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Gentile v. State Bar of Nev. - 501 U.S. 1030, 111 S. Ct. 2720 (1991)


Nevada Supreme Court Rule 177 is void for vagueness since its safe harbor provision, which states that a lawyer may publicly state without elaboration the general nature of a criminal defense, misleads attorneys into thinking that they may give press conferences commenting on a client's arrest without fear of discipline. A court reviewing limitations on U.S. Const. I freedoms must balance whether the practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression' and whether the limitation of U.S. Const. Ifreedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved.


Petitioner Gentile, an attorney, held a press conference the day after his client, Sanders, was indicted on criminal charges under Nevada law. Petitioner, through a prepared statement, alleged that the evidence demonstrated his client’s innocence, and that certain witnesses were not credible, as most of them were drug dealers or convicted money launderers. Petitioner then took questions from reporters but declined, on numerous occasions, to answer questions that sought more detailed comments. Six months later, petitioner’s client was acquitted on all counts. The State Bar of Nevada then filed a complaint against petitioner, alleging a violation of Nevada Supreme Court Rule 177, a rule governing pretrial publicity. The aforementioned Rule prohibited an attorney from making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer should reasonably know that the statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding. According to Nevada Supreme Court Rule 177(2), statements relating to the character, credibility, reputation, or criminal record of a witness were ordinarily likely to have such a materially prejudicial effect. Notwithstanding the prohibition on Rule 177(1) and Rule 177(2), however, Rule 177(3) provided that a lawyer was permitted to state without elaboration the general nature of the defense. Petitioner was disciplined, and appealed, arguing violation of his U.S. Const. amend. I rights.


Was Nevada Supreme Court Rule 177, a rule governing pretrial publicity that included a "safe harbor" provision, valid as interpreted by the state court, thereby justifying the disciplinary action imposed upon petitioner attorney?




The Supreme Court of the United States reversed the judgment. The Court held that the rule’s “substantial likelihood of material prejudice” test satisfied the Federal Constitution’s First Amendment; however, the rule, as interpreted by the Nevada Supreme Court, was void for vagueness. According to the Court, its safe harbor provision, Rule 177(3), misled Gentile into thinking that he could give his press conference without fear of discipline. Given the Rule's grammatical structure and the absence of a clarifying interpretation by the state court, the Rule failed to provide fair notice to those to whom it is directed and was so imprecise that discriminatory enforcement was a real possibility. By necessary operation of the word "notwithstanding," the Rule contemplated that a lawyer describing the "general" nature of the defense without "elaboration" need fear no discipline even if he knew or reasonably should know that his statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding. A review of the press conference -- where Gentile made only a brief opening statement and declined to answer reporters' questions seeking more detailed comments -- supported his claim that he thought his statements were protected. Accordingly, the Court reversed petitioner’s disciplinary action.

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