The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_1836/89_1836.o

Text File | 1991-06-26 | 59KB | 977 lines

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.