Petitioner Gentile, an attorney, held a press conference the day
after his client, Sanders, was indicted on criminal charges under
Nevada law. Six months later, a jury acquitted Sanders.
Subsequently, respondent State Bar of Nevada filed a complaint
against Gentile, alleging that statements he made during the press
conference violated Nevada Supreme Court Rule 177, which prohibits
a lawyer from making extrajudicial statements to the press that he
knows or reasonably should know will have a "substantial likelihood
of materially prejudicing" an adjudicative proceeding, 177(1),
which lists a number of statements that are "ordinarily . . .
likely" to result in material prejudice, 177(2), and which provides
that a lawyer "may state without elaboration . . . the general
nature of the . . . defense" "[n]otwithstanding subsection 1 and 2
(a-f)," 177(3). The Disciplinary Board found that Gentile violated
the Rule and recommended that he be privately reprimanded. The
State Supreme Court affirmed, rejecting his contention that the
Rule violated his right to free speech.
Held: The judgment is reversed.
106 Nev. 60,
787 P.2d 386,
reversed.
JUSTICE KENNEDY delivered the opinion of the Court with respect
to Parts III and VI, concluding that, as interpreted by the Nevada
Supreme Court, Rule 177 is void for vagueness. Its safe harbor
provision, Rule 177(3), misled Gentile into thinking that he could
give his press conference without fear of discipline. Given the
Rule's grammatical structure and the absence of a clarifying
interpretation by the state court, the Rule fails to provide fair
notice to those to whom it is directed, and is so imprecise that
discriminatory enforcement is a real possibility. By necessary
operation of the word "notwithstanding," the Rule contemplates that
a lawyer describing the "general" nature of the defense without
"elaboration" need fear no discipline even if he knows or
reasonably should know that his statement will have a substantial
likelihood of materially prejudicing an adjudicative proceeding.
Both "general" and "elaboration" are classic terms of degree which,
in this context, have no settled usage or tradition of
interpretation in law, and thus a lawyer has no principle for
determining when his remarks pass from the permissible to the
forbidden. A review of the press conference -- where Gentile made
only a brief opening statement and declined to answer
reporters'
Page 501 U. S. 1031
questions seeking more detailed comments -- supports his claim
that he thought his statements were protected. That he was found in
violation of the Rules after studying them and making a conscious
effort at compliance shows that Rule 177 creates a trap for the
wary as well as the unwary. Pp.
501 U. S.
1048-1051.
THE CHIEF JUSTICE delivered the opinion of the Court with
respect to Parts I and II, concluding that the "substantial
likelihood of material prejudice" test applied by Nevada and most
other States satisfies the First Amendment. Pp.
501 U. S.
1065-1076.
(a) The speech of lawyers representing clients in pending cases
may be regulated under a less demanding standard than the "clear
and present danger" of actual prejudice or imminent threat standard
established for regulation of the press during pending proceedings.
See, e.g., Nebraska Press Assn. v. Stuart, 427 U.
S. 539. A lawyer's right to free speech is extremely
circumscribed in the courtroom,
see, e.g., Sacher v. United
States, 343 U. S. 1,
343 U. S. 8, and,
in a pending case, is limited outside the courtroom as well,
see, e.g., Sheppard v. Maxwell, 384 U.
S. 333,
384 U. S. 363.
Cf. Seattle Times Co. v. Rhinehart, 467 U. S.
20. Moreover, this Court's decisions dealing with a
lawyer's First Amendment right to solicit business and advertise
have not suggested that lawyers are protected to the same extent as
those engaged in other businesses, but have balanced the State's
interest in regulating a specialized profession against a lawyer's
First Amendment interest in the kind of speech at issue.
See,
e.g., Bates v. State Bar of Arizona, 433 U.
S. 350. Pp.
501 U. S.
1065-1075.
(b) The "substantial likelihood of material prejudice" standard
is a constitutionally permissible balance between the First
Amendment rights of attorneys in pending cases and the State's
interest in fair trials. Lawyers in such cases are key participants
in the criminal justice system, and the State may demand some
adherence to that system's precepts in regulating their speech and
conduct. Their extrajudicial statements pose a threat to a pending
proceeding's fairness, since they have special access to
information through discovery and client communication, and since
their statements are likely to be received as especially
authoritative. The standard is designed to protect the integrity
and fairness of a State's judicial system and imposes only narrow
and necessary limitations on lawyers' speech. Those limitations are
aimed at comments that are likely to influence a trial's outcome or
prejudice the jury venire, even if an untainted panel is ultimately
found. Few interests under the Constitution are more fundamental
than the right to a fair trial by impartial jurors, and the State
has a substantial interest in preventing officers of the court from
imposing costs on the judicial system and litigants arising from
measures, such as a change of venue, to ensure
Page 501 U. S. 1032
a fair trial. The restraint on speech is narrowly tailored to
achieve these objectives, since it applies only to speech that is
substantially likely to have a materially prejudicial effect, is
neutral to points of view, and merely postpones the lawyer's
comments until after the trial. Pp.
501 U. S.
1075-1076.
KENNEDY, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts III and VI, in which
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an
opinion with respect to Parts I, II, IV, and V, in which MARSHALL,
BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, C.J., delivered the
opinion of the Court with respect to Parts I and II, in which
WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined, and a dissenting
opinion with respect to Part III, in which WHITE, SCALIA, and
SOUTER, JJ., joined,
post, p.
501 U. S.
1062. O'CONNOR, J., filed a concurring opinion,
post, p.
501 U. S.
1081.
JUSTICE KENNEDY announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts III and
VI, and an opinion with respect to Parts I, II, IV, and V in which
JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.
Page 501 U. S. 1033
Hours after his client was indicted on criminal charges,
petitioner Gentile, who is a member of the Bar of the State of
Nevada, held a press conference. He made a prepared statement,
which we set forth in
501
U.S. 1030appa|>Appendix A to this opinion, and then he
responded to questions. We refer to most of those questions and
responses in the course of our opinion.
Some six months later, the criminal case was tried to a jury and
the client was acquitted on all counts. The State Bar of Nevada
then filed a complaint against petitioner, alleging a violation of
Nevada Supreme Court Rule 177, a rule governing pretrial publicity
almost identical to ABA Model Rule of Professional Conduct 3.6. We
set forth the full text of Rule 177 in
501
U.S. 1030appb|>Appendix B. Rule 177(1) prohibits an attorney
from making
"an extrajudicial statement that a reasonable person would
expect to be disseminated by means of public communication if the
lawyer knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an adjudicative
proceeding."
Rule 177(2) lists a number of statements that are "ordinarily .
. . likely" to result in material prejudice. Rule 177(3) provides a
safe harbor for the attorney, listing a number of statements that
can be made without fear of discipline notwithstanding the other
parts of the Rule.
Following a hearing, the Southern Nevada Disciplinary Board of
the State Bar found that Gentile had made the statements in
question and concluded that he violated Rule 177. The board
recommended a private reprimand. Petitioner appealed to the Nevada
Supreme Court, waiving the confidentiality of the disciplinary
proceeding, and the Nevada court affirmed the decision of the
board.
Nevada's application of Rule 177 in this case violates the First
Amendment. Petitioner spoke at a time and in a manner that neither
in law nor in fact created any threat of real prejudice to his
client's right to a fair trial or to the State's interest in the
enforcement of its criminal laws. Furthermore, the Rule's safe
harbor provision, Rule 177(3), appears
Page 501 U. S. 1034
to permit the speech in question, and Nevada's decision to
discipline petitioner in spite of that provision raises concerns of
vagueness and selective enforcement.
I
The matter before us does not call into question the
constitutionality of other States' prohibitions upon an attorney's
speech that will have a "substantial likelihood of materially
prejudicing an adjudicative proceeding," but is limited to Nevada's
interpretation of that standard. On the other hand, one central
point must dominate the analysis: this case involves classic
political speech. The State Bar of Nevada reprimanded petitioner
for his assertion, supported by a brief sketch of his client's
defense, that the State sought the indictment and conviction of an
innocent man as a "scapegoat," and had not "been honest enough to
indict the people who did it; the police department, crooked cops."
See infra, 501
U.S. 1030appa|>Appendix A. At issue here is the
constitutionality of a ban on political speech critical of the
government and its officials.
A
Unlike other First Amendment cases this Term in which speech is
not the direct target of the regulation or statute in question,
see, e.g., Barnes v. Glen Theatre, Inc., ante, p.
501 U. S. 560 (ban
on nude barroom dancing);
Leathers v. Medlock,
499 U. S. 439
(1991) (sales tax on cable and satellite television), this case
involves punishment of pure speech in the political forum.
Petitioner engaged not in solicitation of clients or advertising
for his practice, as in our precedents from which some of our
colleagues would discern a standard of diminished First Amendment
protection. His words were directed at public officials and their
conduct in office.
There is no question that speech critical of the exercise of the
State's power lies at the very center of the First Amendment.
Nevada seeks to punish the dissemination of information
Page 501 U. S. 1035
relating to alleged governmental misconduct, which only last
Term we described as "speech which has traditionally been
recognized as lying at the core of the First Amendment."
Butterworth v. Smith, 494 U. S. 624,
494 U. S. 632
(1990).
The judicial system, and in particular our criminal justice
courts, play a vital part in a democratic state, and the public has
a legitimate interest in their operations.
See, e.g., Landmark
Communications, Inc. v. Virginia, 435 U.
S. 829,
435 U. S.
838-839 (1978).
"[I]t would be difficult to single out any aspect of government
of higher concern and importance to the people than the manner in
which criminal trials are conducted."
Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555,
448 U. S. 575
(1980). Public vigilance serves us well, for
"[t]he knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an
effective restraint on possible abuse of judicial power. . . .
Without publicity, all other checks are insufficient: in comparison
of publicity, all other checks are of small account."
In re Oliver, 333 U. S. 257,
333 U. S.
270-271 (1948). As we said in
Bridges v.
California, 314 U. S. 252
(1941), limits upon public comment about pending cases are
"likely to fall not only at a crucial time, but upon the most
important topics of discussion. . . ."
"No suggestion can be found in the Constitution that the freedom
there guaranteed for speech and the press bears an inverse ratio to
the timeliness and importance of the ideas seeking expression."
Id. at
314 U. S.
268-269. In
Sheppard v. Maxwell, 384 U.
S. 333,
384 U. S. 350
(1966), we reminded that
"[t]he press . . . guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism."
Public awareness and criticism have even greater importance
where, as here, they concern allegations of police corruption,
see Nebraska Press Assn. v. Stuart, 427 U.
S. 539,
427 U. S. 606
(1976) (Brennan, J., concurring in judgment) ("[C]ommentary
Page 501 U. S. 1036
on the fact that there is strong evidence implicating a
government official in criminal activity goes to the very core of
matters of public concern"), or where, as is also the present
circumstance, the criticism questions the judgment of an elected
public prosecutor. Our system grants prosecutors vast discretion at
all stages of the criminal process,
see Morrison v. Olson,
487 U. S. 654,
487 U. S.
727-728 (1988) (SCALIA, J., dissenting). The public has
an interest in its responsible exercise.
We are not called upon to determine the constitutionality of the
ABA Model Rule of Professional Conduct 3.6 (1981), but only Rule
177 as it has been interpreted and applied by the State of Nevada.
Model Rule 3.6's requirement of substantial likelihood of material
prejudice is not necessarily flawed. Interpreted in a proper and
narrow manner, for instance, to prevent an attorney of record from
releasing information of grave prejudice on the eve of jury
selection, the phrase substantial likelihood of material prejudice
might punish only speech that creates a danger of imminent and
substantial harm. A rule governing speech, even speech entitled to
full constitutional protection, need not use the words "clear and
present danger" in order to pass constitutional muster.
