Subject:  GENTILE v. STATE BAR OF NEVADA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


GENTILE v. STATE BAR OF NEVADA


certiorari to the supreme court of nevada

No. 89-1836.  Argued April 15, 1991 -- Decided June 27, 1991

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. ---, 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' 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. 16-19.

    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. 4-15.

    (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, 8, and, in a pending case, is limited outside the
courtroom as well, see, e. g., Sheppard v. Maxwell, 384 U. S. 333, 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. 4-13.

    (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 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. 13-15.

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.  O'Connor, J., filed a concurring opinion.

------------------------------------------------------------------------------




Subject: 89-1836 -- OPINION, GENTILE v. STATE BAR OF NEVADA

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1836



DOMINIC P. GENTILE, PETITIONER v.
STATE BAR OF NEVADA


on writ of certiorari to the supreme court of nevada

[June 27, 1991]



    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.
    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 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 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
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, 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., --- U. S. --- (1991) (ban on nude barroom dancing);
Leathers v. Med lock, 499 U. S. --- (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 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. ---, --- (1990) (slip op., at 7).
    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, 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, 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, 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
268-269.


In Sheppard v. Maxwell, 384 U. S. 333, 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, 606 (1976) (Brennan, J., concurring in
judgment) ("commentary 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, 727-728 (1988)
(Scalia, J., dissenting).  The public has an interest in its responsible
exercise.

B
    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, 353 (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
842-843.


    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
844; Wood v. Georgia, 370 U. S. 375 (1962); and Bridges v. California,
supra, at 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 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, 499 (1984),
(quoting New York Times Co. v. Sullivan, 376 U. S. 254, 284-286 (1964)).
    Neither the disciplinary board nor the reviewing court explain 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, 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 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
844 (quoting Whitney v. California, 274 U. S. 357, 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. ---
(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 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 Sargeant 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 U. S. 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.  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 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 drugrelated 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.
    B. 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 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 Bd.  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


"(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.
    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, 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.
    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."  Infra, at Appendix A; 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 Bd. {1}  The Chief
Deputy District Attorney was 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."
Ibid.  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 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 Bd.
    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,

"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, 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 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 infra, Appendix A, 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
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."
Id., at 11a (emphasis added). {2}
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 Court's rejection of petitioner's defense based on
Rule 177(3) was just as terse, App. to Pet. for Cert. 4a.  The fact 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, 357-358, 361 (1983); Smith v. Goguen,
415 U. S. 566, 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 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 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 Illinois, 496 U. S. --- (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 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 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 ---.  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 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 32 (quoting Procunier v.
Martinez, 416 U. S. 396, 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 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 Boston 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 ("data 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 pre-trial 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 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 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. {3}

VI
    The judgment of the Supreme Court of Nevada is

Reversed.




89-1836 -- APPENDIX


GENTILE v. STATE BAR OF NEVADA



89-1836 -- APPENDIX


GENTILE v. STATE BAR OF NEVADA
 



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 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 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.
    "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 Law 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.]

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.
    "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 rec ord 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;
    "(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 of ficers or agencies
and the length of the in vestigation."


[HERMES SUBSCRIBERS PLEASE NOTE -- appendix follows this file]
------------------------------------------------------------------------------
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.
"2-5-88: 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).

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 say 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.

3
    Petitioner argues that Rule 177(2) is a categorical speech prohibition
which fails First Amendment analysis because of overbreath.  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 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.





Subject: NOTE: HERMES SUBSCRIBERS, FOLLOWING IS THE APPENDIX TO 89-1836 --



GENTILE v. STATE BAR OF NEVADA



89-1836 -- APPENDIX


GENTILE v. STATE BAR OF NEVADA
 



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 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 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.
    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 Law 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.]

