Gentile and the First Amendment

Gentile and the First Amendment

Rule 3.6(a) forbids a lawyer who is participating or has participated in a matter from making an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.¹ Other rules limit lawyers' words too. Rule 4.2, for instance, bars a lawyer from communicating about the subject of the representation with anyone the lawyer knows to be represented by counsel in the matter, unless the other lawyer consents.² Rule 3.6 differs because it reaches statements made to the public, and a lawyer disciplined under it can invoke the First Amendment.

The Supreme Court tested that rule against the First Amendment in Gentile v. State Bar of Nevada. The Court approved the substantial-likelihood test for restricting lawyers' public statements, and the American Bar Association later amended Rule 3.6 in response to the decision.³

The Court spoke through two opinions on two different questions, and the answers diverged. In one portion, Chief Justice Rehnquist held that the substantial-likelihood standard protects speech sufficiently. In the other opinion of the Court, Justice Kennedy lifted the discipline, because Gentile could reasonably have believed that his statements fell within one of the rule's “safe harbor” exceptions.⁴ The standard survived and the lawyer went free. An answer that credits “the Court” with a holding without saying which question it resolved misstates the case.

The second question explains why Gentile follows the study of paragraph (b). A list of permitted statements, such as information contained in a public record, tells a lawyer in advance what may safely be said.⁵ If the list leaves the lawyer guessing, its protection is illusory, and discipline imposed afterward raises a fair-notice problem that has nothing to do with the soundness of paragraph (a). The subsections below begin with the press conference that produced the discipline, then take up the holding on the speech standard and the holding on the safe harbor.

The Gentile Press Conference

The discipline in Gentile grew out of a press conference that the defense lawyer held hours after his client was indicted. He read a prepared statement and then answered reporters' questions.⁶ Both holdings depend on what he said, when he said it, and what the public had already heard, so the facts deserve a careful reading.

The public had heard a one-sided account. Las Vegas Sheriff John Moran reported the theft at Western Vault at a press conference on February 2, 1987, and named the police and Western Vault employees as suspects.⁷ Two police officers, Detective Steve Scholl and Sergeant Ed Schaub, had free access to the deposit box throughout the period of the theft, and no log recorded comings and goings at the vault. Even so, press reports over the following year indicated that investigators did not consider those officers responsible and were focused on Western Vault and its owner. The sheriff had “complete faith and trust” in his officers.⁸

Before the indictment, the prosecution and police regularly told the press that the officers with access to the vault had been cleared after an internal investigation and that the investigation was focused on the defendant. They also referred to his supposed relationships with unsavory persons and his refusal to take a polygraph test.⁹

Gentile acted in part for his client's sake. Sanders was “not a man in good health,” having had multiple open-heart surgeries, and the mere suspicion of wrongdoing had already closed Western Vault and cost him the ground lease on an Atlantic City property.¹⁰

The evening before the press conference, Gentile and two colleagues spent several hours researching an attorney's obligations under Rule 177, which turns on what a lawyer “knows or reasonably should know.”¹¹ Justice Kennedy stressed two facts about timing and place. A statement that reaches the venire, the panel of citizens from whom a jury is drawn, on the eve of voir dire might require a continuance or complicate jury selection, but the same statement made six months before trial would not result in prejudice, because its content would fade from memory long before the trial date. And Clark County had a population above 600,000 in 1988, so given the size of the community and the time before trial, only the most damaging information could give rise to any likelihood of prejudice.¹²

The statements themselves were aimed at the government. Gentile asserted, 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.”¹³

Only a small fraction of his remarks reached the public, in two newspaper stories and two television news broadcasts, and those reports also covered a prosecution response and a police press conference. Much of what he said had already been published in one form or another, and the rest was available to any journalist willing to do a little investigating.¹⁴ He also held back. Unlike the police, he refused to comment on polygraph tests beyond confirming earlier reports that Sanders had not submitted to the police polygraph, and he mentioned no confessions and no evidence from searches or test results. He declined to elaborate on his charge that the other so-called victims were not credible, offering only a general theory that they were pressured to testify to avoid drug-related legal trouble and that some may have made claims to collect insurance money.¹⁵ Declining to name which of them had drug backgrounds, he said: “I can't because ethics prohibit me from doing so. . . . There are things that I can say and there are things that I can't.”¹⁶

The trial took place on schedule in August 1988, with no request by either party for a change of venue or a continuance. The jury was empaneled with no apparent difficulty, and the judge questioned the venire about publicity. Many prospective jurors had vague recollections of reports that cocaine stored at Western Vault had been stolen from a police undercover operation, and one remembered that the police had been cleared of suspicion, but not a single juror recalled Gentile or his press conference. At trial, all the material information disseminated at the press conference was admitted in evidence, including information questioning the motives and credibility of the supposed victims and Detective Scholl's ingestion of drugs in undercover operations, which he testified he did to gain the confidence of suspects.¹⁷ The jury acquitted the client on all counts.¹⁸