"Mr. Justice Holmes' test was never intended 'to express a
technical legal doctrine or to convey a formula for adjudicating
cases.'
Pennekamp v. Florida, 328 U. S.
331,
328 U. S. 353 (1946)
(Frankfurter, J., concurring). Properly applied, the test requires
a court to make its own inquiry into the imminence and magnitude of
the danger said to flow from the particular utterance and then to
balance the character of the evil, as well as its likelihood,
against the need for free and unfettered expression. The
possibility that other measures will serve the State's interests
should also be weighed."
Landmark Communications, Inc. v. Virginia, supra at
435 U. S.
842-843.
Page 501 U. S. 1037
The drafters of Model Rule 3.6 apparently thought the
substantial likelihood of material prejudice formulation
approximated the clear and present danger test.
See ABA
Annotated Model Rules of Professional Conduct 243 (1984)
("formulation in Model Rule 3.6 incorporates a standard
approximating clear and present danger by focusing on the
likelihood of injury and its substantiality"; citing
Landmark
Communications, supra at
435 U. S. 844;
Wood v. Georgia, 370 U. S. 375
(1962); and
Bridges v. California, supra at
314 U. S. 273,
for guidance in determining whether statement "poses a sufficiently
serious and imminent threat to the fair administration of
justice"); G. Hazard & W. Hodes, The Law of Lawyering: A
Handbook on the Model Rules of Professional Conduct 397 (1985) ("To
use traditional terminology, the danger of prejudice to a
proceeding must be both clear (material) and present (substantially
likely)");
In re Hinds, 90 N.J. 604, 622,
449 A.2d
483, 493 (1982) (substantial likelihood of material prejudice
standard is a linguistic equivalent of clear and present
danger).
The difference between the requirement of serious and imminent
threat found in the disciplinary rules of some States and the more
common formulation of substantial likelihood of material prejudice
could prove mere semantics. Each standard requires an assessment of
proximity and degree of harm. Each may be capable of valid
application. Under those principles, nothing inherent in Nevada's
formulation fails First Amendment review; but, as this case
demonstrates, Rule 177 has not been interpreted in conformance with
those principles by the Nevada Supreme Court.
II
Even if one were to accept respondent's argument that lawyers
participating in judicial proceedings may be subjected, consistent
with the First Amendment, to speech restrictions that could not be
imposed on the press or general public, the judgment should not be
upheld. The record does
Page 501 U. S. 1038
not support the conclusion that petitioner knew or reasonably
should have known his remarks created a substantial likelihood of
material prejudice, if the Rule's terms are given any meaningful
content.
We have held that,
"in cases raising First Amendment issues . . . , an appellate
court has an obligation to 'make an independent examination of the
whole record' in order to make sure that 'the judgment does not
constitute a forbidden intrusion on the field of free
expression.'"
Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485,
466 U. S. 499
(1984) (quoting
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S.
284-286 (1964)).
Neither the disciplinary board nor the reviewing court explains
any sense in which petitioner's statements had a substantial
likelihood of causing material prejudice. The only evidence against
Gentile was the videotape of his statement and his own testimony at
the disciplinary hearing. The Bar's whole case rests on the fact of
the statement, the time it was made, and petitioner's own
justifications. Full deference to these factual findings does not
justify abdication of our responsibility to determine whether
petitioner's statements can be punished consistent with First
Amendment standards.
Rather, this Court is
"compelled to examine for [itself] the statements in issue and
the circumstances under which they were made to see whether or not
they do carry a threat of clear and present danger to the
impartiality and good order of the courts or whether they are of a
character which the principles of the First Amendment, as adopted
by the Due Process Clause of the Fourteenth Amendment,
protect."
Pennekamp v. Florida, 328 U. S. 331,
328 U. S. 335
(1946).
"'Whenever the fundamental rights of free speech . . . are
alleged to have been invaded, it must remain open to a defendant to
present the issue whether there actually
Page 501 U. S. 1039
did exist at the time a clear danger; whether the danger, if
any, was imminent; and whether the evil apprehended was one so
substantial as to justify the stringent restriction interposed by
the legislature.'"
Landmark Communications, Inc. v. Virginia, 435 U.S. at
435 U. S. 844
(quoting
Whitney v. California, 274 U.
S. 357,
274 U. S.
378-379 (1927) (Brandeis, J., concurring)). Whether one
applies the standard set out in
Landmark Communications or
the lower standard our colleagues find permissible, an examination
of the record reveals no basis for the Nevada court's conclusion
that the speech presented a substantial likelihood of material
prejudice.
Our decision earlier this Term in
Mu'Min v. Virginia,
500 U. S. 415
(1991), provides a pointed contrast to respondent's contention in
this case. There, the community had been subjected to a barrage of
publicity prior to Mu'Min's trial for capital murder. News stories
appeared over a course of several months and included, in addition
to details of the crime itself, numerous items of prejudicial
information inadmissible at trial. Eight of the twelve individuals
seated on Mu'Min's jury admitted some exposure to pretrial
publicity. We held that the publicity did not rise even to a level
requiring questioning of individual jurors about the content of
publicity. In light of that holding, the Nevada court's conclusion
that petitioner's abbreviated, general comments six months before
trial created a "substantial likelihood of materially prejudicing"
the proceeding is, to say the least, most unconvincing.
A
Pre-Indictment Publicity. On January 31, 1987,
undercover police officers with the Las Vegas Metropolitan Police
Department (Metro) reported large amounts of cocaine (four
kilograms) and travelers' checks (almost $300,000) missing from a
safety deposit vault at Western Vault Corporation. The drugs and
money had been used as part of an undercover
Page 501 U. S. 1040
operation conducted by Metro's Intelligence Bureau. Petitioner's
client, Grady Sanders, owned Western Vault. John Moran, the Las
Vegas sheriff, reported the theft at a press conference on February
2, 1987, naming the police and Western Vault employees as
suspects.
Although two police officers, Detective Steve Scholl and
Sergeant Ed Schaub, enjoyed free access to the deposit box
throughout the period of the theft, and no log reported comings and
goings at the vault, a series of press reports over the following
year indicated that investigators did not consider these officers
responsible. Instead, investigators focused upon Western Vault and
its owner. Newspaper reports quoted the sheriff and other high
police officials as saying that they had not lost confidence in the
"elite" Intelligence Bureau. From the beginning, Sheriff Moran had
"complete faith and trust" in his officers. App. 85.
The media reported that, following announcement of the cocaine
theft, others with deposit boxes at Western Vault had come forward
to claim missing items. One man claimed the theft of his life
savings of $90,000.
Id. at 89. Western Vault suffered
heavy losses as customers terminated their box rentals, and the
company soon went out of business. The police opened other boxes in
search of the missing items, and it was reported they seized
$264,900 in United States currency from a box listed as
unrented.
Initial press reports stated that Sanders and Western Vault were
being cooperative; but, as time went on, the press noted that the
police investigation had failed to identify the culprit, and,
through a process of elimination, was beginning to point toward
Sanders. Reports quoted the affidavit of a detective that the theft
was part of an effort to discredit the undercover operation, and
that business records suggested the existence of a business
relation between Sanders and the targets of a Metro undercover
probe.
Id. at 85.
The deputy police chief announced the two detectives with access
to the vault had been "cleared" as possible suspects.
Page 501 U. S. 1041
According to an unnamed "source close to the investigation," the
police shifted from the idea that the thief had planned to
discredit the undercover operation to the theory that the thief had
unwittingly stolen from the police. The stories noted that Sanders
"could not be reached for comment."
Id. at 93.
The story took a more sensational turn with reports that the two
police suspects had been cleared by police investigators after
passing lie detector tests. The tests were administered by one Ray
Slaughter. But later, the Federal Bureau of Investigation (FBI)
arrested Slaughter for distributing cocaine to an FBI informant,
Belinda Antal. It was also reported that the $264,900 seized from
the unrented safety deposit box at Western Vault had been stored
there in a suitcase owned by one Tammy Sue Markham. Markham was
"facing a number of federal drug-related charges" in Tucson,
Arizona. Markham reported items missing from three boxes she rented
at Western Vault, as did one Beatrice Connick, who, according to
press reports, was a Columbian national living in San Diego and
"not facing any drug related charges." (As it turned out,
petitioner impeached Connick's credibility at trial with the
existence of a money laundering conviction.) Connick also was
reported to have taken and passed a lie detector test to
substantiate her charges.
Id. at 94-97. Finally, press
reports indicated that Sanders had refused to take a police
polygraph examination.
Id. at 41. The press suggested that
the FBI suspected Metro officers were responsible for the theft,
and reported that the theft had severely damaged relations between
the FBI and Metro.
The Press Conference. Petitioner is a Las Vegas
criminal defense attorney, an author of articles about criminal law
and procedure, and a former associate dean of the National College
for Criminal Defense Lawyers and Public Defenders.
Id. at
36-38. Through leaks from the police department, he
Page 501 U. S. 1042
had some advance notice of the date an indictment would be
returned and the nature of the charges against Sanders. Petitioner
had monitored the publicity surrounding the case, and, prior to the
indictment, was personally aware of at least 17 articles in the
major local newspapers, the Las Vegas Sun and Las Vegas
Review-Journal, and numerous local television news stories which
reported on the Western Vault theft and ensuing investigation.
Id. at 38-39;
see Respondent's Exhibit A, before
Disciplinary Board. Petitioner determined, for the first time in
his career, that he would call a formal press conference. He did
not blunder into a press conference, but acted with considerable
deliberation.
1
Petitioner's Motivation. As petitioner explained to the
disciplinary board, his primary motivation was the concern that,
unless some of the weaknesses in the State's case were made public,
a potential jury venire would be poisoned by repetition in the
press of information being released by the police and prosecutors,
in particular the repeated press reports about polygraph tests and
the fact that the two police officers were no longer suspects. App.
40-42. Respondent distorts Rule 177 when it suggests this
explanation admits a purpose to prejudice the venire, and so proves
a violation of the Rule. Rule 177 only prohibits the dissemination
of information that one knows or reasonably should know has a
"substantial likelihood of materially prejudicing an adjudicative
proceeding." Petitioner did not indicate he thought he could sway
the pool of potential jurors to form an opinion in advance of the
trial, nor did he seek to discuss evidence that would be
inadmissible at trial. He sought only to counter publicity already
deemed prejudicial. The Southern Nevada Disciplinary Board so
found. It said petitioner attempted
Page 501 U. S. 1043
"(i) to counter public opinion which he perceived as adverse to
Mr. Sanders, (ii) . . . to refute certain matters regarding his
client which had appeared in the media, (iii) to fight back against
the perceived efforts of the prosecution to poison the prospective
juror pool, and (iv) to publicly present Sanders' side of the
case."
App. 3-4. Far from an admission that he sought to "materially
prejudic[e] an adjudicative proceeding," petitioner sought only to
stop a wave of publicity he perceived as prejudicing potential
jurors against his client and injuring his client's reputation in
the community.
Petitioner gave a second reason for holding the press
conference, which demonstrates the additional value of his speech.
Petitioner acted in part because the investigation had taken a
serious toll on his client. Sanders was "not a man in good health,"
having suffered multiple open-heart surgeries prior to these
events.
Id. at 41. And prior to indictment, the mere
suspicion of wrongdoing had caused the closure of Western Vault and
the loss of Sanders' ground lease on an Atlantic City, New Jersey,
property.
Ibid.