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.
    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;
    (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.
------------------------------------------------------------------------------




Subject: [NOTE: HERMES SUBSCRIBERS -- COMBINED OPINION & DISSENT], 89-1836 --
OPINION/DISSENT



GENTILE v. STATE BAR OF NEVADA
 


    SUPREME COURT OF THE UNITED STATES


No. 89-1836



DOMINIC P. GENTILE, PETITIONER v.
STATE BAR OF NEVADA


on writ of certiorari to the supreme court of nevada

[June 27, 1991]



    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 have
joined.
    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: 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 are
going to say now that you can believe them."  App. 27-28.


    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 28.


    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
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."  Gentile v. State Bar
of Nevada, 106 Nev. 60, ---, 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 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:
"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 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, 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 jurisdicitons.  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."


    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 TrialFree 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 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, 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 Standard 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. {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.
{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."
{3}
    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. {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
270.  Petitioner also relies on Wood v. Georgia, 370 U. S. 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, 205 U. S. 454, 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 in timidation hardly can be
denied."  Respondent also points to a similar statement in Bridges, supra,
at 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 "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, 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 evenhanded
discipline for proven unethical conduct."  Id, at 646.  He said that
"[o]bedience to ethical precepts may require abstention from what in other
circumstances might be constitutionally protected speech."  Id., at
646-647.  The four dissenting Justices who would have sustained the
discipline said:

"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 363 (emphasis added).


We expressly contemplated that the speech of those participating before the
courts could be limited. {5}  This distinction 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 accessthrough 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 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 Illinois, 496 U. S. --- (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 recognize the
long-established principle stated in In re Cohen, 7 N. Y. 2nd 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, 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."  427 U. S., at 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 (N. J. 1982) (attorneys'
role as advocates 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
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 350-351; Turner v. Louisiana, 379 U. S. 466, 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.
    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
attorney's 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, 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 Dyne, 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 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, 114 (1972).  To be unconstitutional, overbreadth
must be "substantial."  Board of Trustees of State University of New York
v. Fox, 492 U. S. 469, 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 warning that his conduct runs afoul of the law.
See, e. g., Smith v. Goguen, 415 U. S. 566, 572-573 (1974); Colten v.
Kentucky, 407 U. S. 104, 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 MDRV 3 and 15 1 and 2 of rule 177 (see infra, p. 3-4).  Section 3
allows an attorney to state "the general nature of the claim or defense"
notwithstanding the prohibition contained in MDRV 1 and the examples
contained in MDRV 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 MDRV 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 drugs 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 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."  MDRV 3, as an
exception to the provisions of 15 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,
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. 331, 335 (1946), 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 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 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, {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, 394-396 (1948).
    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 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.


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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.

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).

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 fact-finding 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").

4
    We disagree with Justice Kennedy's statement that this case "does not
call into question the constitutionality of other states' prohibitions upon
attorney speech that will have a `substantial likelihood of materially
prejudicing an adjudicative proceeding,' but is limited to Nevada's
interpretation of that standard."  Supra, at ---.  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.  See Petr.'s Br. 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.

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 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.

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.  Supra, at ---.  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, 800
(1975).  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 law suits should be tried in court, not in the
media.  See, e. g., Bridges, 314 U. S., at 271; Patterson, 205 U. S. at
462.  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.





Subject: 89-1836 -- CONCUR, GENTILE v. STATE BAR OF NEVADA

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1836



DOMINIC P. GENTILE, PETITIONER v.
STATE BAR OF NEVADA


on writ of certiorari to the supreme court of nevada

[June 27, 1991]



    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 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,
646-647 (1959) (Stewart, J., concurring in the 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 Part III of Justice Kennedy's opinion,
however, I believe that Nevada's rule is void for vagueness.  Subsection
(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 17.
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 Mutual Life Insurance Co. v. Haslip, --- U. S. ---, --- (1991)
(O'Connor, J., dissenting).  I join Parts III and VI of Justice Kennedy's
opinion and would reverse the judgment of the Nevada Supreme Court on that
basis.

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