Commission for Lawyer Discipline v. Benton

FOR COMMISSION LAWYER

DISCIPLINE, Petitioner,

Barry BENTON, Respondent. Robert

No. 97-0228.

Supreme Court of Texas.

Argued Feb. 1998. July 14,

Decided

Rehearing Overruled Dee. Houston, Linda A. Hedges,

Daniel K. Acevedo, Austin, for Petitioner. Benton, allegedly, [sic] not Barry Cyganiewicz, R. K. could believe Edmund County, who Brownsville, good people Cameron Respondent. on the to return a verdict based swore Justice, PHILLIPS, Chief delivered evidence, were could find that Celestas III, IV, I, II, opinion of the Court as Parts damaged. evidence admitted not V-E, HECHT, V-A, V-B and which hurt. at trial was that Mr. Salas was ENOCH, OWEN, ABBOTT and Farm lawyer, paid Abete’s State Justices, HANKINSON, joined, and an Mr. Sa- Company, admitted that Insurance VI, V-C, V-D, opinion injured. as to Parts V-F and There no evidence las was HANKINSON, injured. which ABBOTT introduced that Mr. Salas was Justices, joined, judgment answers, and announced the by your you that Mr. Yet found of the Court. injured. Salas was not arising out of disciplinary

This is action why you I can see as to reason attorney’s attacking integrity an the letter af- ignored you the is that were evidence his against who rendered verdict campaign fected the “Lawsuit Abuse” Lawyer for Disci- clients. The Commission jury Why else Valley. in the would charged the pline of the Bar of Texas State its to render a true verdict breach oath 3.06(d) attorney violating of the with Rule say I on want to based the evidence? Disciplinary Texas Rules of Professional finding in you a trial which is when make a Conduct, regulates post-ver- lawyers’ which you pervert- evidence are not based the' jurors. with The trial dict communications hurting justice system ing our civil and attorney knows, court found that the had violated community. everyone in Who the probated suspen- imposed a Rule someday you will the aid of maybe need appeals sion. The court of reversed on con- justice system be as civil and it will our grounds and the action. stitutional dismissed you it for the corrupted you as made (Seerden, 941 S.W.2d you gov- The next time think Salases. C.J., rehearing). concurring on motion for crooked, your con- as remember ernment judgment court of' We reverse the of the corruption govern- good to the tribution the trial appeals and remand the cause to injured, You Mr. ment. knew Salas was punishment hearing. for a court new not. but swore that he was unfair does not Your cold and conduct I Judge Hester matter now. reviewed Respondent Barry represented Benton admitted at trial and decided evidence injury that was plaintiffs personal action unjust and your obviously verdict was jury jury to a in October 1991. tried The first granted the a new trial. Salases Ben- liable but awarded found defendant nothing more than a waste trial now was February damages. clients ton’s no money. county’s everyone’s time and the granted plain- the trial court had after myself very relieved The Salases trial, motion new Benton sent tiffs’ provide a justice system still that our jury, following of the letter to all members claim, your despite fair resolution to their copy to his clients: with verdict. Mary vs. Re: Florentino and Esther Salas in this you anything discuss If wish to Rene and Rosemarie Abete letter, please free to contact me. feel [juror] Dear of the facts came to the attention These you since It has been over four months Committee. Bar District Grievance State jury in the sat on the above-referenced hearing investigatory The committee held that Mr. and a verdict case returned Benton had violated and concluded that damages Salas suffered no Mrs. Florentino 3.06(d), provides: which involving a result of the bike accident dog. Abete’s Mr. Salas and the jury further discharge After I a matter with which your consideration of angry I verdict was so connected, lawyer shall I you the trial. could not talk with after rule is an holding to a concluded that questions of or comments ask make speech. 941 limitation on calculated unconstitutional that are member granted juror the Commission’s merely harass or 229. We embarrass S.W.2d application ser- for writ error. to influence his actions in future vice. II 3.06(d).1 Tex. R. Prof. Benton Disc. Cond. question of whether Because rejected grievance proposed committee’s constitutionally protected inhibits agreed judgment public reprimand analysis our of Benton’s speech will affect him against the complaint elected to have challenge, Village vagueness see of Hoffman through court heard district rather than Inc., Estates, Flipside, Estates Hoffman Tex.R. proceeding. an administrative 498, 102 n. Disc. P. 2.14. (1982), begin by consid- we will election, Pursuant the Com- Benton’s ering Benton’s claim that the free Lawyer a disci- Discipline mission for filed constitu- guarantees of the federal and state plinary petition in district court. See Tex.R. disciplin- prohibit the Commission from tions P. 3.01.' Benton and after answered Disc. sending Of all ing him for the letter. discovery summary judgment. moved for First involving issues “truly difficult Although violating he admitted Amendment!,][p]erhaps ... foremost 3.06(d) by attempting to influence the dis- us to our commit- cases that force reconcile service, jurors’ charged actions in future speech to free with our commitment ment argued that unconstitu- Benton the rule was rights gov- in constitutional embodied other answer, original tional. In his first amended Freeman, proceedings.” Burson v. ernment 3.06(d) argued that Rule he violated States and Texas United Constitutions J.) Blackmun, (opinion of right his speech, that it violated to free speech (discussing campaign restrictions on vague, equal and him overbroad and denied vicinity polling places). of This is such in the protection accept- the law. of The trial court case, requires a us to resolve a stipulation ed Benton’s he had violated expressive rights of at- conflict between rule, hearing evidentiary but held an impartial torneys public’s right and punishment. See P. 3.10. The Tex.R. Disc. right Dec- jury trials —a described Texas’s judgment suspending trial rendered court Independence palladium of as “that laration practice from law with Benton for six months liberty, guarantee and for of safe civil fully year suspension probated for one citizen,” life, liberty, property and of that, subject among to the other conditions constitu- prominently enshrined both per- things, apologize he to the Const, VI, VII; tions. See U.S. amends. community form service. Const, I, 15; V, §§ art. id. art. Tex. appealed on consti-

Benton the same four § determining speech is grounds tutional asserted in the trial whether Benton’s he constitutionally protected, must first de- appeals The court of reversed the we court. scrutiny apply to the judgment the case cide what standard trial court’s and dismissed rule. ground disciplinary is void Because the United States on the sole that Rule Supreme recently has addressed the vagueness. 933 784. On rehear- for S.W.2d law- justice concurring opinion application of the First Amendment to ing, one issued a appropriate disagreed majority’s vagueness yers’ speech, we will consider the with 3.5(d); 3.5(a)(5); Minn. R. substantive Mass. R. Prof. Cond. 1. Rule taken with no Responsi- change from Model Code 3.5(c); Resp. DR 7- of Professional Prof. Prof. Cond. Neb.Code 7-108(D). bility states have 77-B; DR Nineteen other 108(D); N.H.Super. Ct. N.Y.Code R. Prof. substantially R. Prof. identical rules. See Alaska 3.5(a)(5); 7-108(D); Resp. Cond. DR N.C. R. Prof. 3.10; 5-320(D); R. Prof. Cal. GaCode Cond. Cond. Resp. 7-108(D); DR Or.Code Ohio Code Prof. Prof. 7-108(D); Haw. R. Prof. Resp. Cond. DR Prof. Resp. 7-108(D); Tenn.Code Resp. DR 7- DR Prof. 3.5(e)(4)(i); 3.5(d); Code III. R. Prof. Cond. Iowa 7-108(D); Resp. 108(D); Va. DR Vt.Code Prof. 7-108(d); Resp. Lawyers Me.Code DR Prof. Resp. 7-107(C). DR Code Prof. Resp. 3.7(f)(2); R. Prof. Cond. R. Prof. Md. attorneys speech by pending involved first. standard under the federal constitution court, Operation Par As of the law- Rescue-Nat’l Planned case. See id. officers enthood, Sup. 41 Tex. yers voluntarily accept “fiduciary responsi- a (Tex.1998) (analyzing duty J. abortion bility” justice Ct. system and have “a to the protestors’ free claim federal before protect integrity.” Id. its C.J.). Texas constitutional claim because United (opinion Rehnquist, recently applied Court had States privilege a bur- “Membership in the bar is protest con First Amendment abortion Id. dened conditions.” text). C.J.) (quot- (opinion Rehnquist, S.Ct. 2720 Rouss, N.E. In re 221 N.Y. pro- most Supreme Court’s recent J.)). (1917) (Cardozo, degree Amendment nouncement on First stan- lawyers’ protection afforded to constitutional lawyers’ professional applicable dard Nevada, according varies to context: speech is Gentile State Bar of 1030, 111 S.Ct. 115 L.Ed.2d 888 course, lawyer person a and he too Of (1991). Gentile, attorney, a criminal defense freedom of utterance has a constitutional day press client held conference on his castigate exercise it to courts in which stated that was indicted he justice. law- administration of But a their prosecution’s framing his witnesses were yer actively participating in a trial cover-up police corrup- part client merely a merely person and not even given private reprimand tion. He was lawyer. violating “[a] a state bar rule extrajudicial shall not make statement expect person that a would to be reasonable intimate and trusted and essential He is an public means communica- disseminated part machinery justice, an “officer reasonably lawyer