An attorney's duties do not begin inside the courtroom door. He
or she cannot ignore the practical implications of a legal
proceeding for the client. Just as an attorney may recommend a plea
bargain or civil settlement to avoid the adverse consequences of a
possible loss after trial, so too an attorney may take reasonable
steps to defend a client's reputation and reduce the adverse
consequences of indictment, especially in the face of a prosecution
deemed unjust or commenced with improper motives. A defense
attorney may pursue lawful strategies to obtain dismissal of an
indictment or reduction of charges, including an attempt to
demonstrate in the court of public opinion that the client does not
deserve to be tried.
Page 501 U. S. 1044
2
Petitioner's Investigation of Rule 177. Rule 177 is
phrased in terms of what an attorney "knows or reasonably should
know." On the evening before the press conference, petitioner and
two colleagues spent several hours researching the extent of an
attorney's obligations under Rule 177. He decided, as we have held,
see Patton v. Yount, 467 U. S. 1025
(1984), that the timing of a statement was crucial in the
assessment of possible prejudice and the Rule's application,
accord, Stroble v. California, 343 U.
S. 181,
343 U. S.
191-194 (1952). App. 44.
Upon return of the indictment, the court set a trial date for
August, 1988, some six months in the future. Petitioner knew, at
the time of his statement, that a jury would not be empaneled for
six months at the earliest, if ever. He recalled reported cases
finding no prejudice resulting from juror exposure to "far worse"
information two and four months before trial, and concluded that
his proposed statement was not substantially likely to result in
material prejudice.
Ibid.
A statement which reaches the attention of the venire on the eve
of
voir dire might require a continuance or cause
difficulties in securing an impartial jury, and, at the very least,
could complicate the jury selection process.
See ABA
Annotated Model Rules of Professional Conduct 243 (1984) (timing of
statement a significant factor in determining seriousness and
imminence of threat). As turned out to be the case here, exposure
to the same statement six months prior to trial would not result in
prejudice, the content fading from memory long before the trial
date.
In 1988, Clark County, Nevada, had population in excess of
600,000 persons. Given the size of the community from which any
potential jury venire would be drawn and the length of time before
trial, only the most damaging of information could give rise to any
likelihood of prejudice. The innocuous content of petitioner's
statement reinforces my conclusion.
Page 501 U. S. 1045
3
The Content of Petitioner's Statement. Petitioner was
disciplined for statements to the effect that (1) the evidence
demonstrated his client's innocence, (2) the likely thief was a
police detective, Steve Scholl, and (3) the other victims were not
credible, as most were drug dealers or convicted money launderers,
all but one of whom had only accused Sanders in response to police
pressure, in the process of "trying to work themselves out of
something."
501
U.S. 1030appa|>Appendix A,
infra, at 1059. App. 2-3
(Findings and Recommendation of the State Bar of Nevada, Southern
Nevada Disciplinary Board). He also strongly implied that Steve
Scholl could be observed in a videotape suffering from symptoms of
cocaine use. Of course, only a small fraction of petitioner's
remarks were disseminated to the public, in two newspaper stories
and two television news broadcasts.
The stories mentioned not only Gentile's press conference but
also a prosecution response and police press conference.
See App. 127-129, 131-132; Respondent's Exhibit A, before
Disciplinary Board. [
Footnote
1] The chief deputy district attorney was
Page 501 U. S. 1046
quoted as saying that this was a legitimate indictment, and that
prosecutors cannot bring an indictment to court unless they can
prove the charges in it beyond a reasonable doubt. App. 128-129.
Deputy Police Chief Sullivan stated for the police department:
"'We in Metro are very satisfied our officers (Scholl and Sgt.
Ed Schaub) had nothing to do with this theft or any other. They are
both above reproach. Both are veteran police officers who are
dedicated to honest law enforcement.'"
Id. at 129. In the context of general public awareness,
these police and prosecution statements were no more likely to
result in prejudice than was petitioner's statement, but given the
repetitive publicity from the police investigation, it is difficult
to come to any conclusion but that the balance remained in favor of
the prosecution.
Much of the information provided by petitioner had been
published in one form or another, obviating any potential for
prejudice.
See ABA Annotated Model Rules of Professional
Conduct 243 (1984) (extent to which information already circulated
significant factor in determining likelihood of prejudice). The
remainder, and details petitioner refused to provide, were
available to any journalist willing to do a little bit of
investigative work.
Petitioner's statement lacks any of the more obvious bases for a
finding of prejudice. Unlike the police, he refused to comment on
polygraph tests except to confirm earlier reports that Sanders had
not submitted to the police polygraph; he mentioned no confessions
and no evidence from searches or test results; he refused to
elaborate upon his charge that the other so-called victims were not
credible, except to explain his general theory that they were
pressured to testify in an attempt to avoid drug-related legal
trouble, and that some of
Page 501 U. S. 1047
them may have asserted claims in an attempt to collect insurance
money.
C
Events Following the Press Conference. Petitioner's
judgment that no likelihood of material prejudice would result from
his comments was vindicated by events at trial. While it is true
that Rule 177's standard for controlling pretrial publicity must be
judged at the time a statement is made,
ex post evidence
can have probative value in some cases. Here, where the Rule
purports to demand, and the Constitution requires, consideration of
the character of the harm and its heightened likelihood of
occurrence, the record is altogether devoid of facts one would
expect to follow upon any statement that created a real likelihood
of material prejudice to a criminal jury trial.
The trial took place on schedule in August, 1988, with no
request by either party for a venue change or continuance. The jury
was empaneled with no apparent difficulty. The trial judge
questioned the jury venire about publicity. Although many had vague
recollections of reports that cocaine stored at Western Vault had
been stolen from a police undercover operation, and, as petitioner
had feared, one remembered that the police had been cleared of
suspicion, not a single juror indicated any recollection of
petitioner or his press conference. App. 48-49; Respondent's
Exhibit B, before Disciplinary Board.
At trial, all material information disseminated during
petitioner's press conference was admitted in evidence before the
jury, including information questioning the motives and credibility
of supposed victims who testified against Sanders, and Detective
Scholl's ingestion of drugs in the course of undercover operations
(in order, he testified, to gain the confidence of suspects). App.
47. The jury acquitted petitioner's client, and, as petitioner
explained before the disciplinary board,
Page 501 U. S. 1048
"when the trial was over with and the man was acquitted, the
next week, the foreman of the jury phoned me and said to me that,
if they would have had a verdict form before them with respect to
the guilt of Steve Scholl. they would have found the man proven
guilty beyond a reasonable doubt."
Id. at 47-48. There is no support for the conclusion
that petitioner's statement created a likelihood of material
prejudice, or indeed of any harm of sufficient magnitude or
imminence to support a punishment for speech.
III
As interpreted by the Nevada Supreme Court, the Rule is void for
vagueness, in any event, for its safe harbor provision, Rule
177(3), misled petitioner into thinking that he could give his
press conference without fear of discipline. Rule 177(3)(a)
provides that a lawyer "may state without elaboration . . . the
general nature of the . . . defense." Statements under this
provision are protected "[n]otwithstanding subsection 1 and 2
(a-f)." By necessary operation of the word "notwithstanding," the
Rule contemplates that a lawyer describing the "general nature of
the . . . defense" "without elaboration" need fear no discipline,
even if he comments on "[t]he character, credibility, reputation or
criminal record of a . . . witness," and even if he
"knows or reasonably should know that [the statement] will have
a substantial likelihood of materially prejudicing an adjudicative
proceeding."
Given this grammatical structure, and absent any clarifying
interpretation by the state court, the Rule fails to provide
"
fair notice to those to whom [it] is directed.'" Grayned
v. City of Rockford, 408 U. S. 104,
408 U. S. 112
(1972). A lawyer seeking to avail himself of Rule 177(3)'s
protection must guess at its contours. The right to explain the
"general" nature of the defense without "elaboration" provides
insufficient guidance because "general" and "elaboration" are both
classic
Page 501 U. S. 1049
terms of degree. In the context before us, these terms have no
settled usage or tradition of interpretation in law. The lawyer has
no principle for determining when his remarks pass from the safe
harbor of the general to the forbidden sea of the elaborated.
Petitioner testified he thought his statements were protected by
Rule 177(3), App. 59. A review of the press conference supports
that claim. He gave only a brief opening statement,
see
Appendix A,
infra, at
501 U. S.
1059-1060, and on numerous occasions declined to answer
reporters' questions seeking more detailed comments. One
illustrative exchange shows petitioner's attempt to obey the
rule:
"QUESTION FROM THE FLOOR: Dominick, you mention you question the
credibility of some of the witnesses, some of the people named as
victims in the government indictment."
"Can we go through it and elaborate on their backgrounds,
interests -- "
"MR. GENTILE:
I can't, because ethics prohibit me from doing
so."
"Last night, before I decided I was going to make a statement, I
took a good close look at the rules of professional responsibility.
There are things that I can say and there are things that I can't.
Okay?"
"I can't name which of the people have the drug backgrounds. I'm
sure you guys can find that by doing just a little bit of
investigative work."
App. to Pet. for Cert. 11a (emphasis added). [
Footnote 2]
Page 501 U. S. 1050
Nevertheless, the disciplinary board said only that petitioner's
comments "went beyond the scope of the statements permitted by SCR
177(3)," App. 5, and the Nevada Supreme
Page 501 U. S. 1051
Court's rejection of petitioner's defense based on Rule 177(3)
was just as terse, App. to Pet. for Cert. 4a. The fact that Gentile
was found in violation of the Rules after studying them and making
a conscious effort at compliance demonstrates that Rule 177 creates
a trap for the wary, as well as the unwary.
The prohibition against vague regulations of speech is based in
part on the need to eliminate the impermissible risk of
discriminatory enforcement,
Kolender v. Lawson,
461 U. S. 352,
461 U. S.
357-358, 361 (1983);
Smith v. Goguen,
415 U. S. 566,
415 U. S.
572-573 (1974), for history shows that speech is
suppressed when either the speaker or the message is critical of
those who enforce the law. The question is not whether
discriminatory enforcement occurred here, and we assume it did not,
but whether the Rule is so imprecise that discriminatory
enforcement is a real possibility. The inquiry is of particular
relevance when one of the classes most affected by the regulation
is the criminal defense bar, which has the professional mission to
challenge actions of the State. Petitioner, for instance, succeeded
in preventing the conviction of his client, and the speech in issue
involved criticism of the government.
IV
The analysis to this point resolves the case, and, in the usual
order of things, the discussion should end here. Five Members of
the Court, however, endorse an extended discussion which concludes
that Nevada may interpret its requirement of substantial likelihood
of material prejudice under a standard more deferential than is the
usual rule where speech is concerned. It appears necessary,
therefore, to set forth my objections to that conclusion and to the
reasoning which underlies it.
Respondent argues that speech by an attorney is subject to
greater regulation than speech by others, and restrictions on an
attorney's speech should be assessed under a balancing test that
weighs the State's interest in the regulation of a
Page 501 U. S. 1052
specialized profession against the lawyer's First Amendment
interest in the kind of speech that was at issue. The cases cited
by our colleagues to support this balancing,
Bates v. State Bar
of Arizona, 433 U. S. 350
(1977);
Peel v. Attorney Registration and Disciplinary Comm'n
of Ill., 496 U. S. 91
(1990);
Ohralik v. Ohio State Bar Assn., 436 U.
S. 447 (1978); and
Seattle Times Co. v.
Rhinehart, 467 U. S. 20
(1984), involved either commercial speech by attorneys or
restrictions upon release of information that the attorney could
gain only by use of the court's discovery process. Neither of those
categories, nor the underlying interests which justified their
creation, were implicated here. Petitioner was disciplined because
he proclaimed to the community what he thought to be a misuse of
the prosecutorial and police powers. Wide-open balancing of
interests is not appropriate in this context.
