In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court struck down Nevada’s judicially imposed limits on attorney speech as too vague while also upholding the constitutionality of some restrictions on attorney speech.
Law restricted statements by attorneys
This case involved statements made at a press conference by Dominic Gentile, a Las Vegas–based criminal defense attorney, who had asserted his client’s innocence and said that the police were corrupt.
Nevada Supreme Court Rule 177 had placed limits on statements an attorney could make if he or she “knows or reasonably should know that it will have a substantial likelihood of materially prejudicing” the finder of fact in a case.
Court formed two opinions
Four justices joined Justice Anthony M. Kennedy’s majority opinion finding the Nevada rule void for vagueness, while four signed on to Chief Justice William H. Rehnquist’s opinion upholding the substantial likelihood of material prejudice test. Justice Sandra Day O’Connor wrote a concurring opinion agreeing to overturn the Nevada law on the issue of vagueness while also agreeing with Rehnquist’s opinion that the substantial likelihood test was constitutional
Nevada rule found to be too vague
The majority opinion explained that in specific, the safe harbor provision of the rule — which allowed attorneys to make certain classes of statements in spite of the rule’s prohibition — failed to provide adequate notice to Gentile that his statements were barred. The Court held that the rule’s use of such words as general and elaboration, both classic terms of degree, failed, in the language of Grayned v. City of Rockford (1972), to provide “fair notice to those to whom it is directed.”
The Court also found that Gentile had made efforts to comply with the rule but still ran afoul of its strictures. The risk of discriminatory enforcement was enough to justify the Court’s finding even if petitioner could not make such a showing in this case.
Substantial likelihood test found to be constitutional
Rehnquist argued that the state supreme court’s standard of barring statements that would cause a substantial likelihood of material prejudice in a case was sufficient to protect Gentile’s interest.
The chief justice borrowed from the clear and present danger test in deciding whether a state may prohibit media speech or publication about a pending trial. The Court held that when First Amendment rights are implicated, those interests must be balanced against the state’s legitimate interest in regulating the activity in question. It found that the substantial likelihood test fit this mold because it was designed to protect the integrity and fairness of the state judicial system and imposed only narrow and necessary limitations on lawyers’ speech.
The justices in Gentile did not rule whether a standard lower than the substantial likelihood of material prejudice would satisfy constitutional muster, and in 1999 the Fourth Circuit Court of Appeals ruled in In Re Morrissey that a reasonable likelihood of material prejudice standard did not violate the First Amendment.
Alan Tauber is a constitutional law attorney in Washington. In addition to a law degree from George Washington University School of Law, Tauber has a master’s degree in political science. This article was originally published in 2009.