tion if knows or should the compelling of court” the most sense. the know that it have a substantial likeli- will 1072, (opinion 111 of Rehn- Id. at S.Ct. 2720 adjudica- materially prejudicing an hood of C.J.) Sawyer, quist, (quoting In 360 U.S. re 1060, proceeding.” Id. 111 S.Ct. 2720 tive at 1376, 79 3 L.Ed.2d 1473 S.Ct. (em- J.) Kennedy, (Appendix opinion B to of J., (Frankfurter, dissenting)). Be- added) (quoting phasis R. PROF. Cond. Nev. litigation “are lawyers participating cause 1991)). 177(1) (amended Supreme Court justice system, key ... participants in the of held that rule’s likelihood the “substantial may ... some adherence the State demand sufficiently prejudice” material standard was regulating system of precepts to the lawyers’ speech rights to protective of free 1074, 111 2720 speech.” their* Id. S.Ct. id. at 1075- pass constitutional muster. See C.J.). Rehnquist, (opinion of Rehnquist, of (opinion S.Ct. C.J.).2 1034-37, 111 id. at S.Ct. 2720 But see fiduciary posi- As case most is the J.) application Kennedy, (urging (opinion of tions, attorneys hold privileged place the standard). danger” present of “clear and justice special ca- system gives the them lawyers system. When pacity to harm that acknowledged that when the Gentile pending make remarks connected to a case press, First speaker a member of the the is case, likely is far more public about that the pro- not allow the state to Amendment does than other regard them authoritative pending case speech criminal hibit about “ only Lawyers special speakers. not have danger’ present unless it a ‘clear and shows they by laypeople, expertise but not shared justice criminal a malfunction information have access to confidential Id. at system be caused.” will C.J.). discovery communications through client Rehnquist, (opinion of S.Ct. 2720 of (opinion id. only to them. See same known rejected the contention C.J.). Thus, have Rehnquist, such remarks applies high to restrictions standard opinion. Gen- majority sections a Although the Chief Justice's those some sections of 1081-82, (O'Con- tile, opinion of four mem- S.Ct. 2720 commanded votes Court, joined in the J., of Justice O'Connor nor, concurring). bers Amendment, concerning mak- sections First Cir.1988) (“[A]s (5th Texas, F.2d potential prejudice pool of enhanced court, cause can Moreover, jurors. fact an officer basic potential and be drop private affairs their persons system lawyers gives our the dominant The license in court.... called as witnesses gives presentation in the of trial role cases at requires members granted the court jurors influence over de- them immense how in a manner themselves the bar to conduct cide those cases. in the role of courts compatible with the attorneys’ responsibilities and light In re justice.”) (quoting administration court, held powers as officers of Gentile 644-45,105 S.Ct. Snyder, of material the “substantial likelihood (1985)). lawyer tries If the 86 L.Ed.2d prejudice” set out in the Nevada standard exerting his influence over continue disciplinary rule was consistent with completed their ser- after First Amendment. Id. at he is vice, plausibly claim that he cannot C.J.). (opinion Rehnquist, The Court ordinary doing as an citizen. Under so adopt defining the not that standard as did Gentile, likeli- the “substantial rationale speech, lawyers’ limit on outer restrictions is suffi- prejudice” of material standard hood “constitutionally merely held that it was attorneys’ speech in this protection cient Id.; 1082, 111 permissible.” also see id. at context. (“[T]he J., (O’Connor, concurring) has offered an addi The Commission prejudice’ ‘substantial likelihood material applying a less reason for standard tional passes standard in Rule con- articulated present danger” in this strict than “clear and muster.”). Thus, open stitutional Gentile left Benton’s it asserts that ease: possibility that the “substantial likelihood outside the core of political and therefore prejudice” give of material test in fact reject protection. We this First Amendment lawyers’ protection more than the af “[SJpeech concerning public contention. requires. First Amendment Because we self-government.” is the fairs essence possibility to act absence loathe on this in the Burson, 196, 112 pronouncement of a more definitive from the Louisiana, (quoting Garrison however, Court, assume we will (1964)). 74-75, 209, 13 L.Ed.2d 125 that the Gentile standard is a constitutional “[i]t brief states that The Commission’s minimum. categorize to the First Amendment” to insult Supreme The in Gentile Court’s discussion ju speech. But political letter as Benton’s lawyers’ public focused on comments about system self-govern of part of our ries are involved, pending in and eases which are ment, ju way in and criticism of the which high- expressly to a declined decide whether undeniably carry out duties is rors their lawyers applies to the of er standard public affairs. when speech concerning Even Al- strangers litigation. to the who insulting, speech is and as Benton’s this rude though the well re- First Amendment was, certainly political nature. it retains its more likelihood of quire than a substantial 25-26, 15, California, v. See Cohen U.S. speak- prejudice lawyer when the (1971). material 1780, L.Ed.2d 284 Nor S.Ct. citizen, a ing as an individual this is not such made the fact that the comments were does 3.06(d) regulates only ease. Rule communi- public than private letter rather to a a jurors a case with cation with who heard prevent being political audience them lawyer As Gen- which the was connected. speech. See Givhan v. Western Line Consol tile, “key 415-16, in the participant Dist., 410, ] the 439 U.S. idated Sch. (1979). system” respect 693, that case justice Except to 58 L.Ed.2d Gentile, jurors. at attorney those 501 U.S. an and his special and status as Benton’s C.J.). Rehnquist, relationship of (opinion of to the addressees professional 111 S.Ct. letter, apply rigorous influence the same lawyer gained access and we would ordinarily jurors capacity an officer used restrictions his as standard over Ohio, court; position speech. Brandenburg a mem- v. privileged political as his 23 L.Ed.2d 430 audi- 89 S.Ct. captive made them his ber of bar political applies But even to Bar Gentile at Howell State ence trial. Cf. jurors against variety constitution- speech. Four the law- Justices described case, civil yer’s challenges by comments in like Ben- that which al criminal defendants States, govern- allegations ton’s letter included In Tanner litigants. v. United corruption, political speech,” ment “classic 97 L.Ed.2d U.S. Gentile, (1987), rejected 111 S.Ct. 2720 a Sixth Court Kennedy, J.), (opinion of the rest of the challenge Rule of Amendment to Federal disagree. 606(b), ju- did not discharged Evidence which bars jury testifying forms of rors from about most standard, ap Under Gentile that the misconduct. Court concluded plication of Rule letter to Benton’s “full and government’s preserving interest in not violate the Amendment be does First room, jurors’ frank discussion letter likeli cause the created a substantial verdict, return willingness unpopular prejudice hood of material to the administra community’s system in a and the trust justice. post- tion Benton asserts laypeople,” id. at on the relies decisions communications, juror pre unlike the verdict 120-21, possi- outweighed Gentile, publicity trial not threaten the do infringement of defendants’ Sixth ble jurors right to a fair trial have Saenz, rights. Amendment See also Soliz already analysis rendered their verdict. This (Tex.App. Corpus 934-35 — of the interest is far too cribbed. stake denied) (holding that Texas writ Christi “[f]ew, any, if interests Gentile stated 606(b) deprive of Civil Evidence did not under the Constitution are more fundamental jury, litigants process of due trial civil right by ‘impartial’ to a trial than fair protected “purity efficiency” of extrajudi jurors, and an outcome affected Const, I, required by art. system as Tex. fundamen cial statements would violate that 15). § Gentile, right.” tal C.J.). (opinion Rehnquist, Be Protecting integrity jury system S.Ct. 2720 case, of the facts in that Gen cause involved permit led courts some restric- has even attorneys’ pre focused on the right tile effect press’s Amendment tions on First can on this interest. trial statements gather news. United States v. Cleve post- (5th But it is well established in the law land, Cir.1997), cert. de 128 F.3d — sufficiently can pose verdict also nied, -, 1518, 140 jury trials significant threat to the fairness of (1998), rejected the Fifth Circuit curtailing speakers’ justify the would-be challenge First newspaper’s Amendment constitutional interests. requiring all court persons an order to obtain interviewing the dis- permission before example, in Inter For Haeberle v. Texas charged high-profile government in a Airlines, (5th F.2d 1019 Cir. national corruption about case their deliberations 1984), rejected a Amendment the court First might “[flreedom Because of debate verdict. challenge prohibited law to local rule that thought independence stifled and be jurors discharged yers questioning their jurors were to feel that if made checked lawyers in Hae- their verdict. The about freely pub- arguments to be and ballots were berle, trial, having jury sought permis- lost world,” (quoting Clark to the id. at 270 lished jurors why interview the to learn sion to States, 1, 13, 53 S.Ct. v. United had not been presentation their the case (1933)), court concluded 77 L.Ed. 993 the upheld the See iá The court persuasive. the or permitted the First Amendment that rule, [judi- citing protect the “to local need narrowly protection against der as a tailored prejudicial inter- processes from outside cial] compromises danger “the that ferences,” Sheppard v. (quoting id. at 1022 secrecy jury presents [sic ] deliberations Maxwell, justice on system’s reliance to our criminal (1966)), jurors’ “the interest and jury determinations.” Id. public’s in well- privacy in and the interest justice,” id. administered principle the These cases establish parties and reasoning rights to constitutional that the have used the same Courts discharged to with question- the media communicate uphold post-verdict restrictions 226a, IV. Instruction Approved P. sometimes Crv. jurors purposes must various Tex.R. post-verdict are that But we aware interest yield competing to the constitutional as dangers as well communication carries jury system. damage to preventing in the benefits, Rule 3.06 as adopted we 3.06(d), Like Rule these and related cases questions and on those prohibition narrow recognize that interest specifically the state’s sys- injure jury the that tend to comments jury system pre- includes protecting in the tem. juror venting post-verdict harassment. See Tanner, S.Ct. 2739 insulting3 comments The abusive and McDonald, (quoting U.S. at damage in Benton’s letter threatened 783); Antar, v. 38 F.3d United States First, ways. jury system in at least two (3d Cir.1994); Kepreos, United States hearing testimony punishment at Benton’s (1st Cir.1985); F.2d United jury discouraged that letter established (5th Harrelson, F.2d States jurors Benton whom service. One Moten, Cir.1983); 582 F.2d States v. United although had he testified that sent the letter (2d Cir.1978). recognize They that juror in the as a felt it an honor to serve was endangered jury may impartial decisions case, he injury intended underlying personal jury taking place has by events after the express proceed in dire bias future voir verdict, as If rendered its well as before. jury ings being chosen for order to avoid

