Many of us who are aware of American history and the Supreme Court know that free speech cases were a hot issue throughout the 20th century. In today’s New York Times, Adam Liptik wrote about a new slant on the free-speech issue that the Supreme Court has recently agreed to consider. Rather than a case related to suppression of political dissent in wartime or civil rights or censorship in the press the new battleground—befitting our times—involves bankruptcy. According to Robert J. Milavetz, a 73-old lawyer from Minnesota, the new free speech polemic is whether or not the government can stifle a bankruptcy lawyer seeking to help their clients arrange their financial affairs.

A 2005 law enacted by Congress appears to prevent lawyers from counseling their clients to take on more debt if they are thinking about filing bankruptcy. The intent of the law was to defeat what it called bankruptcy abuses. But this law is unnecessary in that ethics rules already prohibit lawyers from advising clients to break the law.

Of course, it is possible to abuse the bankruptcy system by accruing additional debt before filing bankruptcy in the hopes of not having to repay it. But not all new debt assimilated prior to filing bankruptcy is abusive. For example, refinancing a home mortgage to pay down credit debt is not only legal but wise in some cases. Buying a vehicle on credit for transportation to a job so that you can pay off your debts might be necessary. The law forbids bankruptcy lawyers from discussing these issues with their clients. Thus if a client in Denver, Colorado comes to me as their bankruptcy lawyer and asks for advice regarding a financial decision prior to filing bankruptcy—even a question about co-signing on a child’s student loan or borrowing money to pay for credit counseling—I may not be able to respond without breaking the law. The law as interpreted by First Amendment law and legal ethics experts “is deeply flawed.”

The other controversy mentioned in this article is the fact that the law also mandates that a bankruptcy lawyer covered by it must publish disclosures in their advertisements. They must make a statement that lets people know they are a debt relief agency and they help clients file for bankruptcy under the Bankruptcy Code. Mr. Milavetz dislikes this edict because he believes it aims to squelch speech. Other consumer bankruptcy lawyers, who like to refer to themselves as a debt relief agency in their ads, support it.

And, finally, I will leave you with Adam Liptik’s closing remark: “There are traces of history in every era’s First Amendment cases. These days, it seems, the great open question is what may be said in the face of looming financial ruin (NYTimes, June 23, 2009).”