Officious Intermeddling or Protected First Amendment Activity? The Constitutionality of Prohibitory Champerty Law After Citizens United

For many Americans, Harper Lee's timeless, Pulitzer Prize-winning classic, To Kill A Mockingbird, is required reading in elementary education, and the phrase connivance frequents many accompanying vocabulary lists paired with the revered novel. The stoic, cigar-chewing Judge Taylor is portrayed as a fair, yet practical jurist who enlists Atticus as the defense attorney for Tom Robinson, a black man who is brought up on baseless charges of rape in Maycomb, Alabama, during the Jim-Crow era.2 In the passage above, Judge Taylor allows feuding families to quibble in the public forum, understanding that their claims are likely frivolous and without merit.3 Without objection from either the Cunninghams or the Coninghams, Judge Taylor disposes of the case on a seemingly obscure ruling of champertous connivance.4 In fact, given the brief summary of the case, the doctrine of champerty is likely wholly irrelevant to this small dispute between families over titles to land. However, this passage illustrates one of the overarching themes of this Note: the courtroom as a public forum for speech for both litigants and their supporters and the doctrine of champerty as a powerful claim-dispensing weapon and potential barrier quelling that speech.In the United States, third-party litigation finance has quickly become a major global investment market over the past several decades.5 While many legal scholars have correctly argued for more regulation in third-party litigation to protect against ethical and financial abuses, one of the biggest obstacles creating uncertainty today in the viability of large commercial litigation lenders is the number of antiquated champerty and maintenance statutes6 that are still on the books in most states. Changing perceptions of litigation, influenced heavily by the Civil Rights movement during the middle of the century, were instrumental in defining litigation as a form of political expression and an avenue by which less politically powerful members of society may seek to enforce their rights.7 Given the political nature of legal services, some courts and legal scholars have suggested that outside investmenteither in individual lawsuits or in law firms-may be constitutionally protected.8 The Supreme Court's careful distinction between litigation as political expression and litigation for pecuniary gain emanating from its decision in NAACP v. Button9 has likely been blurred in later cases, culminating in the decision in Citizens United v. Federal Election Commission,10 which resulted in a ruling that protected unlimited corporate and union independent expenditures in election campaigns.11 Though Citizens United is a campaign finance case, many have argued, and this Note follows the same paradigmatic approach, that the broadly sweeping language employed by Justice Anthony Kennedy can be read to apply outside of the election law contextto arenas where political speech restrictions may run afoul of First Amendment limits. This Note will argue that state champerty and maintenance statutes, as they apply to prohibiting commercial third-party litigation lending activities, are unconstitutional under the First Amendment, as seen with the recent holding in Citizens United, coupled with changing attitudes towards the nature of litigation.Part I of this Note delves into the current landscape of the litigation finance industry in the United States, examining the development of the industry and current legal and ethical dilemmas facing both litigants and lenders. Preparing for a First Amendment analysis, Part I pays close attention to the problems that could potentially serve as government interests in a strict scrutiny speech restriction analysis of categorical prohibitory champerty law. This Note examines the legal, ethical, and practical problems that come with the territory of third-party litigation finance agreements. Part II explains the development of First Amendment protection of litigation and attorney conduct in the United States, starting with Button in 1963 and tracing Supreme Court First Amendment jurisprudence through commercial speech, solicitation, and advertising. …