post-verdict permitted, interviews are this again. The sole reason for service reason, fact cases that will become common stated, change, that he did not want he was jurors, knowledge among anticipa- and like An another letter Benton’s. receive jurors’ will tion of such interviews affect be- juror’s testimony wide- other illustrated the Tanner, havior deliberations. See impact like ranging a communication indirect McDonald, 120-21, 2739; jury system by have on the Benton’s can 267-68, 35 S.Ct. 783. jurors poten affecting discharged tell what jurors their service. That tial future about governing post-verdict Texas’s rules con- very formerly juror that testified she jurors more permissive tact with are than the efforts, registration that in voter involved upheld court rules and federal orders activity receiving Ben stopped she after long cases above. We have concluded that if people asked her about ton’s letter because counsel, parties, communication between duty possibility being jury called for as discharged jurors experi- can be a valuable vote, registering a result of she would particular, ence for all concerned. law- negative experi have to them about her tell yer at trial such Benton who has lost ence Benton and she felt would cause jurors why respectfully to tell him ask register. them not to case, they persuaded by his were not him something help learn serve Second, receiving thus will post- abusive the fear Accordingly, clients in the future. his better verdict like Benton’s letter communications required civil judges jurors’ Texas trial cases are to affect service while threatens jurors progress. to instruct after the verdict once Like the trial still discour- service, discharged they jury problem free to they agement are are discuss this will anyone, including attorneys received the case with affect both individuals who Benton’s attorneys may letter called service parties, when again potential who hear their and other question about deliberations. See them such, protecting suggest discharged sensibilities as but with 3. We do mean insult, standing jurors' system likely in freedom from harm to interest from the that is result alone, grounds punishing be for Benton's attorney would inappropriate dis- communications with permit speech. does not It, The First Amendment charged jurors. Bar v. Florida Went Cf. speech government it is offensive to ban Inc., S.Ct. unwilling speech is to listeners unless the intoler- ("The Bar is concerned intrusive, ably example, the it invades home if abstract, with 'offense' in the citizens’ captive or is directed at a audience. See Erznoz with demonstrable detrimental effects Jacksonville, City v. nik profession regu- such lates.’’). has on the it 'offense' 3.06(d), Rule 45 L.Ed.2d however, jurors' protecting is concerned not with likely system ways juror jury harm the in the about Benton’s conduct. Because a to juror, personal influencing in the who has interest outcome of discussed above: letter, to be impartial, improper the trial cannot be is others hear about either who jurors subject in future lawyers for a intimidation to tell should to jury way facing attempt a certain in to service vote order avoid service or to avoid Thus, negative altogether. application por- community, reaction from the see of this State, accept- speech Hendrix v. n. 1 tion of 474 S.W.2d the rule Benton’s (Tex.Crim.App.1971), person in- or from able under Gentile. victim, in volved as a crime case such see his In addition to First Amendment (Tex. State, Carter 650 S.W.2d claim, application Benton asserts 1982), App. [14th Dist.] on —Houston aff'd right speech his to free violates (Tex.Crim. grounds, other 650 S.W.2d I, under Texas Con Article Section of the App.1983). Similarly, the threat of verbal stitution, provides part: pertinent which in by disappointed lawyers attacks creates “Every speak, person liberty be at shall atmosphere during of intimidation trial that subject, opinions any publish write or his on jurors’ impartiality. can affect An outcome being responsible privi for the of that abuse by extrajudicial affected statements violates lege; ever curtail passed and no law shall be litigants’ right to a trial. fundamental fair liberty press.” or of Gentile, 1075, 111 See recognized “in This Court has some C.J.); (opinion Rehnquist, see also Tex. provision aspects our free broader (“To R. PROF. cmt. Cond. 3.06 safe- Disc. Davenport than the First Amendment.” guard impartiality that is essential to the Garcia, (Tex.1992). 4, 8 Howev 834 S.W.2d jurors judicial process, should veniremen er, automatically to assume “that the state influences.”). protected against extraneous protec provision more constitutional must be if principle This true even holds the state- counterpart illegitimizes tive than its federal ments in occurred connection another state constitutional effort to determine proceeding and their effect on the outcome is Rescue, Operation standards.” 975 S.W.2d indirect. more at 559. If the Texas Constitution is 3.06(d)’s on prohibition comments speech, “it protective particular type of a discharged juror’s] calculated “to influence [a text, history, and must be because of the jury actions in future service” not vio- does purpose provision.” of the Id. are aware We applied First late the Amendment as to Ben- of no contextual to construe textual or reason ton for the reasons. The seeks same letter I, protective Article 8 as than Section more recipients’

to influence future ser- apply to First Amendment standard we solely attacking performance as vice their day the area of ethical restrictions jurors example, in Benton’s case. For Ben- speech. general attorneys’ professional See admitting that ton’s own affidavit he intended (Tex. ly parte Ex 859 S.W.2d 19-26 Tucci jurors specifically the letter influence the 1993) C.J., (discussing (Phillips, concurring) statement, say “I points to the want to clause). history expression free of Texas you finding in a trial when make a which you perverting are this has held the not based on evidence cases which justice hurting everyone higher Texas to create a stan- system our civil Constitution in- First community.” in the No matter how laudable dard than the Amendment court goal prior volved restraints the form of persuading Benton’s to behave cases, restricting speech. fairly may legiti- prohibiting in future the state orders 1; parte Davenport, mately prohibit couching mes- Ex him from this Tucci Davenport em juror’s opinion in a 834 sage in an assault on the service S.W.2d Our constitu influencing phasized than the literal text our state ease that he tried. Rather heightened guarantee applying recipient perform well in future tional service, substantially scrutiny prior restraints.4 Because such comments Tucci, reviewing injunctions Davenport for the Amendment standard After our in and 4. decisions against speech. Madsen Health Supreme First See v. Women’s States Court clarified the United