A
Respondent would justify a substantial limitation on speech by
attorneys because
"lawyers have special access to information, including
confidential statements from clients and information obtained
through pretrial discovery or plea negotiations,"
and so lawyers' statements "are likely to be received as
especially authoritative." Brief for Respondent 22. Rule 177,
however, does not reflect concern for the attorney's special access
to client confidences, material gained through discovery, or other
proprietary or confidential information. We have upheld
restrictions upon the release of information gained "only by virtue
of the trial court's discovery processes."
Seattle Times Co. v.
Rhinehart, supra at
467 U. S. 32.
And
Seattle Times would prohibit release of discovery
information by the attorney, as well as the client. Similar rules
require an attorney to maintain client confidences.
See,
e.g., ABA Model Rule of Professional Conduct 1.6 (1981).
This case involves no speech subject to a restriction under the
rationale of
Seattle Times. Much of the information in
Page 501 U. S. 1053
petitioner's remarks was included by explicit reference or fair
inference in earlier press reports. Petitioner could not have
learned what he revealed at the press conference through the
discovery process or other special access afforded to attorneys,
for he spoke to the press on the day of indictment, at the outset
of his formal participation in the criminal proceeding. We have
before us no complaint from the prosecutors, police, or presiding
judge that petitioner misused information to which he had special
access. And there is no claim that petitioner revealed client
confidences, which may be waived, in any event. Rule 177, on its
face and as applied here, is neither limited to nor even directed
at preventing release of information received through court
proceedings or special access afforded attorneys.
Cf.
Butterworth v. Smith, 494 U.S. at
494 U. S.
632-634. It goes far beyond this.
B
Respondent relies upon obiter dicta from
In re Sawyer,
360 U. S. 622
(1959),
Sheppard v. Maxwell, 384 U.
S. 333 (1966), and
Nebraska Press Assn. v.
Stuart, 427 U. S. 539
(1976), for the proposition that an attorney's speech about ongoing
proceedings must be subject to pervasive regulation in order to
ensure the impartial adjudication of criminal proceedings.
In
re Sawyer involved general comments about Smith Act
prosecutions, rather than the particular proceeding in which the
attorney was involved, conduct which we held not sanctionable under
the applicable ABA Canon of Professional Ethics, quite apart from
any resort to First Amendment principles.
Nebraska Press
Assn. considered a challenge to a court order barring the
press from reporting matters most prejudicial to the defendant's
Sixth Amendment trial right, not information released by defense
counsel. In
Sheppard v. Maxwell, we overturned a
conviction after a trial that can only be described as a circus,
with the courtroom taken over by the press and jurors turned into
media stars. The prejudice to Dr. Sheppard's fair trial right can
be traced in principal
Page 501 U. S. 1054
part to police and prosecutorial irresponsibility and the trial
court's failure to control the proceedings and the courthouse
environment. Each case suggests restrictions upon information
release, but none confronted their permitted scope.
At the very least, our cases recognize that disciplinary rules
governing the legal profession cannot punish activity protected by
the First Amendment, and that First Amendment protection survives
even when the attorney violates a disciplinary rule he swore to
obey when admitted to the practice of law.
See, e.g., In re
Primus, 436 U. S. 412
(1978);
Bates v. State Bar of Arizona, supra. We have not
in recent years accepted our colleagues' apparent theory that the
practice of law brings with it comprehensive restrictions, or that
we will defer to professional bodies when those restrictions
impinge upon First Amendment freedoms. And none of the
justifications put forward by respondent suffice to sanction
abandonment of our normal First Amendment principles in the case of
speech by an attorney regarding pending cases.
V
Even if respondent is correct, and, as in
Seattle
Times, we must balance
"whether the 'practice in question [furthers] an important or
substantial governmental interest unrelated to the suppression of
expression' and whether 'the limitation of First Amendment freedoms
[is] no greater than is necessary or essential to the protection of
the particular governmental interest involved,'"
Seattle Times, supra at
467 U. S. 32
(quoting
Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 413
(1974)), the Rule, as interpreted by Nevada, fails the searching
inquiry required by those precedents.
A
Only the occasional case presents a danger of prejudice from
pretrial publicity. Empirical research suggests that, in the few
instances when jurors have been exposed to extensive and
prejudicial publicity, they are able to disregard it
Page 501 U. S. 1055
and base their verdict upon the evidence presented in court.
See generally Simon, Does the Court's Decision in
Nebraska Press Association Fit the Research Evidence on
the Impact on Jurors of News Coverage?, 29 Stan.L.Rev. 515 (1977);
Drechsel, An Alternative View of Media-Judiciary Relations: What
the Non-Legal Evidence Suggests About the Fair Trial-Free Press
Issue, 18 Hofstra L.Rev. 1 (1989).
Voir dire can play an
important role in reminding jurors to set aside out-of-court
information and to decide the case upon the evidence presented at
trial. All of these factors weigh in favor of affording an
attorney's speech about ongoing proceedings our traditional First
Amendment protections. Our colleagues' historical survey
notwithstanding, respondent has not demonstrated any sufficient
state interest in restricting the speech of attorneys to justify a
lower standard of First Amendment scrutiny.
Still less justification exists for a lower standard of scrutiny
here, as this speech involved not the prosecutor or police, but a
criminal defense attorney. Respondent and its
amici
present not a single example where a defense attorney has managed
by public statements to prejudice the prosecution of the State's
case. Even discounting the obvious reason for a lack of appellate
decisions on the topic -- the difficulty of appealing a verdict of
acquittal -- the absence of anecdotal or survey evidence in a
much-studied area of the law is remarkable.
The various bar association and advisory commission reports
which resulted in promulgation of ABA Model Rule of Professional
Conduct 3.6 (1981), and other regulations of attorney speech, and
sources they cite, present no convincing case for restrictions upon
the speech of defense attorneys.
See Swift, Model Rule
3.6: An Unconstitutional Regulation of Defense Attorney Trial
Publicity, 64 B.U.L.Rev. 1003, 1031-1049 (1984) (summarizing
studies and concluding there is no empirical or anecdotal evidence
of a need for restrictions on defense publicity);
see also
Drechsel,
supra at 35 ("[D]ata
Page 501 U. S. 1056
showing the heavy reliance of journalists on law enforcement
sources and prosecutors confirms the appropriateness of focusing
attention on those sources when attempting to control pretrial
publicity"). The police, the prosecution, other government
officials, and the community at large hold innumerable avenues for
the dissemination of information adverse to a criminal defendant,
many of which are not within the scope of Rule 177 or any other
regulation. By contrast, a defendant cannot speak without fear of
incriminating himself and prejudicing his defense, and most
criminal defendants have insufficient means to retain a public
relations team apart from defense counsel for the sole purpose of
countering prosecution statements. These factors underscore my
conclusion that blanket rules restricting speech of defense
attorneys should not be accepted without careful First Amendment
scrutiny.
B
Respondent uses the "officer of the court" label to imply that
attorney contact with the press somehow is inimical to the
attorney's proper role. Rule 177 posits no such inconsistency
between an attorney's role and discussions with the press. It
permits all comment to the press absent "a substantial likelihood
of materially prejudicing an adjudicative proceeding." Respondent
does not articulate the principle that contact with the press
cannot be reconciled with the attorney's role or explain how this
might be so.
Because attorneys participate in the criminal justice system and
are trained in its complexities, they hold unique qualifications as
a source of information about pending cases.
"Since lawyers are considered credible in regard to pending
litigation in which they are engaged and are in one of the most
knowledgeable positions, they are a crucial source of information
and opinion."
Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 250
(CA7 1975). To the extent the press and public rely upon attorneys
for information because attorneys are well informed, this may prove
the value to the
Page 501 U. S. 1057
public of speech by members of the bar. If the dangers of their
speech arise from its persuasiveness, from their ability to explain
judicial proceedings, or from the likelihood the speech will be
believed, these are not the sort of dangers that can validate
restrictions. The First Amendment does not permit suppression of
speech because of its power to command assent.
One may concede the proposition that an attorney's speech about
pending cases may present dangers that could not arise from
statements by a nonparticipant, and that an attorney's duty to
cooperate in the judicial process may prevent him or her from
taking actions with an intent to frustrate that process. The role
of attorneys in the criminal justice system subjects them to
fiduciary obligations to the court and the parties. An attorney's
position may result in some added ability to obstruct the
proceedings through well timed statements to the press, though one
can debate the extent of an attorney's ability to do so without
violating other established duties. A court can require an
attorney's cooperation to an extent not possible of
nonparticipants. A proper weighing of dangers might consider the
harm that occurs when speech about ongoing proceedings forces the
court to take burdensome steps such as sequestration, continuance,
or change of venue.
If, as a regular matter, speech by an attorney about pending
cases raised real dangers of this kind, then a substantial
governmental interest might support additional regulation of
speech. But this case involves the sanction of speech so innocuous,
and an application of Rule 177(3)'s safe harbor provision so
begrudging, that it is difficult to determine the force these
arguments would carry in a different setting. The instant case is a
poor vehicle for defining with precision the outer limits under the
Constitution of a court's ability to regulate an attorney's
statements about ongoing adjudicative proceedings. At the very
least, however, we can say that the Rule which punished
petitioner's statement represents a limitation of First Amendment
freedoms greater than is necessary
Page 501 U. S. 1058
or essential to the protection of the particular governmental
interest, and does not protect against a danger of the necessary
gravity, imminence, or likelihood.
The vigorous advocacy we demand of the legal profession is
accepted because it takes place under the neutral, dispassionate
control of the judicial system. Though cost and delays undermine it
in all too many cases, the American judicial trial remains one of
the purest, most rational forums for the lawful determination of
disputes. A profession which takes just pride in these traditions
may consider them disserved if lawyers use their skills and insight
to make untested allegations in the press, instead of in the
courtroom. But constraints of professional responsibility and
societal disapproval will act as sufficient safeguards in most
cases. And, in some circumstances, press comment is necessary to
protect the rights of the client and prevent abuse of the courts.
It cannot be said that petitioner's conduct demonstrated any real
or specific threat to the legal process, and his statements have
the full protection of the First Amendment. [
Footnote 3]
VI
The judgment of the Supreme Court of Nevada is
Reversed.
Page 501 U. S. 1059
|
501
U.S. 1030appa|
APPENDIX TO OPINION OF KENNEDY, J.
Appendix A
Petitioner's Opening Remarks at the Press Conference
of
February 5, 1988. App. to Pet. for Cert.
8a-9a.
"MR. GENTILE: I want to start this off by saying in clear terms
that I think that this indictment is a significant event in the
history of the evolution of the sophistication of the City of Las
Vegas, because things of this nature, of exactly this nature have
happened in New York with the French connection case and in Miami
with cases -- at least two cases there -- have happened in Chicago
as well, but all three of those cities have been honest enough to
indict the people who did it; the police department, crooked
cops."
"When this case goes to trial, and as it develops, you're going
to see that the evidence will prove not only that Grady Sanders is
an innocent person and had nothing to do with any of the charges
that are being leveled against him, but that the person that was in
the most direct position to have stolen the drugs and money, the
American Express Travelers' checks, is Detective Steve Scholl."
"There is far more evidence that will establish that Detective
Scholl took these drugs and took these American Express Travelers'
checks than any other living human being."
"And I have to say that I feel that Grady Sanders is being used
as a scapegoat to try to cover up for what has to be obvious to
people at the Las Vegas Metropolitan Police Department and at the
District Attorney's office."