The State Bar of Nevada then charged Gentile with violating Nevada Supreme Court Rule 177, a pretrial publicity rule almost identical to Model Rule 3.6. The Southern Nevada Disciplinary Board found that he had made the statements and violated the rule, and it recommended a private reprimand. Gentile appealed to the Nevada Supreme Court, waiving the confidentiality of the proceeding, and that court affirmed.¹⁹ Rule 177(1) prohibited an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication, if a reasonable lawyer would know that it would have a substantial likelihood of materially prejudicing an adjudicative proceeding. Rule 177(3) purported to provide a “safe harbor,” listing statements, such as the general nature of the defense or information in a public record, that a lawyer could make “notwithstanding” the earlier subsections.²⁰

Justice Kennedy treated the later record as probative. The rule's standard must be judged at the time a statement is made, but evidence from afterward can have probative value in some cases, and here the record was devoid of facts one would expect to follow any statement that created a real likelihood of material prejudice to a criminal jury trial.²¹ The facts to carry forward are the timing, the size of the county, Gentile's preparation, what he did and did not discuss, the absence of any juror recollection, and the safe harbor in the rule he was accused of violating.

A Lesser Speech Standard

Rule 3.6(a) restricts speech, so a lawyer disciplined under it can argue that the First Amendment demands more than a “substantial likelihood” of “materially prejudicing an adjudicative proceeding.”²³ In the opinion written by Chief Justice Rehnquist, the Court rejected that argument and held the standard sufficiently protective of speech.²⁴ The Court approved Rule 177's general test, which prohibits lawyers from publicly disseminating information that they reasonably know has a substantial likelihood of materially prejudicing an adjudicative proceeding.²⁵ This holding concerns the standard only. Whether Gentile himself could be punished turned on a separate question about the safe harbor, which the next subsection takes up.

The comparison point is the protection an ordinary speaker would receive. Had Gentile been an ordinary citizen, the state could have intervened only to prevent a “clear and present” danger of interference with the proceeding. The Court applied a lower level of protection to lawyers, who are officers of the court. “Lawyers representing clients in pending cases are key participants in the criminal justice system,” the Chief Justice wrote, “and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct.”²⁶

The contrast case is Nebraska Press Association v. Stuart, which concerned an order against the press. The opinion there insisted that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” so that a “heavy burden” must be met. The Court found that the threat the publicity posed to the fairness of the trial was not shown to be sufficiently grave and that the unavailability of less drastic remedies was not proven. Two Justices who joined the majority wrote separately to express “grave doubt” whether a gag order would “ever be justifiable.”²⁷ The Gentile test is less strict because a silence order against lawyers runs against people who represent parties to the proceeding, while the order in the earlier case ran against the press, which is not a party.²⁸

Several reasons support treating lawyers differently. Attorneys and court personnel, as officers of the court, have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or obstruct the fair administration of justice, and a court likely has the power to control their release of information through limits enforceable by disciplinary proceedings.²⁹ Proponents of lesser standards add that a silence order against lawyers does not restrain publication of material the media already holds. It imposes only an incidental burden on one means by which the press acquires information, because in these limited circumstances the press cannot use trial participants as a source. They also argue that trial participants have a special relationship to the court that carries obligations of trust and confidentiality.³⁰ Sheppard v. Maxwell points the same way. The Court there found that massive publicity had denied the defendant a fair trial and said the trial judge should have made some effort to prevent the spread of prejudicial information, one technique being to limit extrajudicial statements by lawyers, parties, witnesses, and other participants.³¹

The Chief Justice's portion also stressed what the rule does not do. The test is neutral as to points of view, and it does not forbid the lawyer from speaking but only postpones the comment until after the trial.³² In practice, courts enforce attorney ethics rules and increasingly use restraining orders on the people under their control, including the attorneys, the police, and witnesses. Such silence orders will not be upheld unless there is a substantial likelihood of material prejudice.³³

Justice Kennedy's analysis of the standard took a more guarded view, and it should be kept apart from the holding. He wrote that Model Rule 3.6's substantial-likelihood requirement 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, it might punish only speech that creates a danger of imminent and substantial harm. A rule governing speech need not use the words “clear and present danger” to pass constitutional muster.³⁴ His concern was how Nevada applied the rule. Neither the disciplinary board nor the reviewing court explained any sense in which Gentile's statements had a substantial likelihood of causing material prejudice, and the Bar's whole case rested on the fact of the statements, the time they were made, and Gentile's own justifications. Full deference to the factual findings, he wrote, did not justify abdicating the responsibility to decide whether the statements could be punished consistent with First Amendment standards.³⁵ He also rejected one rationale for restriction. If the dangers of a lawyer's speech arise from its persuasiveness, from the lawyer's ability to explain judicial proceedings, or from the likelihood the speech will be believed, those dangers cannot validate a restriction, because “[t]he First Amendment does not permit suppression of speech because of its power to command assent.”³⁶