435 prior and oth provision’s restraints phrasing, Texas “it has and distinction between been generally speech. regulating See er laws preference remains of this court to sanc- the Stuart, 427 U.S. after, before, Press Ass’n v. Nebraska speaker a than the tion rather 2791, 49 539, 559, 9; at speech Davenport, occurs.” impos- laws (discussing between differences 19-22, 859 at 27-28 see also S.W.2d Tucci penalties on subsequent civil criminal C.J., Davenport (Phillips, concurring). As restraints). speech prior “Responsibility of explained, for abuse rejected that disci- implicitly the view emphasized by privilege fully [Arti- is as attorneys’ speech are limiting plinary rules I, privi- language 8’s] cle Section as that the it the federal con- when held prior restraints lege species itself be from all shall free for restraints on prior stitutional standard restraint.... Punishment for the abuse Press, inapplica- in speech, set out Nebraska exercise, right, prevention its is not Gentile, 501 at U.S. ble Gentile. See contemplates.” provision what the Daven- 1065-76, (opinion of Relin- 111 2720. S.Ct. port, (quoting parte 834 at S.W.2d 9 Ex C.J.). quish Tucker, 335, 75, (1920)). 110 Tex. 220 S.W. 76 3.06(d) impose prior Rule not does restraint Ill speech, applied on so strict standard we Rule argues also Benton Davenport inapposite. and Tucci is 3.06(d) An unconstitutionally overbroad. is although argues Justice Gonzalez scope its “sweeps within overbroad statute restraint,” quintessential prior “not protected non-pro range wide of both 3.06(d) prior same as a re- has the effect expressive activity.” v. Hobbs tected judged by straint and should be the same (5th Cir.1971). 456, Thompson, F.2d 460 448 standard. 980 at 450. But Rule S.W.2d prohibits speech expres statute When a comparable is not to the ordinance conduct, overbreadth doctrine allows sive prior struck as a de facto restraint down expression unprotect is person whose own Louisiana, 536, 557-58, v. 85 Cox 379 U.S. challenge ground the statute on ed to (1965), 453, L.Ed.2d S.Ct. 471 as Justice speech. protected See prohibits that it also suggests. at 451. See 980 S.W.2d Gonzalez Ferber, 747, 768-69, New York v. 458 U.S. prohibited ordinance Cox all obstruc- (1982). 3348, This 73 L.Ed.2d S.Ct. traffic, only against tions but was enforced exception general to the rule that is persons permis- not who did obtain advance may person to whom a statute constitutional city parades their sion officials for may challenge the ly applied not statute be Cox, 553, See at demonstrations. U.S. possibility it un could be based 555-56, practice 85 S.Ct. 453. This effective- applications. id. constitutional in other ly “require[d] all who wish[ed] disseminate 767-68,102 3348. chal at S.Ct. Overbreadth police them present ideas first to authori- First Amend lenges permitted approval.” ties their consideration liti not for ment context the benefit (quoting at v. Id. 85 S.Ct. 453 Schneider society, to gant, prevent but for benefit of Jersey, New S.Ct. constitutionally chilling the statute from (1939)). contrast, By 84 L.Ed. 155 parties not before protected speech other not, or in does either on its face Secretary Joseph the court. See State lawyers contemplate that should practice, Co., H. Munson permission from the seek advance bar before (1984). A statute that 81 L.Ed.2d jurors. communicating discharged be found to overbroad enforced be all, consti suggests against even that could that whenever Justice Gonzalez narrowly tutionally by a more perfect clarity prohibited what a law fails to define with Oklahoma, prior speech prohibits, it tantamount to a drawn statute. See Broadrick ap- 37 L.Ed.2d This restraint. See 980 S.W.2d (1973). effectively proach eliminates traditional Ctr., Inc., equivalent roughly to the we had tests articulated Rescue, protection Operation in those cases. See L.Ed.2d The level Madsen S.W.2d afforded standard However, only “questions statute or “comments a not be its of’ to” dis- will merely jurors; for overbreadth it charged prevent lawyers invalidated it does possible imagine to some unconstitutional jury’s speaking publicly about ver- applications. City 3.06(d). See Members Council R. dict. See Tex. Disc. PROF.Cond. Vincent, 789, 800, v. Taxpayers 466 U.S. Nor is the rule’s ban on comments calcu- 104 S.Ct. 80 L.Ed.2d 772 “Be jurors’ discharged lated to influence actions wide-reaching striking cause of the effects of substantially in future jury service over- request down a statute on its face at the today has broad. Our focused discussion may one conduct punished whose own jury primarily dangers system on the to the Amendment, despite the First we have rec speech, polite from rude abusive ognized that the overbreadth doctrine is comments to influence ac- calculated future ‘strong employed medicine’ and have it with ” may pose tions service substantial hesitation, ‘only as a and then last resort.’ justice in a threat to the administration Ferber, (quot at S.Ct. 3348 example, way. different For such comments Broadrick, 93 S.Ct. may damage impartiality pool 2908). Therefore, has attempt persuade when to developed requirement the over- firm, particular lawyer, favor a side of the breadth must be “substantial” before Although docket we do not future cases. held statute will be unconstitutional on its deny possibility pro- “influence” Vincent, Taxpayers face. See 466 U.S. at 3.6(d) may reach some vision Rule consti- words, 2118. In other S.Ct. “there tutionally speech, question protected we danger must be a realistic that the statute today, impermissible ap- need not its decide compromise itself significantly recog will plications judged are not “substantial protections nized par First Amendment plainly legitimate relation the [rulel’s ties Id. not before the Court.” Broadrick, sweep.” 93 S.Ct. Only S.Ct. if the 2118. statute “reaches a constitutionally pro amount of substantial may tected conduct” be struck down for 3.06(d) holding Our that Rule is not sub- Hill, City overbreadth. Houston v. stantially does not law- overbroad foreclose 2502, 96 U.S. L.Ed.2d 398 yers who rule violates believe the the First Estates, (quoting Village of Hoffman applied Amendment as to them from chal- 1186). 494, 102 lenging it. simply We conclude “what- 3.06(d)’s prohibition on comments ever exist should overbreadth be cured merely to harass or calculated embarrass through analysis case-by-case of the fact situ- juror substantially former is not overbroad. sanctions, [the rule’s] ations which assert- upheld The Fifth has restrictions on Circuit 615-16, edly, may Id. at applied.” not be post-verdict broadly communication more possi- than Rule based on the worded bility prohibited might lead IV Haeberle, F.2d at harassment. See argues applying Benton (blanket interviewing on 1021-22 ban dis- permissive more constitutional standard Harrelson, charged jurors); 713 F.2d at 1118 attorneys’ speech than restrictions on to re (ban interviews). requests” for “repeated on persons strictions of other communication, prohibiting Rather all than Equal violates the Protection Clause of the Haeberle, using a potentially as overin- to the United Fourteenth Amendment States proxy for harassment such as mere dusive Ordinarily, a law that treats Harrelson, Constitution. repetition, in as de- differently persons will different survive prohibited speech fines terms of the protection challenge long equal as the particular prevented: evil to be harassment rationally furthers a le jurors, distinction it makes discharged and embarrassment of Perry gitimate purpose. See Educ. state which have discussed are their as we Ass’n, Educators’ substantially likely Perry Ass’n Local damage our nature addition, justice 74 L.Ed.2d 794 system. prohib- the rule

437 vague (1988). A guarantee. See id. requires higher process The Constitution due ways. process in two scrutiny against only if the discriminates offends due law statute First, suspect impinges give a or on a fundamen- fair notice what class it fails to Doe, 202, right. Plyler forcing people to may punished, tal v. 457 See U.S. conduct 216-17, 2382, meaning, S.Ct. 72 786 v. 102 L.Ed.2d see Coates guess at statute’s (1982). lawyers 611, 614, by While not 402 91 City U.S. Cincinnati Real, class, suspect (1971), 1686, stretch see Giannini v. 214 threat- 29 L.Ed.2d S.Ct. (9th 354, Cir.1990), speech 911 F.2d 359 innocent, Grayned, 408 ening trap see certainly right, Plyler, a fundamental see 457 108, Second, it invites at 92 S.Ct. U.S. at n. Benton U.S. 217 & 102 S.Ct. 2382. arbitrary discriminatory enforcement however, expand rights, not his speech guidelines for those failing to establish simply reurging under them a different law, “allowing] enforcing charged with rejected provision. constitutional “We have juries pursue prosecutors, and policemen, [his] contention when cast as First Amend- predilections.” Smith v. Go personal their in argument, ment and it fares no better 566, 575, 1242, 39 guen, 415 94 S.Ct. U.S. Ass’n, equal protection garb.” Perry Educ. (1974). 948; 460 U.S. at also S.Ct. see vagueness Nowak, survive a chal To Rotunda & TREATISE on Constitu- 1992) (2d § lenge, spell per tional Law 20.11 at 48-49 ed. need out with statute not (“Whenever precision the Court finds that a classifica- it forbids. fect what conduct amendment, first inevitably germs tion violates the it alterna- of uncer contain “Words Broadrick, tively could rule the classification violat- tainty.” 93 S.Ct. U.S. equal If a ... protection.... ed statute prohibi if the process 2908. Due is satisfied prin- does not with ordinary conflict first amendment is “set tion out terms ciples, certainly almost will be held not person exercising ordinary common sense equal protection_”). violate sufficiently comply with.” can understand Serv. v. Nation United States Civil Comm’n Benton also that Rule vio- asserts Carriers, 548, 579, al Ass’n Letter protection guarantee equal lates (1973). Be 37 L.Ed.2d Const, I, Texas art. Constitution. See Tex. cause we are concerned with whether (“All men, § 3 free when form a social “fair gives enactment notice those man, compact, equal rights, have and no directed,” Grayned, 408 U.S. [it] whom men, separate set is entitled to exclusive (alteration original) emoluments, public privileges, in con- (citing v. American Communications Ass’n services.”). public sideration of Texas courts Douds, 382, 412, generally equal protec- followed federal (1950)), scrutinizing disciplin L.Ed. 925 jurisprudence interpreting tion our own solely lawyers ary rule we ask directed protection provision, equal see Lucas v. Unit- ordinary lawyer, with “the bene whether States, (Tex.1988) 687, 703-08 ed 757 S.W.2d law, guidance provided by case court fit of C.J., cases), (Phillips, dissenting) (collecting ” profession,’ rules and the ‘lore of the could argued not and Benton has we should comply it. understand and Howell Texas apply different standard under the Texas, (5th Bar F.2d State Constitution. Cir.1988) (holding rule disciplinary forbid ding prejudicial ad “conduct V justice” unconstitutionally ministration of not A vague). vagueness re Benton’s claim vagueness requires A doctrine mains statute which to be addressed. sufficiently clarity depending de different levels of prohibits conduct that is question. vagueness. Grayned v. of the law Courts de fined is See nature void impose City Rockford, precision 92 S.Ct. mand less statutes penalties than of criminal statutes vagueness civil 33 L.Ed.2d consequences are less component their severe. doctrine is a of the Constitution’s charged against a Estates, applied to the conduct Village of Hoffman defendant, permitted to raise disciplinary he is Attorney particular civil, applied to others- vagueness see State Bar proceedings in Texas are its (Tex.1989), Evans, justified since the oth- 657 n. 1 deemed This result is in satisfy the disciplinary rules need not of the statute so continued existence erwise required suppress crimi- higher degree specificity would tend to unnarrowed form Tinning, Gooding Bar 875 protected rights.” nal statutes. See State v. constitutionally 1103, 403, Wilson, 521, (Tex.App.—Corpus 518, 409 Christi 31 S.W.2d 92 S.Ct. v. 405 U.S. denied). However, 1994, when the stat- (1972); writ v. also Kolender see language capable reaching protect- 8, Lawson, 352, ute’s 358 & n. 103 S.Ct. 461 U.S. (1983); threatens to inhibit ed or otherwise 1855, Village 75 L.Ed.2d of Hoff- rights, 7, a stricter Estates, the exercise of constitutional n. 102 S.Ct. at 495 man applies 3.06(d) vagueness than when standard Rule 1186. have determined We regulates unprotected conduct. See statute in First Amendment violate the does not Estates, 497, at Village reach a substan- ease and does not Benton’s of Hoffman Button, 1186; v. 371 U.S. NAACP constitutionally protected tial amount of (1963) 328, 9 L.Ed.2d 405 83 S.Ct. Nevertheless, regulat- like all laws speech. (“Because need Amendment freedoms First chill potential some ing speech, it has survive, government may breathing space to if not define protected expression it does only speci- regulate in the area with narrow clarity. prohibited with sufficient what ficity.”). claim consider Benton’s Accordingly, we will its face. vagueness on the rule is void for vagueness considering Benton’s In 3.06(d), ap challenge the court of to Rule language of the rule on peals examined the B at 787-88. The face. its review of begin vagueness our We have argues that Benton should Commission 3.06(d) noting significance of Rule vague that the rule is required to show been par appeals the court of term that him, person whose applied to because as “calculated.” appear ties to have overlooked: clearly prohibited a statute conduct is of the chal modifies all three This word may be complain that the statute cannot “embarrass,” verbs, “harass,” and “in lenged Village applied to others. See