"Now, with respect to these other charges that are contained in
this indictment, the so-called other victims, as I sit here today,
I can tell you that one, two -- four of them are known drug dealers
and convicted money launderers and drug dealers, three of whom
didn't say a word about anything until after they were approached
by Metro, and after they were already in trouble and are trying to
work themselves out of something. "
Page 501 U. S. 1060
"Now, up until the moment, of course, that they started going
along with what detectives from Metro wanted them to say, these
people were being held out as being incredible and liars by the
very same people who are going to say now that you can believe
them."
"Another problem that you are going to see develop here is the
fact that, of these other counts, at least four of them said
nothing about any of this, about anything being missing until after
the Las Vegas Metropolitan Police Department announced publicly
last year their claim that drugs and American Express Travelers'
c[h]ecks were missing."
"Many of the contracts that these people had show on the face of
the contract that there is $100,000 in insurance for the contents
of the box."
"If you look at the indictment very closely, you're going to see
that these claims fall under $100,000."
"Finally, there were only two claims on the face of the
indictment that came to our attention prior to the events of
January 31 of '87, that being the date that Metro said that there
was something missing from their box."
"And both of these claims were dealt with by Mr. Sanders, and
we're dealing here essentially with people that we're not sure if
they ever had anything in the box."
"That's about all that I have to say."
[Questions from the floor followed.]
|
501
U.S. 1030appb|
Appendix B
Nevada Supreme Court Rule 177, as in
effect
prior to January 5, 1991.
"Trial Publicity"
"1. A lawyer shall not make an extrajudicial statement that a
reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know
that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding. "
Page 501 U. S. 1061
"2. A statement referred to in subsection 1 ordinarily is likely
to have such an effect when it refers to a civil matter triable to
a jury, a criminal matter, or any other proceeding that could
result in incarceration, and the statement relates to:"
" (a) the character, credibility, reputation or criminal record
of a party, suspect in a criminal investigation or witness, or the
identity of a witness, or the expected testimony of a party or
witness;"
" (b) in a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense
or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person's refusal
or failure to make a statement;"
" (c) the performance or results of any examination or test or
the refusal or failure of a person to submit to an examination or
test, or the identity or nature of physical evidence expected to be
presented;"
" (d) any opinion as to the guilt or innocence of a defendant or
suspect in a criminal case or proceeding that could result in
incarceration;"
" (e) information the lawyer knows or reasonably should know is
likely to be inadmissible as evidence in a trial and would if
disclosed create a substantial risk of prejudicing an impartial
trial; or"
" (f) the fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that the
charge is merely an accusation and that the defendant is presumed
innocent until and unless proven guilty."
"3. Notwithstanding subsection 1 and 2(a-f), a lawyer involved
in the investigation or litigation of a matter may state without
elaboration:"
" (a) the general nature of the claim or defense; "
Page 501 U. S. 1062
" (b) the information contained in a public record;"
" (c) that an investigation of the matter is in progress,
including the general scope of the investigation, the offense or
claim or defense involved and, except when prohibited by law, the
identity of the persons involved;"
" (d) the scheduling or result of any step in litigation;"
" (e) a request for assistance in obtaining evidence and
information necessary thereto;"
" (f) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and"
" (g) in a criminal case:"
"~ (i) the identity, residence, occupation and family status of
the accused;"
"~ (ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;"
"~ (iii) the fact, time and place of arrest; and"
"~ (iv) the identity of investigating and arresting officers or
agencies and the length of the investigation."
[
Footnote 1]
The sole summary of television reports of the press conference
contained in the record is as follows:
"2-5-88: GENTILE NEWS CONFERENCE STORY. GENTILE COMPARES THE W.
VAULT BURGLARY TO THE FRENCH CONNECTION CASE IN WHICH THE BAD GUYS
WERE COPS. GENTILE SAYS THE EVIDENCE IS CIRCUMSTANTIAL AND THAT THE
COPS SEEM THE MORE LIKELY CULPRITS, THAT DET. SCHOLL HAS SHOWN
SIGNS OF DRUG USE, THAT THE OTHER CUSTOMERS WERE PRESSURED INTO
COMPLAINING BY METRO, THAT THOSE CUSTOMERS ARE KNOWN DRUG DEALERS,
AND THAT OTHER AGENCIES HAVE OPERATED OUT OF W. VAULT WITHOUT
HAVING SIMILAR PROBLEMS."
"2-588:
METRO NEWS CONFERENCE IN WHICH CHIEF SULLIVAN
EXPLAINS THAT THE OFFICERS INVOLVED HAVE BEEN CLEARED BY POLYGRAPH
TESTS. STORY MENTIONS THAT THE POLYGRAPHER WAS RAY SLAUGHTER,
UNUSUAL BECAUSE SLAUGHTER IS A PRIVATE EXAMINER, NOT A METRO
EXAMINER. REPORTER DETAILS SLAUGHTER'S BACKGROUND, INCLUDING HIS
TEST OF JOHN MORAN REGARDING SPILOTRO CONTRIBUTIONS. ALSO MENTIONS
SLAUGHTER's DRUG BUST, SPECULATES ABOUT WHETHER IT WAS A SETUP BY
THE FBI. QUOTES GENTILE AS SAYING THE TWO CASES ARE DEFINITELY
RELATED."
APP. 131-132 (emphasis added).
[
Footnote 2]
Other occasions are as follows:
"QUESTION FROM THE FLOOR: Do you believe any other police
officers other than Scholl were involved in the disappearance of
the dope and -- "
"MR. GENTILE: Let me ay this: what I believe and what the proof
is are two different things. Okay? I'm reluctant to discuss what I
believe because I don't want to slander somebody, but I can tell
you that the proof shows that Scholl is the guy that is most likely
to have taken the cocaine and the American Express traveler's
checks."
"QUESTION FROM THE FLOOR: What is that? What is that proof?"
"MR. GENTILE: It'll come out; it'll come out."
App. to Pet. for Cert. 9a.
"QUESTION FROM THE FLOOR: I have seen reports that the FBI seems
to think sort of along the lines that you do."
"MR. GENTILE: Well, I couldn't agree with them more."
"QUESTION FROM THE FLOOR: Do you know anything about it?"
"MR. GENTILE: Yes, I do; but again, Dan, I'm not in a position
to be able to discuss that now."
"All I can tell you is that you're in for a very interesting six
months to a year as this case develops."
Id. at 10a.
"QUESTION FROM THE FLOOR: Did the cops pass the polygraph?"
"MR. GENTILE: Well, I would like to give you a comment on that,
except that Ray Slaughter's trial is coming up, and I don't want to
get in the way of anybody being able to defend themselves."
"QUESTION FROM THE FLOOR: Do you think the Slaughter case --
that there's a connection?"
"MR. GENTILE: Absolutely. I don't think there is any question
about it, and -- "
"QUESTION FROM THE FLOOR: What is that?"
"MR. GENTILE: Well, it's intertwined to a great deal, I
think."
"I know that what I think the connection is, again, is something
I believe to be true. I can't point to it being true and until I
can -- I'm not going to say anything."
"QUESTION FROM THE FLOOR: Do you think the police involved in
this passed legitimate -- legitimately passed lie detector
tests?"
"MR. GENTILE: I don't want to comment on that for two
reasons:"
"Number one, again, Ray Slaughter is coming up for trial, and it
wouldn't be right to call him a liar if I didn't think that it were
true."
"But, secondly, I don't have much faith in polygraph tests."
"QUESTION FROM THE FLOOR: Did [Sanders] ever take one?"
"MR. GENTILE: The police polygraph?"
"QUESTION FROM THE FLOOR: Yes."
"MR. GENTILE: No, he didn't take a police polygraph."
"QUESTION FROM THE FLOOR: Did he take one with you?"
"MR. GENTILE: I'm not going to disclose that now."
Id. at 12a-13a.
[
Footnote 3]
Petitioner argues that Rule 177(2) is a categorical speech
prohibition which fails First Amendment analysis because of
overbreadth. Petitioner interprets this subsection as providing
that particular statements are "presumptively prohibited regardless
of the circumstances surrounding the speech." Brief for Petitioner
48. Respondent does not read Rule 177(2)'s list of statements
"ordinarily likely" to create material prejudice as establishing an
evidentiary presumption, but rather as intended to "assist a
lawyer" in compliance. Brief for Respondent 28, n. 27. The opinions
of the Disciplinary Board and the Nevada Supreme Court do not
address this point, though petitioner's reading is plausible, and
at least one treatise supports petitioner's reading.
See
G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the
Model Rules of Professional Conduct 398-399 (1985) (analogous
subsection (b) of ABA Model Rule 3.6 creates a presumption of
prejudice). Given the lack of any discussion in the lower court
opinion, and the other difficulties we find, we do not address
these arguments.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court with
respect to Parts I and II, and delivered a dissenting opinion with
respect to Part III, in which JUSTICE WHITE, JUSTICE SCALIA, and
JUSTICE SOUTER join.
Petitioner was disciplined for making statements to the press
about a pending case in which he represented a criminal defendant.
The state bar, and the Supreme Court of Nevada on review, found
that petitioner knew or should have known that there was a
substantial likelihood that his statements would materially
prejudice the trial of his client. Nonetheless, petitioner contends
that the First Amendment to the United States Constitution requires
a stricter standard to be met before such speech by an attorney may
be disciplined:
Page 501 U. S. 1063
there must be a finding of "actual prejudice or a substantial
and imminent threat to fair trial." Brief for Petitioner 15. We
conclude that the "substantial likelihood of material prejudice"
standard applied by Nevada and most other States satisfies the
First Amendment.
I
Petitioner's client was the subject of a highly publicized case,
and, in response to adverse publicity about his client, Gentile
held a press conference on the day after Sanders was indicted. At
the press conference, petitioner made, among others, the following
statements:
"When this case goes to trial, and as it develops, you're going
to see that the evidence will prove not only that Grady Sanders is
an innocent person and had nothing to do with any of the charges
that are being leveled against him, but that the person that was in
the most direct position to have stolen the drugs and the money,
the American Express Travelers' checks, is Detective Steve
Scholl."
"There is far more evidence that will establish that Detective
Scholl took these drugs and took these American Express Travelers'
checks than any other living human being."
"
* * * *"
". . . the so-called other victims, as I sit here today, I can
tell you that one, two -- four of them are known drug dealers and
convicted money launderers and drug dealers, three of whom didn't
say a word about anything until after they were approached by Metro
and after they were already in trouble and are trying to work
themselves out of something."
"Now, up until the moment, of course, that they started going
along with what detectives from Metro wanted them to say, these
people were being held out as being incredible and liars by the
very same people who
Page 501 U. S. 1064
are going to say now that you can believe them."
App. to Pet. for Cert. 8a-9a.
The following statements were in response to questions from
members of the press:
". . . because of the stigma that attaches to merely being
accused -- okay -- I know I represent an innocent man. . . . The
last time I had a conference with you was with a client, and I let
him talk to you and I told you that that case would be dismissed,
and it was. Okay?"
"I don't take cheap shots like this. I represent an innocent
guy. All right?"
"
* * * *"
"[The police] were playing very fast and loose. . . . We've got
some video tapes that, if you take a look at them, I'll tell you
what, [Detective Scholl] either had a hell of a cold or he should
have seen a better doctor."
Id. at 12a, 14a.
Articles appeared in the local newspapers describing the press
conference and petitioner's statements. The trial took place
approximately six months later, and, although the trial court
succeeded in empaneling a jury that had not been affected by the
media coverage and Sanders was acquitted on all charges, the state
bar disciplined petitioner for his statements.
