In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court struck down judicially imposed limits on attorney speech as too vague.

Nevada Supreme Court Rule 177 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. 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.

Four justices joined Justice Anthony M. Kennedy’s opinion on the issue of vagueness, while four signed on to Chief Justice William H. Rehnquist’s opinion on the substantial likelihood of material prejudice test. Justice Sandra Day O’Connor cast the deciding vote on both issues. Kennedy and four justices found the Nevada rule void for vagueness. 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.

Rehnquist argued that the state supreme court’s standard that statements must cause a substantial likelihood of material prejudice 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. 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.

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