vague as established defi have found no fluence.” We 495, Estates, Hoffman One in Texas law. nition of “calculated” case, as-applied vague In an Benton’s concluded, ‘calculated’ “The word has court failure be doomed to argument would ness likely intended.” may ... mean either that his letter to stipulated Benton Godeau, 140 P. 167 Cal. Ponchan v. 3.06(d)’s “influence” Rule violated Burch, (1914). Compare Burch v. that the rule he cannot claim provision, so Cir.1952) (“ (3d as ‘[Calculated’ F.2d put him on notice unconstitutionally failed ‘likelyto’ rather in means used these statutes Whiting prohibited. that his conduct Cf. Soweco, to’-”), v. Inc. with than ‘intended (1st 18, 22 Westerly, F.2d v. Town of (5th Co., Cir. 617 F.2d Shell Oil Cir.1991) challenge to (rejecting vagueness 1980) (“The to deceive phrase ... ‘calculated by parties who public sleeping ban must some suggest that there be seems pre they engaged in trial that “testified intent....”). The official comment prohibited by the ordi cisely activity interpretation: supports the former nance”). “mak[e] com- lawyer must states that or embarrass that tend to harass recognize ments fails to The Commission Tex. Disc. R. PROF. Cond. influence.” vagueness or to against facial general rule that the added). It is consis- (emphasis assertedly emt. 3.06 when the challenges is relaxed protecting the purpose of the rule’s First tent with potential to affect has the vague statute prohib- it not as jury system to construe speech is freedoms. When Amendment intentionally causing for- iting lawyers from neither stake, “[a]lthough a statute harassment, also effects such as as bidden overbroad, invalid nor otherwise vague, (not (1995) vague), with 902 P.2d from communi- requiring them refrain as P.2d Bryan, 259 Kan. objectively have likely State cations that appeals court of (vague). The addition, 217-19 fact that three those effects. “an- equivalent to as disciplin- interpreted “harass” of the seventeen other states uncon- held noy,” as which ary rules modeled on the same source context a disor- stitutionally vague replaced have the word “calcu- City derly ordinance Coates supports “intended” the conclu- conduct lated” with Cincinnati, synonymous.5 sion that those terms are not at 787- interpret See 933 S.W.2d accordingly the word “calculat- L.Ed.2d 214 We usage meaning colloquial “harass” Although that a ed” this context meaning must not make a communication which same may sometimes “annoy,” are ordinary vagueness is we reasonable would foresee as hence same harass, embarrass, an constitutional likely to or influence it to avoid to construe bound Nootsie, ordinary “calcu- Ltd. v. juror. infirmity This construction of if possible. See Dist., lawyer’s speech and 925 County Appraisal lated” measures both the Williamson objective 659, (Tex.1996); juror’s reason- also Kramer reaction see S.W.2d 662 (5th 174, Price, & nn. 5-6 ableness standard. 712 F.2d 178 v. Cir.1983) limiting (discussing construc- use upon not indicate “d[o] While statutes vagueness). to statutes from tions save sensitivity depend[s]” whose violation “annoy” likely vagueness doc- like vagueness to run afoul of the of a word trine, Coates, 618, see 402 an- U.S. “[c]onduct comes from the fact that 1686, others,” only annoy banning “what men noys people restriction some does not 614, 1686, intelligence Coates, common would understand would so that 402 U.S. likely be words to is less ob- potential [harm]” cause do not know what defendants jectionable. id. n. 91 1686 breaking See at 613 S.Ct. the law and en- do to avoid must (quoting Chaplinsky Hampshire, personal 315 guided by v. New officials’ forcement is any 86 L.Ed. 1031 than consistent standard. views rather (1942)). Defining 3.06(d)’s prohibited speech con- provision “harass” can be Rule ordinary lawyer unpredictability terms effect an what this strued avoid expect assuages guid- would looked for We have standardlessness. statutes, vagueness particular doctrine’s concern with whether criminal stalk- ance must intelligence statutes, “men of common necessari- containing definitions ly guess meaning.” Id. at vagueness statute’s] at [the that have withstood word “harass” Similarly, consistently it in- challenges. reduces These definitions (1) arbitrary danger by guaran- following enforcement elements: course clude (2) teeing compliance conduct, person or specific that the line between directed at a (3) “depend upon simply causing tending not violation does cause sub- persons, id., (4) policeman annoyed,” distress, having no legitimate whether or not a is stantial State, case, juror particular is 677 A.2d or in this whether a v. purpose. See Snowden Thus, (Del.1996) harassed, embarrassed, (quoting or influenced. Del.Code State, by no although 1312A(b)(l)); § the word “calculated” 659 So.2d Bouters (Fla.1995) vagueness, its against (quoting bullet means silver Fla. Stat. State, 784.048(1)(a)); objective provides § standard 264 Ga. reasonableness Johnson process protection (quoting measure of due 449 S.E.2d Ga. Fonseca, 16-5-90); vagueness analysis. A.2d § relevant to our State v. Code (R.I.1996) 1237, 1238 (quoting R.I. Gen. Laws C State, 11-59-1(2)); Luplow v. § see also Wyo. (Wyo.1995)(quoting jurisdictions have disa- P.2d in other Courts Stat. 6-2-506(a)(ii)) legitimate pur- (lacking § “no standing greed on “harass” whether term element). held cases have enough vagueness pose” cited survive alone is dear Martel, defined, impermissi- thus “harass” is Mont. Compare State v. review. 3.5(d). 3.7(f)(2); 5-320(D); Me.Code Resp. R. Prof. Cond. R. 5. R. Prof. Cal. Cond. Prof. Mass statute, bly vague being even a criminal where so “standardless” that the Commission requires specificity the Constitution more “personal predilec- can look to its own regulation disciplin- than in a civil attorney’s such as a tions” to whether an determine Estates, ary Village Smith, rule.6 See embarrassing. of Hoffman S.Ct. 1186. order to 94 S.Ct. 1242. Because embarrassment 3.06(d)’s save Rule provision “harass” from greatly varies so between individuals and is any suggestion vagueness, we construe it foresee, uniquely so difficult to is not sus- incorporating as the above-stated definition. test; ceptible objective ordinary person to an 3.06(d)’s therefore, requirement of “cal- engage Because Benton did not in a course provision culated” conduct does not save this is, repeated of conduct—that communica- Kramer, vagueness. from 712 F.2d at individual, merely tions —directed at Cf (holding that even “an intent element single juror, sent a discharged letter to each [‘annoy’ vague- does not save ‘alarm’] provision he did not violate the “harass” ness because the conduct which must be interpreted as we have it. We intent, motivated as well as the standard provision need not decide whether this would assessed, by which that conduct is to be unconstitutionally vague applied vague”). remain limiting communications that fall our within construction but that occurred before we an-