Two limits keep the holding in proportion. The reprimand was still set aside, because Justice Kennedy's opinion found that Gentile could reasonably have believed he was within a safe-harbor exception, so approval of the standard did not end the matter for the lawyer.³⁷ And although this lawyer escaped punishment, the states emerged from Gentile with broad power to restrict lawyers' commentary about pending cases, even though experienced lawyers seem adroit at skirting the limits of such rules.³⁸

The Vague Safe Harbor

In the other opinion of the Court, Justice Kennedy held that Nevada's rule, as interpreted by the Nevada Supreme Court, was void for vagueness, because its safe harbor provision, Rule 177(3), misled Gentile into thinking he could give his press conference without fear of discipline.⁴⁰ A rule is vague when it fails to provide “fair notice to those to whom [it] is directed,” a formulation the Court took from Grayned v. City of Rockford.⁴¹ This holding differs from the one before it. It rests on how the safe harbor was written, and it leaves in place the substantial-likelihood standard that the Rehnquist portion of the opinion approved.⁴²

The text shows the defect. Rule 177(3) began, “Notwithstanding subsection 1 and 2(a-f), a lawyer involved in the investigation or litigation of a matter may state without elaboration,” and then listed permitted statements.⁴³ The first, in paragraph (a), was the general nature of the claim or defense. By the necessary operation of “notwithstanding,” a lawyer who described the general nature of the defense without elaboration need fear no discipline, even if he commented on the character, credibility, reputation, or criminal record of a witness, and even if he knew or reasonably should have known that the statement would have a substantial likelihood of materially prejudicing the proceeding.⁴⁴ The safe harbor therefore overrides the prohibition, so everything turns on where its edge lies, and a lawyer must be able to find that edge before he speaks.

The edge was not marked. The right to explain the “general” nature of the defense without “elaboration” provides insufficient guidance, the Court explained, because “general” and “elaboration” are both classic terms of degree, and in this context they 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.”⁴⁵ Given that grammatical structure, and absent any clarifying interpretation by the state court, a lawyer who tries to use the protection of Rule 177(3) must guess at its contours.⁴⁶ A lawyer who tells reporters that the defense will show the police are the real culprits has described the defense, but whether he has described it generally or elaborately is a question the rule gives him no way to answer.

A boundary like that does harm in two ways. A careful lawyer who cannot tell whether a remark falls inside the line must either guess or stay silent, and silence forfeits speech the safe harbor promised to allow. And when the rule supplies no principle for the line, the body applying it can supply one after the fact. Justice Kennedy named that danger: the safe harbor appears to permit the speech in question, and Nevada's decision to discipline Gentile in spite of it raises concerns of vagueness and selective enforcement.⁴⁷

Gentile illustrates the doctrine because he did what a careful lawyer would do. He testified that he thought Rule 177(3) protected his statements, and a review of the press conference supports that claim: he gave only a brief opening statement and on numerous occasions declined to answer reporters' questions seeking more detailed comments.⁴⁸ He had also studied the rule the night before.⁴⁹ The doctrine asks whether the rule gave a person in his position some way to comply, and a lawyer who studies the rule, tries to stay within it, and is disciplined anyway shows how hard compliance was.

The vagueness holding sets aside Gentile's discipline because he could reasonably have believed his remarks were within the safe harbor. It does not say that the remarks were wise or harmless.⁵⁰ Taken together, the Court's two opinions left the states broad power to restrict lawyers' comments about pending cases, even though this lawyer escaped punishment.⁵¹

The American Bar Association responded in 1994 by revising Rule 3.6 to provide a specific exception to the bar on prejudicial extrajudicial publicity for attorneys responding on behalf of clients to prejudicial publicity generated by another person.⁵² Rule 3.6 also lists permitted statements, such as “information contained in a public record,” which a lawyer can verify against the record itself.⁵³ Nevada had permitted that same category only inside a safe harbor introduced by the words “without elaboration.”⁵⁴ A listed category gives the lawyer something to check; “general” and “elaboration” do not.

The right of reply speaks to Gentile's predicament, because he spoke into publicity that police and prosecutors had generated about cleared officers, a defendant under suspicion, and a refused polygraph. Rule 3.6(c) now provides that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client,” limited to “such information as is necessary to mitigate the recent adverse publicity.”⁵⁵ The response should not become a new form of prejudicial publicity on an aspect of the case unrelated to the publicity that prompted it.⁵⁶ The next section examines that right.