The Southern Nevada Disciplinary Board found that petitioner
knew the detective he accused of perpetrating the crime and abusing
drugs would be a witness for the prosecution. It also found that
petitioner believed others whom he characterized as money
launderers and drug dealers would be called as prosecution
witnesses. Petitioner's admitted purpose for calling the press
conference was to counter public opinion which he perceived as
adverse to his client, to fight back against the perceived efforts
of the prosecution to poison the prospective juror pool, and to
publicly present his client's side of the case. The board found
that, in light of the
Page 501 U. S. 1065
statements, their timing, and petitioner's purpose, petitioner
knew or should have known that there was a substantial likelihood
that the statements would materially prejudice the Sanders
trial.
The Nevada Supreme Court affirmed the board's decision, finding
by clear and convincing evidence that petitioner
"knew or reasonably should have known that his comments had a
substantial likelihood of materially prejudicing the adjudication
of his client's case."
106 Nev. 60, 62,
787 P.2d 386,
387 (1990). The court noted that the case was "highly publicized";
that the press conference, held the day after the indictment and
the same day as the arraignment, was "timed to have maximum
impact"; and that petitioner's comments "related to the character,
credibility, reputation or criminal record of the police detective
and other potential witnesses."
Ibid. The court concluded
that the "absence of actual prejudice does not establish that there
was no substantial likelihood of material prejudice."
Ibid.
II
Gentile asserts that the same stringent standard applied in
Nebraska Press Assn. v. Stuart, 427 U.
S. 539 (1976), to restraints on press publication during
the pendency of a criminal trial should be applied to speech by a
lawyer whose client is a defendant in a criminal proceeding. In
that case, we held that, in order to suppress press commentary on
evidentiary matters, the state would have to show that
"further publicity, unchecked, would so distort the views of
potential jurors that 12 could not be found who would, under proper
instructions, fulfill their sworn duty to render a just verdict
exclusively on the evidence presented in open court."
Id. at
427 U. S. 569.
Respondent, on the other hand, relies on statements in cases such
as
Sheppard v. Maxwell, 384 U. S. 333
(1966), which sharply distinguished between restraints on the press
and restraints on lawyers whose clients are parties to the
proceeding:
Page 501 U. S. 1066
"Collaboration between counsel and the press as to information
affecting the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of disciplinary
measures."
Id. at
384 U. S. 363.
To evaluate these opposing contentions, some reference must be made
to the history of the regulation of the practice of law by the
courts.
In the United States, the courts have historically regulated
admission to the practice of law before them and exercised the
authority to discipline and ultimately to disbar lawyers whose
conduct departed from prescribed standards. "Membership in the bar
is a privilege burdened with conditions," to use the oft-repeated
statement of Cardozo, J., in
In re Rouss, 221 N.Y. 81, 84,
116 N.E. 782, 783 (1917), quoted in
Theard v. United
States, 354 U. S. 278,
354 U. S. 281
(1957).
More than a century ago, the first official code of legal ethics
promulgated in this country, the Alabama Code of 1887, warned
attorneys to "Avoid Newspaper Discussion of Legal Matters," and
stated that
"[n]ewspaper publications by an attorney as to the merits of
pending or anticipated litigation . . . tend to prevent a fair
trial in the courts, and otherwise prejudice the due administration
of justice."
H. Drinker, Legal Ethics 23, 356 (1953). In 1908, the American
Bar Association promulgated its own code, entitled "Canons of
Professional Ethics." Many States thereafter adopted the ABA Canons
for their own jurisdictions. Canon 20 stated:
"Newspaper publications by a lawyer as to pending or anticipated
litigation may interfere with a fair trial in the Courts and
otherwise prejudice the due administration of justice. Generally
they are to be condemned. If the extreme circumstances of a
particular case justify a statement to the public, it is
unprofessional to make it anonymously. An
ex parte
reference to the facts should not go beyond quotation from the
records and papers on file in the court; but even in extreme cases
it is better to avoid any
ex parte statement. "
Page 501 U. S. 1067
In the last quarter century, the legal profession has reviewed
its ethical limitations on extrajudicial statements by lawyers in
the context of this Court's cases interpreting the First Amendment.
ABA Model Rule of Professional Responsibility 3.6 resulted from the
recommendations of the Advisory Committee on Fair Trial and Free
Press (Advisory Committee), created in 1964 upon the recommendation
of the Warren Commission. The Warren Commission's report on the
assassination of President Kennedy included the recommendation
that
"representatives of the bar, law enforcement associations, and
the news media work together to establish ethical standards
concerning the collection and presentation of information to the
public so that there will be no interference with pending criminal
investigations, court proceedings, or the right of individuals to a
fair trial."
Report of the President's Commission on the Assassination of
President Kennedy (1964), quoted in Ainsworth, "Fair Trial-Free
Press," 45 F.R.D. 417 (1968). The Advisory Committee developed the
ABA Standards Relating to Fair Trial and Free Press, comprehensive
guidelines relating to disclosure of information concerning
criminal proceedings, which were relied upon by the ABA in 1968 in
formulating Rule 3.6. The need for, and appropriateness of, such a
rule had been identified by this Court two years earlier in
Sheppard v. Maxwell, supra at
384 U. S.
362-363. In 1966, the Judicial Conference of the United
States authorized a "Special Subcommittee to Implement
Sheppard
v. Maxwell" to proceed with a study of the necessity of
promulgating guidelines or taking other corrective action to shield
federal juries from prejudicial publicity.
See Report of
the Committee on the Operation of the Jury System on the "Free
Press-Fair Trial" Issue, 45 F.R.D. 391, 404-407 (1968). Courts,
responding to the recommendations in this report, proceeded to
enact local rules incorporating these standards, and thus the
"reasonable likelihood of prejudicing a fair trial" test was used
by a majority of courts,
Page 501 U. S. 1068
state and federal, in the years following
Sheppard. Ten
years later, the ABA amended its guidelines, and the "reasonable
likelihood" test was changed to a "clear and present danger" test.
ABA Standards for Criminal Justice 8-1.1 (as amended 1978) (2d
ed.1980, Supp. 1986).
When the Model Rules of Professional Conduct were drafted in the
early 1980's, the drafters did not go as far as the revised fair
trial-free press standards in giving precedence to the lawyer's
right to make extrajudicial statements when fair trial rights are
implicated, and instead adopted the "substantial likelihood of
material prejudice" test. Currently, 31 States in addition to
Nevada have adopted -- either verbatim or with insignificant
variations -- Rule 3.6 of the ABA's Model Rules. [
Footnote 2/1] Eleven States have adopted
Disciplinary Rule 7-107 of the ABA's Code of Professional
Responsibility, which is less protective of lawyer speech than
Model Rule 3.6, in that it applies a "reasonable likelihood of
prejudice" standard. [
Footnote 2/2]
Only one State, Virginia, has explicitly adopted a clear and
present danger standard, while four States and the District of
Columbia have adopted standards that arguably approximate "clear
and present danger." [
Footnote
2/3]
Page 501 U. S. 1069
Petitioner maintains, however, that the First Amendment to the
United States Constitution requires a State, such as Nevada in this
case, to demonstrate a "clear and present danger" of "actual
prejudice or an imminent threat" before any discipline may be
imposed on a lawyer who initiates a press conference such as
occurred here. [
Footnote 2/4] He
relies on decisions such as
Nebraska Press Assn. v.
Stuart, 427 U. S. 539
(1976),
Bridges v. California, 314 U.
S. 252 (1941),
Pennekamp v. Florida,
328 U. S. 331
(1946), and
Craig v. Harney, 331 U.
S. 367 (1947), to support his position. In those cases
we held that trial courts might not constitutionally punish,
through use of the contempt power, newspapers and others for
publishing editorials, cartoons, and other items critical of judges
in particular cases. We held that such punishments could be imposed
only if there were a clear and present danger of "some serious
substantive evil which they are designed to avert."
Bridges v.
California, supra, at
314 U. S. 270. Petitioner also relies on
Wood v.
Georgia, 370 U.S.
Page 501 U. S. 1070
375 (1962), which held that a court might not punish a sheriff
for publicly criticizing a judge's charges to a grand jury.
Respondent State Bar of Nevada points out, on the other hand,
that none of these cases involved lawyers who represented parties
to a pending proceeding in court. It points to the statement of
Holmes, J., in
Patterson v. Colorado ex rel. Attorney General
of Colorado, 205 U. S. 454,
205 U. S. 463
(1907), that,
"[w]hen a case is finished, courts are subject to the same
criticism as other people, but the propriety and necessity of
preventing interference with the course of justice by premature
statement, argument or intimidation hardly can be denied."
Respondent also points to a similar statement in
Bridges,
supra at
314 U. S.
271:
"The very word 'trial' connotes decisions on the evidence and
arguments properly advanced in open court. Legal trials are not
like elections, to be won through the use of the meeting hall, the
radio, and the newspaper."
These opposing positions illustrate one of the many dilemmas
which arise in the course of constitutional adjudication. The above
quotes from
Patterson and
Bridges epitomize the
theory upon which our criminal justice system is founded: the
outcome of a criminal trial is to be decided by impartial jurors,
who know as little as possible of the case, based on material
admitted into evidence before them in a court proceeding.
Extrajudicial comments on, or discussion of, evidence which might
never be admitted at trial and
ex parte statements by
counsel giving their version of the facts obviously threaten to
undermine this basic tenet.
At the same time, however, the criminal justice system exists in
a larger context of a government ultimately of the people, who wish
to be informed about happenings in the criminal justice system,
and, if sufficiently informed about those happenings, might wish to
make changes in the system. The way most of them acquire
information is from the media. The First Amendment protections of
speech and press have been held, in the cases cited above, to
require a showing of
Page 501 U. S. 1071
"clear and present danger" that a malfunction in the criminal
justice system will be caused before a State may prohibit media
speech or publication about a particular pending trial. The
question we must answer in this case is whether a lawyer who
represents a defendant involved with the criminal justice system
may insist on the same standard before he is disciplined for public
pronouncements about the case, or whether the State, instead, may
penalize that sort of speech upon a lesser showing.
It is unquestionable that, in the courtroom itself, during a
judicial proceeding, whatever right to "free speech" an attorney
has is extremely circumscribed. An attorney may not, by speech or
other conduct, resist a ruling of the trial court beyond the point
necessary to preserve a claim for appeal.
Sacher v. United
States, 343 U. S. 1,
343 U. S. 8 (1952)
(criminal trial);
Fisher v. Pace, 336 U.
S. 155 (1949) (civil trial). Even outside the courtroom,
a majority of the Court in two separate opinions in the case of
In re Sawyer, 360 U. S. 622
(1959), observed that lawyers in pending cases were subject to
ethical restrictions on speech to which an ordinary citizen would
not be. There, the Court had before it an order affirming the
suspension of an attorney from practice because of her attack on
the fairness and impartiality of a judge. The plurality opinion,
which found the discipline improper, concluded that the comments
had not, in fact, impugned the judge's integrity. Justice Stewart,
who provided the fifth vote for reversal of the sanction, said in
his separate opinion that he could not join any possible
"intimation that a lawyer can invoke the constitutional right of
free speech to immunize himself from even-handed discipline for
proven unethical conduct."
Id. at
320 U. S. 646.
He said that "[o]bedience to ethical precepts may require
abstention from what in other circumstances might be
constitutionally protected speech."
Id. at
320 U. S.
646-647. The four dissenting Justices who would have
sustained the discipline said:
Page 501 U. S. 1072
"Of course, a lawyer is a person, and he too has a
constitutional freedom of utterance, and may exercise it to
castigate courts and their administration of justice. But a lawyer
actively participating in a trial, particularly an emotionally
charged criminal prosecution, is not merely a person, and not even
merely a lawyer."