nounced the construction. E phrase ju [the The “influence

D jury actions in future service” ror’s] consists Benton, agree however, We with that “em- ordinary person exercising of “terms that the “harass,” fatally barrass” is vague. Unlike ordinary sufficiently can un common sense and, “embarrass” is a term seldom used Broadrick, comply derstand with.” 413 knowledge, our statutory never defined in 608, U.S. at 93 S.Ct. 2908. Prohibitions on Although authority law. we have found no attempts to influence another’s conduct are discussing constitutionality of the word see, law, in e.g., common Tex. Pen.Code “embarrass,” comparable we believe it is 32.43; 36.04, § § id. other courts have “annoy.” Court held in Coates upheld against vagueness challenges. them “annoy” unconstitutionally that the word Pommerening, See United States v. 500 F.2d vague, requires “not in the sense that it (10th Torline, 92, Cir.1974); 97 215 State person impre- to conform his conduct to an 539, Kan. P.2d standard, comprehensible cise but normative statutes, widespread use of this term in other in but rather the sense that no standard of although certainly not conclusive on the specified conduct is at all.” 611 n. Id. at vagueness question, “is evidence that Similarly, problem 91 S.Ct. 1686. is generally accepted meaning, term[] ha[s] a not that one cannot understand what “embar- constitutionally suspect.” [is] not abstract, rass” means in the but that one Investigation, v. Federal Bureau CISPES accuracy cannot tell what with sort (5th Cir.1985). n. F.2d in trigger will embarrassment 3.06(d)’s 3.06(d)’s provision by its terms Thus, “influence” ‘average’ listener. “em- affect deals with calculated to provision barrass” runs afoul of the notice doctrine, in limited context of hearer’s actions aspect vagueness jury intelligence service. We are satisfied both “men of common must necessari- lawyers subject ly guess” speech might to the rule and Commis at what embarrass a juror. enforcing it can implicates charged It likewise sion officials with Id. doc- enforcement, arbitrary trine’s concern with understand what kinds of communications all, some, (describing stalking Luplow, In the case of but not of these stat- 897 P.2d at 468 utes, permissible in the standard of review is as content-neutral restriction this difference statute Smith, negated by regulates speech). generally the fact that the statute Snowden, Compare (stating capable speech. that statutes conduct rather than 94 S.Ct. 1242 (describing stalking reaching protected speech more 677 A.2d at 36 n. 1 statute as are reviewed statutes). affecting rights”), vagueness strictly "not First Amendment than other jury in future ser- juror’s] actions likely ordinary charged reasonably are influence an 3.06(d). of Rule juror’s meaning in future service. vice” within the actions attorney had violated if another Even dissenting Justice Baker contends his it within the punishment, rule without opinion vague that the “influence” clause its enforce- to save Commission’s discretion disagreement is room for because there that, like for those violations ment resources applies about whether it to certain communi- Benton’s, harmful likely to have the are most thank-you argu- cations such as notes. so II in Part such dis- we discussed effects ing, impossibly high he sets an standard of intimidating ju- couraging jury service which, precision generally if applied, would Finally, as- BakeR’s criticism rors. legislation vagueness. most render void for Justice words, if enforcement occurred to the we can sumes that selective “Condemned use case, reject, expect certainty it must have never mathematical this which we language.” Grayned, our But the 408 U.S. at a defect in the rule. been caused juries constantly S.Ct. 2294. Courts and question vagueness purposes correct facts of a called on determine whether the language is so unclear whether statute’s statute, given Kolender, case fall terms within the “encourages,” and often reasonable minds can differ about “an invita- or is obvious doubt, imagi- whether do. Without “the Coates, arbitrary enforcement. tion to” conjure hypothetical nation can cases in Any uncertainty U.S. at 91 S.Ct. 1686. meaning which the of these will be [a] terms juror’s] phrase actions [the “influence CISPES, question.” nice F.2d not rise to this future service” does (alteration original) (quoting American level. Douds, Communications Ass’n v. (1950)). L.Ed. F application But such uncertainties of are a law, part whereby natural of the rule of unconstitutionality part of a The one society generally applicable first formulates require to the statute does not us invalidate standards conduct and then decides unless unconstitutional entire statute the specific whether defendant’s acts violate provision separable is not from the remain- They those standards. a mark of not County der. See Harris Water Control & unconstitutionality. Albright, Improvement Dist. No. 39 (1954); Black v. Tex. S.W.2d addition, points the BakeR Justice Bd., County Bail Bond Dallas 3.06(d) failure to Commission’s enforce Rule writ). (Tex.App. no against opposing a letter written Benton’s —Dallas Disciplinary Con- Rules of Professional proof provision’s of the “influence” counsel stating severability duct contain a clause vagueness. pun- hearing At the on Benton’s any rules “shall part the invalidation of the ishment, Hollis, Clay attorney Thomas the provision not other ... of these affect represented who in the un- defendants given that can be effect without the suit, rules injury derlying personal that he testified provision.” Tex. Disc. R. invalid discharged in which Prof. wrote the letter Cond. 3.06(d)’s prohibitions on 9.01. Rule he thanked them for their service and can calculated “harass” or “influence” encourage future service.”7 “tr[ied] given regard effect to the “embar- agree without simply not that a letter encour- We do “presents] an provision; the rule inde- aging performance duty, of civic without rass” juror pendent, and with- regard complete in future workable whole how the will vote cases, “influence out” the unconstitutional term.8 Harris [a is calculated to dis- exception testimony appears appeals, Justices Gonzalez in a the court This bill testimony, court made Commission. trial sus- have all addressed Hollis’s we Baker objection tained Benton’s to Hollis as witness well. will-consider it as parties ground on the that the the court had Indeed, the American Law Institute’s forthcom- agreed underlying go into the facts form, barring ing just takes this Restatement personal injury did not suit. The Commission post-verdict testimony communications "that would harass challenge the exclusion of Hollis's briefs, Nevertheless, attempt parties’ juror or appeal. constitute an since influence Control, conflicting testimony County (detailing Water S.W.2d 947. 90 S.Ct. embarrass,” Except concluding for the words “or about defendants’ conduct and record, is constitutional and remains in effect. petitioners that “orathis find that we may guilty simply ... be- have been found VI unpopular ideas. Since cause advocated The final issue before us is how our nar- ground conviction on this would violate rowing Constitution, construction of “harass" and our hold- duty peti- to set aside it is-our ing convictions”) unconstitutionally added); that “embarrass” is (emphasis tioners’ vague judgment. affect the trial court’s Stromberg California, 283 U.S. successfully challenges When a defendant (noting 75 L.Ed. face, unconstitutionally vague law as on its “it prosecutor urged jury to convict based ..., applied not be to him until or solely provision on the uncon- was held satisfactory limiting unless construction reversing stitutional and conviction placed Gooding, on the statute.” upon “it cannot be determined this record Coates, (quoting 92 S.Ct. 1103 appellant that the not convicted under was (White, J., dissenting)). 91 S.Ct. 1686 clause”) (emphasis add- [the unconstitutional] We have limited Rule so as to render ed). by striking it constitutional the term “embar- impossi- “[i]t This is not a case in which narrowing rass” and the term “harass.” say constitutionally ble to valid [the Thus, Gooding may apply under we the cor- provision] was the basis for the verdict.” rected rule to Benton. must deter- We first Bachellar, 90 S.Ct. 1312. however, mine, application whether such an Despite specific findings absence of findings. is consistent with the trial court’s unambigu- judgment, the record shows disciplinary petition The Commission’s ously that the trial court found that Benton findings contained the trial court’s 3.06(d)’s At violated Rule “influence” clause. judgment state that Benton violated summary judgment hearing, the follow- 3.06(d), specifying without which of the place: discussion took provisions rule’s three Al- involved. my COMMISSION’S [I]t’s COUNSEL: though there is no evidence Benton’s understanding releasing that the Court is provision conduct violated the “harass” as we understanding that Mr. with the it, finding interpreted the trial court’s stipulates Benton did indeed violated he may long that he the violated rule stand as 3.06(d) and, therefore, there is [sic] finding sup- an alternative basis for that no fundamental issue that needs to be ported by the evidence. See v. Unit- Griffin jury. determined Is that correct? the States, 46, 56, ed THE COURT: Is that correct? However, a defen- when prohibiting dant is convicted under a law Yes, BENTON: correct. that’s in several acts the alternative and one of He has made BENTON’S COUNSEL: prohibitions those is held unconstitutional on summary that known in his affidavit and appeal, “may if it the conviction eannot stand judgment, prob- That’s no Your Honor. have rested on unconstitutional [the] lem. ground.” Maryland, Bachellar judicial THE COURT: I took it as a ad- 25 L.Ed.2d 570 pleadings on file. mission the that were (1970). Thus, reviewing court must exam- necessity no for a So there will be ine the record to determine whether there is determination. possibility that the factfinder based the only solely pleadings conviction the invalid rather than Benton’s admit that he violat- on provision.9 excerpt portion the valid of the law. See id. at ed the “influence” As the cases,” judgment juror’s juror summary actions as a in future 9. Benton's motion for states: making "Respondent that he violated Texas no reference to “embarrassment.” Re- has admitted Disciplinary Rules of Professional Conduct Lawyers Governing statement the Law (Tentative 8, 1997) 3.06(d) 175(3)(a) (empha- § with members Draft No. in that he communicated added). jury by the letter to their actions in sis influence punishment the shows, increased ac- the trial court hearing from the the trial court letter vio- that Benton’s jury, on the belief cepted and dismissed the based this admission 3.06(d) in- provisions of announcing all three expressly that no factual deter- lated one, Therefore, justice that we demands stead mination would be needed. parties give finding that remand this cause tidal court cannot have based its trial present argument to the opportunity on either the Benton violated Rule all, how, today holdings if at our provision, be- court on “harass” the “embarrass” punishment. previously imposed required resolution affect the cause would have record, disputed fact issue. On this reasons, foregoing we reverse the For the finding vio- trial court’s that Benton’s letter remand appeals and judgment of the court may upheld lated the rule be there is hearing to the trial court for new this cause possibility no that it on the uncon- was based punishment. stitutionally vague term “embarrass.” However, appears it from the record that ENOCH, Justice, concurring and filed a “ha- trial court have considered the and opinion, in which HECHT dissenting provisions rass” rule OWEN, and “embarrass” Justices, joined. punishment stage proceedings. at the GONZALEZ, Justice, dissenting filed hearing

