Gentile V. State Bar Of Nevada: ImplicationsFor The Media

GENTILE V. STATE BAR OF NEVADA: IMPLICATIONS FOR THE MEDIAIn Gentile v. State Bar of Nevada(1) a narrowly divided United States Supreme Court held that while a state supreme court's rule that restricted attorney speech was void for vagueness, the standard employed by the rule did not violate the First Amendment.(2) The rule in question, Nevada Supreme Court Rule 177,(3) states that a lawyer involved in pending litigation cannot make statements to the press that the lawyer knows or should reasonably know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.(4) The question of whether such a restriction is a form of prior restraint, subject to strict constitutional scrutiny, has divided lower courts.(5) In upholding the "substantial likelihood" test, a majority of the Court, led by Justice Rehnquist, resolved this division and found that the speech restriction at issue in Gentile does not constitute a prior restraint on the press.(6) Because the restriction was not a prior restraint, the Court held that strict constitutional scrutiny, embodied in the clear and present danger test, was not the appropriate standard of review for these restrictions.(7)In characterizing the Gentile restriction, the Rehnquist majority distinguished between restrictions that limit attorneys' speech and restrictions that limit the media's dissemination of information.(8) The Court in Gentile acknowledged that any restriction of the press' First Amendment rights would constitute a prior restraint on the press and would therefore be subject to the strict scrutiny of the clear and present danger test.(9) However, the Court refused to protect attorney speech within the context of pending litigation to the same degree as the Court protected the media.(10) Instead, the Rehnquist majority concluded that attorney speech is subject to greater regulation because of both an attorney's relationship to the judicial process and the significant dangers that attorney speech poses to the trial process.(11) Accordingly, the Court in Gentile held that Rule 177's substantial likelihood of material prejudice standard strikes an acceptable balance between preserving both the attorney's First Amendment rights and the state's interest in fair trials.(12)While restrictions on an attorney's speech in pending litigation do not fall under the traditional model of a prior restraint, in many circumstances, such restrictions may achieve the same effect and entail the same dangers.(13) Prior restraints "freeze" speech and the dissemination of information by prohibiting the publication or broadcast of information by the media.(14) Similarly, restrictions on attorney speech freeze both the speech and the dissemination of information by prohibiting a potential source from contacting the press and supplying the public with valuable information.(15) Such a restriction invariably creates a categorical bar on the release of information about the judicial system to the press.(16)In theory, a Gentile rule(17) is a restriction aimed at irresponsible attorneys who exploit the press; in reality, a Gentile rule inhibits the ability of all attorneys to comment on judicial, political and executive abuses, speech that is undisputedly at the core of First Amendment protection.(18) Traditionally, the heavy presumption against the constitutional validity of prior restraints maintained a media free from government censorship for the purpose of checking political abuses, informing the public and ensuring the free exchange of ideas.(19) However, the Supreme Court's decision in Gentile thwarts this constitutional ideal. The Court's validation of the substantial likelihood standard makes prosecution of an attorney's speech increasingly probable; this, in turn, creates a substantial incentive for attorneys involved in pending litigation to refrain from discussing judicial proceedings with the media.In analyzing the effect of Gentile v. State Bar of Nevada on the First Amendment guarantee of a free press, this Note will explore the reasoning underlying the Court's decision in Gentile and will determine whether the outcome is consistent with traditional First Amendment jurisprudence. …