"
* * * *"
"He is an intimate and trusted and essential part of the
machinery of justice, an 'officer of the court' in the most
compelling sense."
Id. at 666, 668 (Frankfurter, J., dissenting, joined by
Clark, Harlan, and Whittaker, JJ.).
Likewise, in
Sheppard v. Maxwell, where the defendant's
conviction was overturned because extensive prejudicial pretrial
publicity had denied the defendant a fair trial, we held that a new
trial was a remedy for such publicity, but
"we must remember that reversals are but palliatives; the cure
lies in those remedial measures that will prevent the prejudice at
its inception. The courts must take such steps by rule and
regulation that will protect their processes from prejudicial
outside interferences. Neither prosecutors, counsel for defense,
the accused, witnesses, court staff nor enforcement officers coming
under the jurisdiction of the court should be permitted to
frustrate its function.
Collaboration between counsel and the
press as to information affecting the fairness of a criminal trial
is not only subject to regulation, but is highly censurable and
worthy of disciplinary measures."
384 U.S. at
384 U. S. 363
(emphasis added). We expressly contemplated that the speech of
those participating before the courts could be limited. [
Footnote 2/5] This distinction
Page 501 U. S. 1073
between participants in the litigation and strangers to it is
brought into sharp relief by our holding in
Seattle Times Co.
v. Rhinehart, 467 U. S. 20
(1984). There, we unanimously held that a newspaper, which was
itself a defendant in a libel action, could be restrained from
publishing material about the plaintiffs and their supporters to
which it had gained access through court-ordered discovery. In that
case, we said that,
"[a]lthough litigants do not 'surrender their First Amendment
rights at the courthouse door,' those rights may be subordinated to
other interests that arise in this setting,"
id. at
467 U. S. 32-33,
n. 18 (citation omitted), and noted that,
"on several occasions, [we have] approved restriction on the
communications of trial participants where necessary to ensure a
fair trial for a criminal defendant."
Ibid.
Even in an area far from the courtroom and the pendency of a
case, our decisions dealing with a lawyer's right under the First
Amendment to solicit business and advertise, contrary to
promulgated rules of ethics, have not suggested that lawyers are
protected by the First Amendment to the same extent as those
engaged in other businesses.
See, e.g., Bates v. State Bar of
Arizona, 433 U. S. 350
(1977);
Peel v. Attorney Registration and Disciplinary Comm'n
of Ill., 496 U. S. 91
(1990);
Ohralik v. Ohio State Bar Assn., 436 U.
S. 447 (1978). In each of these cases, we engaged in a
balancing process, weighing the State's interest in the regulation
of a specialized profession against a lawyer's First Amendment
interest in the kind of speech that was at issue. These cases
Page 501 U. S. 1074
recognize the long-established principle stated in
In re
Cohen, 7 N.Y.2d 488, 495, 166 N.E.2d 672, 675 (1960):
"Appellant as a citizen could not be denied any of the common
rights of citizens. But he stood before the inquiry and before the
Appellate Division in another quite different capacity, also. As a
lawyer, he was 'an officer of the court, and, like the court
itself, an instrument . . . of justice. . . .'"
(quoted in
Cohen v. Hurley, 366 U.
S. 117,
366 U. S. 126
(1961)).
We think that the quoted statements from our opinions in
In
re Sawyer, 360 U. S. 622
(1959), and
Sheppard v. Maxwell, supra, rather plainly
indicate that the speech of lawyers representing clients in pending
cases may be regulated under a less demanding standard than that
established for regulation of the press in
Nebraska Press Assn.
v. Stuart, 427 U. S. 539
(1976), and the cases which preceded it. Lawyers representing
clients in pending cases are key participants in the criminal
justice system, and the State may demand some adherence to the
precepts of that system in regulating their speech, as well as
their conduct. As noted by Justice Brennan in his concurring
opinion in
Nebraska Press, which was joined by Justices
Stewart and MARSHALL,
"[a]s officers of the court, court personnel and attorneys have
a fiduciary responsibility not to engage in public debate that will
redound to the detriment of the accused or that will obstruct the
fair administration of justice."
Id. at
427 U. S. 601,
n. 27. Because lawyers have special access to information through
discovery and client communications, their extrajudicial statements
pose a threat to the fairness of a pending proceeding since
lawyers' statements are likely to be received as especially
authoritative.
See, e.g., In re Hinds, 90 N.J. 604, 627,
449 A.2d
483, 496 (1982) (statements by attorneys of record relating to
the case "are likely to be considered knowledgeable, reliable and
true" because of attorneys' unique access to information);
In
re Rachmiel, 90 N.J. 646, 656,
449 A.2d
505, 511 (1982) (attorneys' role as advocates
Page 501 U. S. 1075
gives them "extraordinary power to undermine or destroy the
efficacy of the criminal justice system"). We agree with the
majority of the States that the "substantial likelihood of material
prejudice" standard constitutes a constitutionally permissible
balance between the First Amendment rights of attorneys in pending
cases and the State's interest in fair trials.
When a state regulation implicates First Amendment rights, the
Court must balance those interests against the State's legitimate
interest in regulating the activity in question.
See, e.g.,
Seattle Times, supra at
467 U. S. 32.
The "substantial likelihood" test embodied in Rule 177 is
constitutional under this analysis, for it is designed to protect
the integrity and fairness of a State's judicial system, and it
imposes only narrow and necessary limitations on lawyers' speech.
The limitations are aimed at two principal evils: (1) comments that
are likely to influence the actual outcome of the trial, and (2)
comments that are likely to prejudice the jury venire, even if an
untainted panel can ultimately be found. Few, if any, interests
under the Constitution are more fundamental than the right to a
fair trial by "impartial" jurors, and an outcome affected by
extrajudicial statements would violate that fundamental right.
See, e.g., Sheppard, 384 U.S. at
384 U. S.
350-351;
Turner v. Louisiana, 379 U.
S. 466,
379 U. S. 473
(1965) (evidence in criminal trial must come solely from witness
stand in public courtroom with full evidentiary protections). Even
if a fair trial can ultimately be ensured through
voir
dire, change of venue, or some other device, these measures
entail serious costs to the system. Extensive
voir dire
may not be able to filter out all of the effects of pretrial
publicity, and with increasingly widespread media coverage of
criminal trials, a change of venue may not suffice to undo the
effects of statements such as those made by petitioner. The State
has a substantial interest in preventing officers of the court,
such as lawyers, from imposing such costs on the judicial system
and on the litigants.
Page 501 U. S. 1076
The restraint on speech is narrowly tailored to achieve those
objectives. The regulation of attorneys' speech is limited -- it
applies only to speech that is substantially likely to have a
materially prejudicial effect; it is neutral as to points of view,
applying equally to all attorneys participating in a pending case;
and it merely postpones the attorneys' comments until after the
trial. While supported by the substantial state interest in
preventing prejudice to an adjudicative proceeding by those who
have a duty to protect its integrity, the Rule is limited on its
face to preventing only speech having a substantial likelihood of
materially prejudicing that proceeding.
III
To assist a lawyer in deciding whether an extrajudicial
statement is problematic, Rule 177 sets out statements that are
likely to cause material prejudice. Contrary to petitioner's
contention, these are not improper evidentiary presumptions. Model
Rule 3.6, from which Rule 177 was derived, was specifically
designed to avoid the categorical prohibitions of attorney speech
contained in ABA Model Code of Professional Responsibility
Disciplinary Rule 7-107 (1981).
See ABA Commission on
Evaluation of Professional Standards, Model Rules of Professional
Conduct, Notes and Comments 143-144 (Proposed Final Draft, May 30,
1981) (Proposed Final Draft). The statements listed as likely to
cause material prejudice closely track a similar list outlined by
this Court in
Sheppard:
"The fact that many of the prejudicial news items can be traced
to the prosecution, as well as the defense, aggravates the judge's
failure to take any action. . . . Effective control of these
sources -- concededly within the court's power -- might well have
prevented the divulgence of inaccurate information, rumors, and
accusations that made up much of the inflammatory publicity. . . .
"
"More specifically, the trial court might well have proscribed
extrajudicial statements by any lawyer, party,
Page 501 U. S. 1077
witness, or court official which divulged prejudicial matters,
such as the refusal of Sheppard to submit to interrogation or take
any lie detector tests; any statement made by Sheppard to
officials; the identity of prospective witnesses or their probable
testimony; any belief in guilt or innocence; or like statements
concerning the merits of the case.
See State v. Van Duyne,
43 N.J. 369, 389,
204 A.2d
841, 852 (1964), in which the court interpreted Canon 20 of the
American Bar Association's Canons of Professional Ethics to
prohibit such statements."
384 U.S. at
384 U. S.
361.
Gentile claims that Rule 177 is overbroad, and thus
unconstitutional on its face, because it applies to more speech
than is necessary to serve the State's goals. The "overbreadth"
doctrine applies if an enactment "prohibits constitutionally
protected conduct."
Grayned v. City of Rockford,
408 U. S. 104,
408 U. S. 114
(1972). To be unconstitutional, overbreadth must be "substantial."
Board of Trustees of State University of N.Y. v. Fox,
492 U. S. 469,
492 U. S. 485
(1989). Rule 177 is no broader than necessary to protect the
State's interests. It applies only to lawyers involved in the
pending case at issue, and even those lawyers involved in pending
cases can make extrajudicial statements as long as such statements
do not present a substantial risk of material prejudice to an
adjudicative proceeding. The fact that Rule 177 applies to bench
trials does not make it overbroad, for a substantial likelihood of
prejudice is still required before the Rule is violated. That test
will rarely be met where the judge is the trier of fact, since
trial judges often have access to inadmissible and highly
prejudicial information and are presumed to be able to discount or
disregard it. For these reasons, Rule 177 is constitutional on its
face.
Gentile also argues that Rule 177 is void for vagueness because
it did not provide adequate notice that his comments were subject
to discipline. The void-for-vagueness doctrine is concerned with a
defendant's right to fair notice and adequate
Page 501 U. S. 1078
warning that his conduct runs afoul of the law.
See, e.g.,
Smith v. Goguen, 415 U. S. 566,
415 U. S.
572-573 (1974);
Colten v. Kentucky,
407 U. S. 104,
407 U. S. 110
(1972). Rule 177 was drafted with the intent to provide "an
illustrative compilation that gives fair notice of conduct
ordinarily posing unacceptable dangers to the fair administration
of justice." Proposed Final Draft 143. The Rule provides sufficient
notice of the nature of the prohibited conduct. Under the
circumstances of his case, petitioner cannot complain about lack of
notice, as he has admitted that his primary objective in holding
the press conference was the violation of Rule 177's core
prohibition -- to prejudice the upcoming trial by influencing
potential jurors. Petitioner was clearly given notice that such
conduct was forbidden, and the list of conduct likely to cause
prejudice, while only advisory, certainly gave notice that the
statements made would violate the Rule if they had the intended
effect.
The majority agrees with petitioner that he was the victim of
unconstitutional vagueness in the regulations because of the
relationship between § 3 and §§ 1 and 2 of Rule 177 (
see
ante at 1033-1034). Section 3 allows an attorney to state "the
general nature of the claim or defense" notwithstanding the
prohibition contained in § 1 and the examples contained in § 2. It
is, of course, true, as the majority points out, that the word
"general" and the word "elaboration" are both terms of degree. But
combined as they are in the first sentence of § 3, they convey the
very definite proposition that the authorized statements must not
contain the sort of detailed allegations that petitioner made at
his press conference. No sensible person could think that the
following were "general" statements of a claim or defense made
"without elaboration:"
"the person that was in the most direct position to have stolen
the rugs and the money . . . is Detective Steve Scholl;"
"there is far more evidence that will establish that Detective
Scholl took these drugs and took these American Express Travelers'
checks than any other living human being;"
"[Detective
Page 501 U. S. 1079
Scholl] either had a hell of a cold, or he should have seen a
better doctor;"
and
"the so-called other victims . . . one, two -- four of them are
known drug dealers and convicted money launderers."