The court held a to determine trial opinion. appropriate sanction Benton’s viola- tion. P. 3.10. record Tex.R. Disc. BAKER, Justice, dissenting filed a following contains the discussion of the evi- SPECTOR, joined, Justice opinion, in which presented hearing: dence to at that GONZALEZ, I II of which Parts and Judge, may, if BENTON’S COUNSEL: I Justice, joined. if violating Mr. Benton has admitted ENOCH, Justice, joined by HECHT and rule, jurors relevancy what would the OWEN, Justices, concurring part punishment, testimony? as to their part. dissenting in just I THE COURT: think show plurality’s I view that Rule share in fact there was embarrassment and not violate state or federal con- does I harassing. it considered would assume guarantees of free stitutional purpose that’s it. however, protection. equal disagree, I testimony elicited at the Commission Thus, vague any respect. I the Rule punishment hearing that some of the V(B) through I and Part join only in Parts felt “harassed” and “mortified” Benton’s V(E) opinion. plurality I would re- suggest letter. We do not trial appeals’ judgment court of verse the court should not have considered this testi- judgment originally it render as was ren- mony, imposed nor the sanction I by the trial court. concur dered contrary, jurors’ excessive. On the testi- it judgment to the extent that Court’s the mony highly was relevant to some of permits disciplined under Rule Benton to required court was factors the consid- 3.06(d). determining punishment for er in Benton’s clause, violating Correctly, plurality concludes that the the “influence” such all degree of “calculated” “modifies three “[t]he nature and the Professional word ‘embarrass,’ verbs, ‘harass,’ challenged of re- “[t]he Misconduct” and maintenance ” 1 correctly, plurality spect legal profession.” ‘influence.’ Also Tex.R. Disc. (I). 3.10(A), the term “calculated” as ereat- possible P. But is then defines since 3.06(d) added). Disciplinary (emphasis of the Texas Rules Benton’s service." future affidavit, sending an motion for by filed as attachment to the Professional Conduct summary judgment, my states that thrust "[t]he ... was ‘calculated letter which influence February was not to 'mere- letter (omission jury service.'" [their] actions in future ly jurors, indeed to them harass’ the influence added). original) (emphasis added). (emphasis His service." future summary judgment ‘‘[The brief states: Commis- at 438. 1. S.W.2d correctly [Benton] violated sion] claimed “objective an jurisdictions, especially reasonableness standard.”2 from other when vagueness analysis A questions entirely whether the those statutes address an different regulation Furthermore, is “set out in subject terms that the ordi- matter.9 as for the nary person exercising “embarrass,” ordinary plurality common word misses the sufficiently sense can comply point problem understand and when it states that “the is not State, Long with.” Unlike the statute that one what ‘embarrass’ cannot understand by abstract, and unlike the other cases cited means in the but that one cannot Justice Disciplinary Texas accuracy speech BakeR, Rule of Conduct tell with sort of what 3.06(d) incorporates objective trigger ‘average’ an reasonable- will embarrassment in the ness for determining standard whether the listener.”10 “ordinary attorney” would believe that his The issue in case whether this “objectively harass, conduct likely to” speaker’s “objectively likely actions were to” embarrass, jurors.4 or influence harass or embarrass the listener.11 Whether be, was,

The inclusion of the might actually “calculated to” lan- a listener or ha- guage in Rule prohibit- only indirectly “defin[es] the rassed or embarrassed is rel- speech If, ed ordinary objective terms of what effect an evant. under the reasonable- lawyer expect would plurality have” and ness standard articulated “assuages vagueness today, merely doctrine’s concern was “calculated embarrass,” with whether ‘men intelligence of common harass then the rule is violat- necessarily guess must question objectively [the ed. The statute’s] is whether an ”5 Therefore, meaning.’ sur- reasonable would think his or her vagueness challenge.6 vives Benton’s “likely conduct was to” cause harassment purpose embarrassment and whether the plurality, But the recognizing while this “merely” that communication was to enhance objective standard, reasonableness unneces- the likelihood that such harassment or em- sarily proceeds to define “harass.”7 It then barrassment would occur.12 compounds by concluding its error that the word unconstitutionally Finally, “embarrass” this Court’s rules should be treat- vague.8 plurality rejected governed by should have ed like statutes and should be vagueness challenge outright. Benton’s facial interpretation the same rules of and con- “harass,” Regarding plurality the word every struction.13 We are to make effort to foray should have avoided its into statutes save a statute or rule from constitutional ("While 2. Id. at 439. 6. See 980 S.W.2d at 439 statutes that upon sensitivity not indicate ‘[d]o whose viola- 3. United States Civil Serv. Comm'n v. National likely depend[s]' tion to run afoul of the Carriers, Ass’n Letter doctrine, vagueness banning only a restriction (1973); 37 L.Ed.2d 796 see also How- intelligence 'what men of common under- would Bar, (5th Cir.1988) ell v. State 843 F.2d likely stand would be words to cause [harm]’ (noting vagueness challenge that a is informed Coates, objectionable.”) (quoting less reviewing attorney context and that disci- 1686) (citations omitted). 613 and n. rule, plinary spe- one take into account knowledge lawyers experience pos- cial 7. 980 S.W.2d at 439. sess). 8. Id. at 440. Compare 4. See 980 S.W.2d at 439. Tex Disc. R. State, Cond. 3.06(d), Long Prof. (consider- (Tex.Crim.App.1996) S.W.2d Id. stalking noting Texas statute and that it standard), objective Bryan, lacked an and State v. 10. Id. at 440. 212, 143, (1996) (consid- 259 Kan. 910 P.2d 218 ering stalking noting Kansas statute and that it 11. Id. standard). objective lacked an 12. Tex Disc. R. Prof. Cond. 3.06(d). (quoting City

5. 980 S.W.2d at 437 Coates v. of Cincinnati, 611, 614, 1686, 402 U.S. 91 S.Ct. 29 See, F.D.I.C., (1971) (quoting Connally e.g., Hidalgo, 214 & Co. v. L.Ed.2d v. General Chambers (Tex.App. Co., 385, 391, 126, 700, 1990, Constr. 269 U.S. 46 S.Ct. 70 790 S.W.2d denied). 702 writ —Waco (1926))). L.Ed. 322 3.06(d). DisciplinaRy R. PROF. Conduct plurality ob- Tex. infirmity.14 The articulates an character not protected Speech retains its jective girds reasonableness standard that it embarrassing, also when just it is against vagueness chal- when Rule Benton’s obnoxious, insulting. confrontational, the is lenge. Proceeding further to define 921, Hardware, 458 U.S. Claiborne and declare the word “embar- See word “harass” (“To the extent that the unconstitutionally vague jurispruden- rass” ground that the judgment rests on court’s unsound. tially unwarranted and ‘threats’ ‘intimidated’ ... were citizens correctly court enforced The trial traduction,’ vilification, ostracism, ‘social 3.06(d), appeals the court of erred First Amend- flatly with the it is inconsistent reversing judgment. agree I therefore ment.”). other- Court concludes Because the plurality appeals’ the court wise, I dissent. reversed, I judgment and concur should only per- judgment it the Court’s insofar as I discipline Benton.

mits the trial court to personal, political letter was Benton’s GONZALEZ, Justice, dissenting. in the context commentary on a verdict Today that the free the Court announces lawsuit charged debate over highly aof Tex- speech clauses the United States jurors confronted the abuse. Benton’s letter permit lawyer to do not as Constitutions it, for, ignoring the facts and perceived as he jurors privately confront and criticize of the Cam- succumbing to the influences rendering In a re- an unfavorable verdict. entering Against Lawsuit Abuse paign acknowledged opinion this cent take-nothing Like other members verdict. “[cjommunication requires con- sometimes bar, campaign’s Benton believed Operation v. frontation.” Rescue Planned litigation influ- excessive disparagement of (Tex.1998). Parenthood, against plain- predisposed to be enced the courts and the I would hold while of their case. regardless of merits tiffs discourage should crassness exhibit- bar “at concerning public affairs is Speech case, lawyer disciplinary this ed Amendment,” Butterworth of the First core 3.06(d) infringes con- of Rule on enforcement 624, 632, Smith, 110 S.Ct. 494 U.S. v. speech. stitutionally protected (1990), it 108 L.Ed.2d because majority of that Rule A the Court realizes self-government.” Garrison “essence 3.06(d)’s to mem- prohibition on “comments Louisiana, 64, 75, 85 S.Ct. discharged] jury are calculated [aof ber (1964). protections strong L.Ed.2d merely to ... embarrass” unconstitutional. political activities are provided for Prop. R. See Tex. Conduct DISCIPLINARY regulation robust the context even 3.06(d). provision is not The “embarrass” Went-For-It, lawyers. Bar v. See Florida vague, impermissible restric- but also an Inc., 115 S.Ct. 515 U.S. protected speech. constitutionally tion (1995) (“There are circum- protected “Speech not lose its character does speech by in which we will accord stances simply embarrass others public and matters attorneys in issues action.” NAACP coerce them into strongest protection legal representation Co., Hardware Claiborne offer.”); In re has to Pri our Constitution 3409, 73 L.Ed.2d mus, punishing (holding that reasons, counterin- L.Ed.2d For similar Court’s 3.06(d)’s expression with political “must prohibi- construction of tuitive applicable to lim ‘exacting scrutiny merely ... stand ... calculated tion on “comments ”) rights’ core First Amendment juror’s] in itations on discharged actions [a to influence omitted). (citation is unconstitutional. future service” Dist., Underground Conservation (citing Water for the at 439 cases 14. See 980 S.W.2d (Tex.1996); Bd. Texas State [a S.W.2d to construe proposition that "we are bound Inc., College, Barber infirmity possi- Beaumont Barber Exam’rs v. if to avoid constitutional word] 729, (Tex.1970). also, ble"); County e.g., Barshop 732 Medina v. see argues The Commission that assuming because Ben- Even Benton’s letter does speech qualify ton private political public speech, delivered his in a as classic or letter to jurors qualifies audience, rather as moral suasion. Benton’s letter to public than to a jurors, caustic, discharged albeit chal- speech his political. was not It characterizes jurors lenged change personal their Benton’s letter as not a “free discussion of justice. attitudes about civil Benton testified governmental affairs,” but instead a “dia- although that “way aggres- his letter was too tribe,” personal “a attack integrity on the sive,” it was not his intention to harass or nothing more.” The Commis- jurors. embarrass the He wished to con- sion would reserve the First Amendment’s front the he for what believed was “its public speech, immunities to deny those “unjust disregard blatant of the facts” and private, immunities to speech. confrontational wrongful decision.” He was incensed The Commission’s theory minimalist “despite undisputed evidence of speech free Supreme flawed. The Court’s wages medical bills and lost First analysis Amendment generally has spaces provided.” wrote zeroes in all the presumption started with a speech that all If proportion is to be valued in protected. expression It has found falling the extent people which it affects how within very categories a few narrow function, interact, govern themselves significant to lack First Amendment culturally politically, as well as then moral See, protection. e.g., Chaplinsky v. New very suasion must be near if not at the im- Hampshire, 568, 573, 766, 315 U.S. 62 S.Ct. pro- mediate core of the First Amendment’s (1942) words); 86 L.Ed. (fighting frequently stings, tection. Moral suasion States, 47, 52, Schenck v. United 249 U.S. necessarily Speech is not bad. (1919) 247, (falsely S.Ct. 63 L.Ed. 470 shout- induces per- individuals to re-evaluate and theater); “fire” in a crowded New York v. haps modify their convictions serves as a Ferber, 747, 764, 3348, 458 U.S. 102 S.Ct. against cathartic the vices of individualism. (1982) (child L.Ed.2d pornography); early In his definitive treatise on American 15, California, 20, Miller v. democracy, Tocqueville recognized 93 S.Ct. Alexis de 2607, (1973) (obscenity); 37 L.Ed.2d 419 the value of moral suasion to the American Illinois, way 250, 266, Beauharnais v. life: 343 U.S. (1952) 725, (defamation).

