501 U.S. 1050 (1991)
Gentile, a Las Vegas criminal defense attorney, represented Grady Sanders, the owner of Western Vault Corporation.1 On January 31, 1987, undercover police officers with the Las Vegas Metropolitan Police Department reported that four kilograms of cocaine and almost $300,000 in travelers' checks were missing from a safety deposit vault at Western Vault.2 The items had been used as part of an undercover operation conducted by Metro's Intelligence Bureau.3 Sheriff John Moran held a press conference on February 2, 1987, naming the police and Western Vault employees as suspects.4
Over the following year, press reports indicated that investigators focused on Sanders and Western Vault rather than the two police officers who enjoyed free access to the vault.5 Reports described other customers claiming missing items, Western Vault suffering heavy losses and going out of business, police officers being cleared after passing lie detector tests administered by Ray Slaughter, and Sanders refusing a police polygraph.6 One report noted that $264,900 in currency had been seized from an unrented box at Western Vault.7
Hours after Sanders was indicted, Gentile held a press conference on February 5, 1988.8 He stated that the evidence would prove Sanders innocent, that Detective Steve Scholl was the person most likely to have stolen the drugs and checks, and that four of the other alleged victims were known drug dealers and convicted money launderers who had been pressured by police after getting into trouble themselves.9 Gentile had researched Rule 177 the evening before with two colleagues and concluded that the timing six months before trial and the general nature of his comments placed the statements within the rule's safe harbor.10
Six months later the criminal case was tried to a jury in August 1988 and Sanders was acquitted on all counts.11 The trial judge questioned the jury venire about publicity, but not a single juror indicated any recollection of Gentile or his press conference.12 The State Bar of Nevada then filed a complaint against Gentile alleging a violation of Rule 177.13 Following a hearing, the Southern Nevada Disciplinary Board found that Gentile had made the statements and recommended a private reprimand.14 Gentile appealed to the Nevada Supreme Court, which affirmed the decision of the board.15
Whether Nevada's application of Rule 177 to discipline petitioner for his February 1988 press conference statements violated the First Amendment?16
Speech critical of the exercise of the State's power lies at the very center of the First Amendment.17 A state may not punish an attorney's dissemination of information relating to alleged governmental misconduct unless the speech creates a substantial likelihood of material prejudice to an adjudicative proceeding.18
Yes. The established facts demonstrate that Gentile held the press conference hours after Sanders' indictment to counter repeated prejudicial publicity from police and prosecutors naming Sanders as the focus while clearing the two officers with vault access.
The statements were general in nature and made six months before trial in a community exceeding 600,000 persons.19 At trial no juror recalled the press conference while Sanders was acquitted on all counts.20
Nevada's application of Rule 177 violated the First Amendment.21
Related opinions on this issue
Justice O’Connor agreed that lawyers may be regulated more readily than the press because they are officers of the court.22 She also agreed that the substantial likelihood of material prejudice standard passes constitutional muster.23
Gentile made a conscious effort to stay within the safe harbor by giving only a rough sketch of the defense and declining to provide more details when asked.24 Nevertheless the disciplinary board sanctioned him.25 This demonstrates that the rule provides insufficient guidance and creates the possibility of discriminatory enforcement.26 She joined the reversal on vagueness grounds.27
Whether Nevada Supreme Court Rule 177's safe harbor provision permitting a lawyer to state without elaboration the general nature of the defense is unconstitutionally vague?28
Yes. The established facts show that Gentile researched Rule 177 the evening before the press conference.31 He gave only a brief opening statement describing the general nature of the defense that Detective Scholl was the likely thief.32 He repeatedly declined to elaborate when asked for details by citing ethics rules.33
Yet the disciplinary board and Nevada Supreme Court still found a violation.
Nevada Supreme Court Rule 177's safe harbor provision is unconstitutionally vague.34
Related opinions on this issue
Justice O’Connor joined Parts III and VI of Justice Kennedy’s opinion.35 She concluded that Nevada’s Rule is void for vagueness.36
Gentile made a conscious effort to stay within the boundaries of this safe harbor by giving only a rough sketch of the defense and declining to provide more details when asked, stating explicitly that the ethical rules compelled him to do so.37 Both Gentile and the disciplinary board had valid arguments on their side regarding whether the remarks went beyond the permitted scope.38 This imprecision in the rule's language created the risk of discriminatory enforcement against lawyers challenging state actions.39
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.40 She joined the reversal on vagueness grounds.
Whether the substantial likelihood of material prejudice standard in Rule 177 permits punishment of speech that creates no real or specific threat to an ongoing criminal proceeding?41
Even under the substantial likelihood of material prejudice standard, punishment of attorney speech requires an independent examination of the record showing a real and specific threat of imminent and substantial harm to the fairness of the proceeding, not merely the fact that statements were made.42
No. The established facts establish that the statements occurred six months before trial.43 They reached only a small fraction of the public through two newspaper stories and two broadcasts.44 The statements contained information already in prior press reports.45 There was no request for continuance or venue change.46 The jury venire was left with no recollection of Gentile or the conference.47
The substantial likelihood of material prejudice standard does not permit punishment of speech that creates no real or specific threat to an ongoing criminal proceeding.48