Gentile v. State Bar of Nevada
501 U.S. 1030 (1991)
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Rule of Law:
A state may constitutionally prohibit an attorney's extrajudicial statements that have a substantial likelihood of materially prejudicing a pending case. However, a rule containing a safe harbor provision that is too vague to provide fair notice of what speech is permitted is void for vagueness under the First Amendment.
Facts:
- Large amounts of cocaine and travelers' checks were reported stolen from a safety deposit vault owned by Grady Sanders.
- The Las Vegas police investigated the theft, focusing on Sanders while publicly clearing two of their own officers who had access to the vault.
- Over the next year, significant publicity, much of it from police sources, suggested Sanders was the culprit.
- After a grand jury indicted Sanders, his attorney, Dominic Gentile, held a press conference.
- At the press conference, Gentile stated his client was innocent, was being used as a 'scapegoat,' and that a specific police detective was the most likely suspect.
- Gentile also claimed that other alleged victims named in the indictment were not credible, as many were 'known drug dealers and convicted money launderers.'
- Approximately six months after the press conference, Sanders was tried and acquitted on all charges.
Procedural Posture:
- The State Bar of Nevada filed a disciplinary complaint against Dominic Gentile, alleging a violation of Nevada Supreme Court Rule 177.
- Following a hearing, the Southern Nevada Disciplinary Board found Gentile had violated the rule and recommended a private reprimand.
- Gentile appealed the board's decision to the Nevada Supreme Court.
- The Nevada Supreme Court, the state's highest court, affirmed the disciplinary board's decision.
- Gentile petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does a state bar rule that prohibits an attorney from making extrajudicial statements that have a 'substantial likelihood of materially prejudicing' a proceeding violate the First Amendment as applied, particularly when its safe harbor provision for explaining the 'general nature of the... defense' is unconstitutionally vague?
Opinions:
Majority - Justice Kennedy
Yes, Nevada's application of the rule violates the First Amendment. The rule is void for vagueness because its safe harbor provision, Rule 177(3), misled the petitioner into believing his statements were permissible. The provision allows a lawyer to state 'the general nature of the... defense' 'without elaboration,' but the terms 'general' and 'elaboration' are inherently subjective and provide no clear guidance. Gentile made a conscious effort to comply with the rule, even refusing to answer reporters' questions by citing ethical prohibitions. The fact that he was disciplined despite his attempt to comply demonstrates that the rule creates a trap for the wary lawyer and fails to provide the fair notice required by the Due Process Clause. This imprecision creates an impermissible risk of discriminatory enforcement, especially against criminal defense attorneys whose role is to challenge the state.
Dissenting - Chief Justice Rehnquist
No, the rule does not violate the First Amendment. The 'substantial likelihood of material prejudice' standard is a constitutionally permissible balance between an attorney's First Amendment rights and the state's interest in fair trials. Lawyers, as officers of the court, can be regulated under a less demanding standard than the press. Furthermore, the safe harbor provision was not vague as applied to Gentile's conduct. His statements were not a 'general' description of his defense; they were detailed, inflammatory allegations naming a detective as the thief and attacking the character of prospective witnesses. No sensible person could believe such specific and prejudicial comments, made with the admitted purpose of influencing the venire, fell within the safe harbor. The Nevada Supreme Court's finding that Gentile's statements were substantially likely to cause material prejudice should be affirmed.
Concurring - Justice O'Connor
Yes, the judgment should be reversed. I agree with the dissent that the 'substantial likelihood of material prejudice' standard is constitutional for regulating the speech of lawyers in pending cases. However, I agree with the majority that Nevada's rule is void for vagueness. The safe harbor provision fails to provide sufficient guidance, as evidenced by the fact that Gentile made a conscious effort to comply with it but was still sanctioned. The rule fails to give fair notice of what is prohibited and therefore cannot be constitutionally enforced.
Analysis:
This fractured decision establishes two key principles. First, a majority of the Court affirmed that states may regulate the speech of lawyers involved in pending cases using the 'substantial likelihood of material prejudice' standard, a less stringent test than the 'clear and present danger' standard applied to the press. Second, a different majority of the Court held that the specific Nevada rule was unconstitutional as applied because its safe harbor provision was too vague to provide fair notice. The case thus empowers states to regulate attorney speech to protect fair trials but simultaneously requires that such regulations be drafted with precision to avoid unconstitutional vagueness.
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