sus- man Godfrey purport to revoke security clearances, bar access to federal buildings, review hiringpractices, and even penalize third-party clients doing busi- ness with the federal government all in apparent response to these firms' litiga- tion stances, pro bono activities, and affiliations with political adversaries of the president. The Essay situates these actions within a larger historical, constitu- tional, and legal framework by tracing the doctrinal roots of legal speech through landmark Supreme Court decisions, including NAACP v. Alabama, NA ACP v. But- ton, In re Primus, and Legal Services Corp. v. Velazquez, which collectively estab- lish that legal advocacy especially litigation aimed at advancing civil rights and challenging government action is constitutionally protected expression. The Es- sayfurther analyzes how the Administration's actions mirror past attempts bygov- ernment to suppress disfavored speech through indirect pressure on third parties, a tactic the Supreme Court unanimously condemned in NRA v. Vullo as recently as May of 2024. The Essay also chronicles how some firms capitulated to admin- istrative pressure without a formal Order issued against them, engaging in what historian Timothy Snyder describes as anticipatory compliance, further raising alarm about the erosion of rule-of-law principles. Ultimately, this Essay argues that these Executive Orders constitute clear content-based restrictions on legal speech and are therefore unconstitutional. * The author is the Associate Dean for Research and Intellectual Life and the Hon. Harold R. Tyler Chair in Law & Technology and Professor of Law at Albany Law School. He received his BA from Fordham University and JD from Yale Law School. He would like to thank the editors of the Nevada Law Journal Forum for their professional and conscientious work on this piece. 1

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