Summary of Gentile v. State Bar of Nevada
Citation: 501 U.S. 1030 (1991)

Relevant Facts: Petitioner Gentile is an attorney and member of the State Bar of Nevada, Respondent in this case. Gentile represented a client in a criminal case in Nevada. On the day his client was indicted, Gentile delivered a press conference wherein he briefly outlined his defense. Gentile explained to members of the press that another party, and not his client, was responsible for the theft of cocaine and travelers’ checks his client was charged with. Gentile specifically declined the opportunity to provide additional details, explaining that he was prevented from doing so by the rules of ethics. After his client was acquitted, Gentile was subject to a complaint from Respondent State Bar of Nevada for violating State Supreme Court rules prohibiting extrajudicial statements that “he knows or reasonably should know will have ‘a substantial likelihood of materially prejudicing’ an adjudicative proceeding.” However, under the rules an attorney may state the general nature of the defense. The Disciplinary Board found that Gentile had violated the Rule, and recommended that he be privately reprimanded as a result. The State Supreme Court agreed and affirmed, dismissing Gentile’s claim that the Rule violated his free speech rights.

Issue: May a state, consistent with the First Amendment, subject a lawyer to punishment for making extrajudicial statements that may prejudice judicial proceedings? Assuming a state may punish attorneys for such statements, is the Rule at issue here void nonetheless as unconstitutionally vague?

Holding: Yes, State Supreme Courts and other organizations charged with regulating attorney conduct may punish attorneys for making statements that may prejudice proceedings as attorneys operating within the judicial system are entitled a lesser degree of First Amendment protections. Yes, notwithstanding the lesser protections, the Rule at issue here is void for vagueness.

Reasoning: Chief Justice Rehnquist delivered the opinion of the Court with regard to Parts I and II of his opinion. Justice Kennedy delivered the opinion of the Court with regard to parts III and IV, and announced the judgment of the Court. Justice O’Connor was the swing vote, agreeing with Chief Justice Rehnquist in part and with Justice Kennedy in part and in the judgment of the Court. Chief Justice Rehnquist, writing for the Court with respect to Parts I and II, explained that attorneys are entitled to less First Amendment protections when speaking about pending matters. Furthermore, the appropriate standard for evaluating restrictions on attorney speech is less exacting than the “clear and present danger” (of actual prejudice or imminent threat) standard applicable to members of the press commenting on pending matters. Just as attorneys are subject to heightened standards restricting their speech in commercial solicitations, states also have a legitimate interest in regulating attorney conduct related to ongoing proceedings and afford attorneys less free speech rights accordingly. Chief Justice Rehnquist explained that the appropriate constitutional standard for attorney speech here was “substantial likelihood of material prejudice.” Attorneys play a special, and crucial, role in the adversarial system, but their special status and participation also affords them enhanced access to information. Attorneys may not engage in conduct, and speech, that threatens the impartiality of the proceedings by influencing the outcome. Impartial proceedings are paramount to the fair administration of justice. However, free speech is both important and constitutionally protected. States must narrowly tailor their restrictions to speech that meets the standards announced by the Court. Justice Kennedy, delivering the opinion of the Court with respect to parts III and IV, explained that the Rule in this case was void for vagueness. The rule restricted speech based on permissible standards, but the “safe harbor” provision allowed Gentile to reasonably believe he would not be subject to discipline for his comments during the press conference. Interpreting the language of the Rule, Justice Kennedy explained that the terms of the safe harbor provision explained that “notwithstanding” the preceding restrictions, attorneys could describe the “general” nature of the defense. Both words represent terms of degree, and were neither defined by the Rules nor clarified by prior interpretation. The record reflected that Gentile read the applicable rules and made an effort to comply, but still found to be in violation without clear guidance as to what was prohibited and what was permissible. Thus, Gentile was not provided with fair notice that his conduct would subject him to disciplinary, and the Rule posed a real possibility of discriminatory enforcement.

Concurrence: Justice O’Connor concurred. She explained that while she agreed with Chief Justice Rehnquist that attorneys were entitled to less First Amendment protection in the context of speech related to ongoing proceedings, she agreed with Justice Kennedy that the Rule was void for vagueness. As Justice O’Connor explained, both Gentile and the State Bar had valid arguments, which served to underscore the vagueness of the rule at issue. Justice Kennedy, in Parts I and II of his opinion (joined by Justices Marshall, Blackmun, and Stevens) agreed that attorneys are entitled to less protection than the press or public in commenting on judicial proceedings. Here, however, he concluded that there was insufficient evidence to conclude that Gentile’s statements posed a substantial risk of prejudice.

Dissent: Chief Justice Rehnquist, joined by Justices White, Scalia, and Souter, dissented with regard to Part III of his opinion. He explained that the comments on the Rule at issue provided sufficient notice to attorneys regarding prohibited conduct. Furthermore, Chief Justice Rehnquist explained that the timing of the press conference at issue was relevant in as much as Gentile sought to convey the message that the witness in an upcoming case were not trustworthy. Finally, Chief Justice Rehnquist explained that it was not necessary for the State to prove actual prejudice. In this case, Petitioner should have known that his comments posed a substantial likelihood of prejudice and had adequate notice that his comments were ethically impermissible.

Conclusion: Attorneys are afforded less First Amendment protections when commenting about ongoing judicial proceedings. However, in this case the majority of the Court concluded that the Rule at issue was unconstitutionally vague and subjected the Petitioner to punishment without fair notice that his specific conduct was prohibited.