Section 3, as an exception to the provisions of §§ 1 and 2, must
be read in the light of the prohibitions and examples contained in
the first two sections. It was obviously not intended to negate the
prohibitions or the examples wholesale, but simply intended to
provide a "safe harbor" where there might be doubt as to whether
one of the examples covered proposed conduct. These provisions were
not vague as to the conduct for which petitioner was
disciplined;
"[i]n determining the sufficiency of the notice, a statute must,
of necessity, be examined in the light of the conduct with which a
defendant is charged."
United States v. National Dairy Products Corp.,
372 U. S. 29,
372 U. S. 33
(1963).
Petitioner's strongest arguments are that the statement was made
well in advance of trial, and that the statements did not, in fact,
taint the jury panel. But the Supreme Court of Nevada pointed out
that petitioner's statements were not only highly inflammatory --
they portrayed prospective government witnesses as drug users and
dealers, and as money launderers -- but the statements were timed
to have maximum impact, when public interest in the case was at its
height immediately after Sanders was indicted. Reviewing
independently the entire record,
see Pennekamp v. Florida,
328 U.S. at
328 U. S. 335,
we are convinced that petitioner's statements were "substantially
likely to cause material prejudice" to the proceedings. While there
is evidence pro and con on that point, we find it persuasive that,
by his own admission, petitioner called the press conference for
the express purpose of influencing the venire. It is difficult to
believe that he went to such trouble, and took such a risk, if
there was no substantial likelihood that he would succeed.
While, in a case such as this, we must review the record for
ourselves, when the highest court of a State has reached a
determination, "we give most respectful attention to its
reasoning
Page 501 U. S. 1080
and conclusion."
Ibid. The State Bar of Nevada, which
made its own factual findings, and the Supreme Court of Nevada,
which upheld those findings, were in a far better position than we
are to appreciate the likely effect of petitioner's statements on
potential members of a jury panel in a highly publicized case such
as this. The board and the Nevada Supreme Court did not apply the
list of statements likely to cause material prejudice as
presumptions, but specifically found that petitioner had intended
to prejudice the trial, [
Footnote
2/6] and that, based upon the nature of the statements and
their timing, they were, in fact, substantially likely to cause
material prejudice. We cannot, upon our review of the record,
conclude that they were mistaken.
See United States v. United
States Gypsum Co., 333 U. S. 364,
333 U. S.
394-396 (1948).
Page 501 U. S. 1081
Several
amici argue that the First Amendment requires
the State to show actual prejudice to a judicial proceeding before
an attorney may be disciplined for extrajudicial statements, and,
since the board and the Nevada Supreme Court found no actual
prejudice, petitioner should not have been disciplined. But this is
simply another way of stating that the stringent standard of
Nebraska Press should be applied to the speech of a lawyer
in a pending case, and, for the reasons heretofore given, we
decline to adopt it. An added objection to the stricter standard
when applied to lawyer participants is that, if it were adopted,
even comments more flagrant than those made by petitioner could not
serve as the basis for disciplinary action if, for wholly
independent reasons, they had no effect on the proceedings. An
attorney who made prejudicial comments would be insulated from
discipline if the government, for reasons unrelated to the
comments, decided to dismiss the charges, or if a plea bargain were
reached. An equally culpable attorney whose client's case went to
trial would be subject to discipline. The United States
Constitution does not mandate such a fortuitous difference.
When petitioner was admitted to practice law before the Nevada
courts, the oath which he took recited that "I will support, abide
by and follow the Rules of Professional Conduct as are now or may
hereafter be adopted by the Supreme Court. . . ." Rule 73, Nevada
Supreme Court Rules (1991). The First Amendment does not excuse him
from that obligation, nor should it forbid the discipline imposed
upon him by the Supreme Court of Nevada.
I would affirm the decision of the Supreme Court of Nevada.
[
Footnote 2/1]
Arizona, Arkansas, Connecticut, Idaho, Indiana, Kansas,
Kentucky, Maryland, Mississippi, Missouri, New Mexico,
Pennsylvania, Rhode Island, South Carolina, West Virginia, and
Wyoming have adopted Model Rule 3.6 verbatim. Delaware, Florida,
Louisiana, Montana, New Hampshire, New Jersey, New York, Oklahoma,
South Dakota, Texas, and Wisconsin have adopted Model Rule 3.6 with
minor modifications that are irrelevant to the issues presented in
this case. Michigan and Washington have adopted only subsection (a)
of Model Rule 3.6, and Minnesota has adopted only subsection (a),
and limits its application to "pending criminal jury trial[s]."
Utah adopted a version of Model Rule 3.6 employing a "substantial
likelihood of materially influencing" test.
[
Footnote 2/2]
Alaska, Colorado, Georgia, Hawaii, Iowa, Massachusetts,
Nebraska, Ohio, Tennessee, and Vermont have adopted Disciplinary
Rule 7-107 verbatim. North Carolina also uses the "reasonable
likelihood of . . . prejudic[e]" test. Rule of Professional Conduct
7.7 (1991).
[
Footnote 2/3]
Illinois Rule of Professional Conduct 3.6 (1990) ("serious and
imminent threat to the fairness of an adjudicative proceeding");
Maine Bar Rule of Professional Responsibility 3.7(j) (1990)
("substantial danger of interference with the administration of
justice"); North Dakota Rule of Professional Conduct 3.6 (1990)
("serious and imminent threat of materially prejudicing an
adjudicative proceeding"); Oregon DR 7-107 (1991) ("serious and
imminent threat to the factfinding process in an adjudicative
proceeding and acts with indifference to that effect"); and the
District of Columbia DR 7-101 (Supp. 1991) ("serious and imminent
threat to the impartiality of the judge or jury").
[
Footnote 2/4]
We disagree with JUSTICE KENNEDY's statement that this case
"does not call into question the constitutionality of other States'
prohibitions upon an attorney's speech that will have a
"substantial likelihood of materially prejudicing an adjudicative
proceeding," but is limited to Nevada's interpretation of that
standard."
Ante at
501 U. S.
1034. Petitioner challenged Rule 177 as being
unconstitutional on its face in addition to as applied, contending
that the "substantial likelihood of material prejudice" test was
unconstitutional, and that lawyer speech should be punished only if
it violates the standard for clear and present danger set forth in
Nebraska Press Assn. v. Stuart, 427 U.
S. 539 (1976).
See Brief for Petitioner 27-31.
The validity of the rules in the many states applying the
"substantial likelihood of material prejudice" test has, therefore,
been called into question in this case.
[
Footnote 2/5]
The Nevada Supreme Court has consistently read all parts of Rule
177 as applying only to lawyers in pending cases, and not to other
lawyers or nonlawyers. We express no opinion on the
constitutionality of a rule regulating the statements of a lawyer
who is not participating in the pending case about which the
statements are made. We note that, of all the cases petitioner
cites as supporting the use of the clear and present danger
standard, the only one that even arguably involved a
non-third-party was
Wood v. Georgia, 370 U.
S. 375 (1962), where a county sheriff was held in
contempt for publicly criticizing instructions given by a judge to
a grand jury. Although the sheriff was technically an "officer of
the court" by virtue of his position, the Court determined that his
statements were made in his capacity as a private citizen, with no
connection to his official duties.
Id. at
370 U. S. 393.
The same cannot be said about petitioner, whose statements were
made in the course of, and in furtherance of, his role as defense
counsel.
[
Footnote 2/6]
JUSTICE KENNEDY appears to contend that there can be no material
prejudice when the lawyer's publicity is in response to publicity
favorable to the other side.
Ante at
501 U. S.
1041-1043. JUSTICE KENNEDY would find that publicity
designed to counter prejudicial publicity cannot be itself
prejudicial, despite its likelihood of influencing potential
jurors, unless it actually would go so far as to cause jurors to be
affirmatively biased in favor of the lawyer's client. In the first
place, such a test would be difficult, if not impossible, to apply.
But more fundamentally, it misconceives the constitutional test for
an impartial juror -- whether the "
juror can lay aside his
impression or opinion and render a verdict on the evidence
presented in court.'" Murphy v. Florida, 421 U.
S. 794, 421 U. S. 800
(1975) (quoting Irvin v. Dowd, 366 U.
S. 717, 366 U. S. 723
(1961)). A juror who may have been initially swayed from
open-mindedness by publicity favorable to the prosecution is not
rendered fit for service by being bombarded by publicity favorable
to the defendant. The basic premise of our legal system is that
lawsuits should be tried in court, not in the media. See, e.g.,
Bridges v. California, 314 U. S. 252,
314 U. S. 271
(1941); Patterson v. Colorado ex rel. Attorney General of
Colorado, 205 U. S. 454,
205 U. S. 462
(1970). A defendant may be protected from publicity by, or in favor
of, the police, and prosecution through voir dire, change
of venue, jury instructions, and, in extreme cases, reversal on due
process grounds. The remedy for prosecutorial abuses that violate
the rule lies not in self-help in the form of similarly prejudicial
comments by defense counsel, but in disciplining the
prosecutor.
JUSTICE O'CONNOR, concurring.
I agree with much of THE CHIEF JUSTICE's opinion. In particular,
I agree that a State may regulate speech by lawyers representing
clients in pending cases more readily than it may regulate the
press. Lawyers are officers of the court,
Page 501 U. S. 1082
and, as such, may legitimately be subject to ethical precepts
that keep them from engaging in what otherwise might be
constitutionally protected speech.
See In re Sawyer,
360 U. S. 622,
360 U. S.
646-647 (1959) (Stewart, J., concurring in result). This
does not mean, of course, that lawyers forfeit their First
Amendment rights, only that a less demanding standard applies. I
agree with THE CHIEF JUSTICE that the "substantial likelihood of
material prejudice" standard articulated in Rule 177 passes
constitutional muster. Accordingly, I join Parts I and II of THE
CHIEF JUSTICE's opinion.
For the reasons set out in
501 U. S.
however, I believe that Nevada's Rule is void for vagueness.
Section (3) of Rule 177 is a "safe harbor" provision. It states
that, "notwithstanding" the prohibitory language located elsewhere
in the Rule, "a lawyer involved in the investigation or litigation
may state without elaboration . . . [t]he general nature of the
claim or defense." Gentile made a conscious effort to stay within
the boundaries of this "safe harbor." In his brief press
conference, Gentile gave only a rough sketch of the defense that he
intended to present at trial --
i.e., that Detective
Scholl, not Grady Sanders, stole the cocaine and traveler's checks.
When asked to provide more details, he declined, stating explicitly
that the ethical rules compelled him to do so.
Ante at
501 U. S.
1049. Nevertheless, the disciplinary board sanctioned
Gentile because, in its view, his remarks went beyond the scope of
what was permitted by the Rule. Both Gentile and the disciplinary
board have valid arguments on their side, but this serves to
support the view that the Rule provides insufficient guidance. As
JUSTICE KENNEDY correctly points out, a vague law offends the
Constitution because it fails to give fair notice to those it is
intended to deter, and creates the possibility of discriminatory
enforcement.
See Pacific Mut. Life Ins. Co. v. Haslip,
499 U. S. 1,
499 U. S. 42
(1991) (O'CONNOR, J., dissenting). I join Parts III and VI of
JUSTICE KENNEDY's opinion reversing the judgment of the Nevada
Supreme Court on that basis.