Should SCOTUS Prohibit Ex Parte Blogging?

In Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy in an Internet Era, 61 Stan. L. Rev. 1535 (2009), Rachel Lee (Stanford Law School (2009), Prospective Law Clerk to the Honorable Susan P. Graber, United States Court of Appeals for the Ninth Circuit, 2009-2010), is sufficiently concerned about bloggers impacting the outcome of pending litigation to recommend that the Supreme Court should regulate ex parte blogging "despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues" and I might add, bring to daylight the discovery of errors.

Lee's Note is well worth reading. It is probably the first systematic analysis of the ethical implications of ex parte blogging and what its effects might be on different groups appearing before the Supreme Court. The Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications and concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Lee writes

Ideally, the members of the Court and their staff would refrain from reading any blog post relating to a pending case, whether written by attorneys involved in the case or not. If attorneys could rely on the Justices’ self-restraint, it would allow the profession to have the best of both worlds. Lawyers could speak out as they saw fit, enriching the public dialogue without danger of tainting the judicial process. Alternatively, if attorney conduct were regulated to prevent lawyers from engaging in ex parte blogging, while the Court also avoided the material, judicial self-regulation would provide another layer of protection for the impartiality of the Court’s decision-making process. However, the legal community is not in a position to bring about either scenario—the Court alone has the power to regulate itself.

Carolyn Elefant thinks any such SCOTUS rule is unnecessary. "I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response." Quoting from Do We Need Ethics Rules on Ex Parte Blogging? on Legal Blog Watch.

OT: Remember crowdsourcing Kennedy v. Louisiana? [JH]