S.Ct. 96 L.Ed. 919 Nothing, my opinion, deserving is more generally proseribable categories Even these of our attention than the intellectual and See, strictly e.g., City been delimited. moral politi- associations of America. The Hill, 451, 461, Houston v. cal and 482 U.S. industrial associations of that coun- (1987); try forcibly; S.Ct. strike us but the L.Ed.2d 398 others elude Lewis observation, or, Orleans, them, our if we City New discover 415 U.S. imperfectly, we understand them (1974); S.Ct. 39 L.Ed.2d 214 Cohen v. hardly anything we have ever seen California, 15, 20, 403 U.S. must, however, kind. It (all acknowledged, (1971) narrowly construing L.Ed.2d 284 necessary are as to the American “fighting exception); words” New York former, people perhaps as the more so. Sullivan, 254, 279-80, Times Co. v. 376 U.S. DemocRacy (1964); Tocqueville, L.Ed.2d 686 Gertz v. Alexis de in Amer- (Richard Welch, Inc., ed., Robert 94 ica 201-02 D. Heffner New 1956) (1840). Library American (qualifying Grass-roots activism, defamation). proselytizing, door-to-door proscribability and one- While the appeals on-one preced- to moral values have repeatedly emphasized Court has nearly every major ed and nurtured social public political speech very is at the change in history. American see, core of protection, e.g., First Amendment Grant, Meyer Regrettably, society now exalts moral in- (1988), 100 L.Ed.2d 425 this does not public increasingly difference as a virtue and expres- undercut the value of other forms of agents pop- resists its of moral suasion. sion. every ular sentiment that individual is free to

447 1575, 415, 416-20, 29 Keefe, 91 S.Ct. 402 philosophy own and values U.S. choose his or her (1971) right the of (upholding L.Ed.2d has evolved into a cultural resentment organize communi- neighborhood to personal activists against proselytizing and moral con- agent estate who ty pressure against real of Tocqueville warned that one frontation. gain); private flight for democracy promoted greatest the white threats within Hardware, 458 U.S. sepa- tendency its to foster and NAACP v. Claiborne indifference 3409, 886, 921, individuals, L.Ed.2d among praised 102 S.Ct. ration but he (1982) unpleasant forms of (holding that even combating tendencies with America for these “ including ‘threats’ of ‘social supra, at its free institutions. moral suasion — Tocqueville, vilification, However, ostracism, ”—are against society’s and traduction’ the battle Amendment); insularity the First increasing protected if the courts will lost Network, 519 U.S. protect fail v. Pro-Choice the Constitution’s most sacred Schenck (1997) 357, 870, 855, institutions, 137 L.Ed.2d namely, religion, 117 S.Ct. the freedoms of right to (rejecting any “generalized [privacy] speech, press, and association. alone”). recently own Even our be left argues let- The Commission that Benton’s some- acknowledged that “[e]ommunication immu- ter was not entitled to the traditional Operation requires times confrontation.” speech per- of it was political nities Parenthood, 975 S.W.2d Rescue v. Planned public, thereby invading rather than sonal at 555. However, privacy. personal, then one-on- verbally morality right the segre- one moral confrontation should not be confront gated not protections recognize from the we of attitudes or conduct is limited one’s public speech. commentary. right “In “The free [of classic a face-to-face en- tactful greater speech] aggressive dispu- opportunity counter there for the extends to acquies- exchange propagation of ideas and the of tatious as well as to the meek and views_” Struthers, Legal City v. NAACP De- cent.” Martin v. 319 U.S. Cornelius Fund, Inc., 788, J., 149, concurring). (Murphy, and Educ. 473 U.S. S.Ct. 862 fense (1985). 3439, 798, protected “Speech not lose its character S.Ct. 87 L.Ed.2d 567 does recruited, “Feelings opinions simply because it embarrass oth- ers_” Hardware, enlarged, heart human mind Claiborne only speech developed, reciprocal Freedom of influence S.Ct. 3409. upon supra, depend not court or the bar’s Tocqueville, men each other.” should wisdom, effective, fundamental, judgment polity, prudence at 200. most “[T]he perhaps political given “Strong and ef- economical avenue of communication. extemporaneous discourse direct rhetoric cannot be [is] one-on-one communica- fective Grant, purely Meyer nicely phrases.” v. channeled in dulcet tion.” U.S. at Id. 3409. “One S.Ct. 1886. prerogatives citizenship is the American spanning major opinions In several right public men and to criticize measures— political century, movements of twentieth informed and re- and that means right Court has vindicated speak sponsible criticism but the freedom to pursue through fo- activists converts foolishly and without moderation.” Baum See, cused confrontation and moral suasion. States, gartner v. United 673- Tri-City e.g., American Foundries v. Steel 88 L.Ed. 1525 206-07, Council, Cent. Trades U.S. (1921) regulated (recognizing cannot be 66 L.Ed. 189 The content targeted protect feelings of indi- right to act as representatives of labor “missionaries,” public. “As accosting as or the sensibilities of the strike-breakers vidual matter, attempted plant); general we have indicated that to enter or exit the Struthers, City public debate our own citizens must tolerate Martin 145-49, insulting, outrageous, in or- and even 87 L.Ed. 1313 “breathing prohibiting provide ‘adequate space” to (striking door-to- der to down ordinance protected by applied religious the freedoms the First Amend- door solicitation Barry, speech); Organization a Better Austin v. ment.’” Boos 448 1157, (1988) (cita- Nevertheless, apply 108 99 L.Ed.2d 333 this Court chooses to S.Ct. omitted). Jurors, standard, partici- scrutiny

tion citizens and intermediate Gentile’s pants justice, in the administration of approved by sharply which was a divided exemption to no entitled these burdens Court, Supreme lawyer for restrictions on of First the Amendment. speech affecting pending a ease. See Gentile Nevada, 1030, Bar 501 111 v. State footnote, In exculpates a the Court its of 2720, 115 (1991). Benton’s S.Ct. of prohibit per- construction to however, letter, any pend impact had no sonally speech offensive on the basis that the jurors’ does not rule concerned case.1 The Gentile decision protecting “is not with such, protecting sensibilities as with support proposition the the that restrictions on a likely system from the harm that to lawyer’s communications with the members inappropriate attorney result from communi- discharged jury of a are entitled to jurors.” discharged cations with S.W.2d 980 scrutiny. intermediate 3. Supreme rejected at 433 n. Court a Gentile, Supreme the Court held that argument Barry similar in Boos v. it when extrajudicial lawyers’ the could restrict bar provision statutory prohibiting struck down a posing “substantial of statements likelihood any display sign the of within 500 of a feet materially adjudicative] pro- prejudicing [an foreign embassy tending bring to that for- 1076, ceeding.” 2720 See id. at S.Ct. eign government public disre- into odium or C.J.). (opinion Rehnquist, were two There 315, pute. 1157. See U.S. at Supreme ap- principle reasons the Court acknowledged Although display it the proved lawyer’s pro- purpose lower standard for prevent clause’s harm to inter- —to by protecting pending in a dignity national relations fessional communications case foreign diplomats present danger” “[l]is- Court held that test— than the “clear and —the speech type teners’ reactions to are not the identity timing speaker ‘secondary justify restric- effects’” Standing speech. Committee on 321, 1157; speech. tions on Id. at 1430, Discipline Yagman, 55 F.3d Paul, see v. City also R.A.V. St. (9th Cir.1995). First, is an “officer 377, & n. S.Ct. 120 L.Ed.2d privileged court” to infor- access (1992) (striking down hate-crimes ordi- “extrajudicial mation and whose statements though prevent- nance it was aimed at even pose pending a threat to the fairness of a victimization); ing race-related violence and Gentile, 1074, 111 proceeding.” Johnson, Texas v. Second, extrajudicial comments S.Ct. (1989) (protect- S.Ct. 105 L.Ed.2d pending “likely in a influence ease to ing right despite argument to flag burn “prejudice outcome of the trial” or actual security by demoralizing national affected venire, panel if even an untainted troops). American ultimately can be found.” Id. at Underscoring the fact that the II applies only pending Gentile standard to wrote Benton his letter after cases, regu- emphasized that “[t]he Therefore, discharged. been it is had merely attorneys’ post- speech lation improbable that his letter would have pones attorneys’ after the comments until impact pending in the retrial of his case. Id. trial.” 111 S.Ct. 2720. subject I Accordingly, would prompted interests exacting traditionally scrutiny applied See, legitimize the “substantial likeli- against political speech. e.g., Court sanctions extrajudicial Ohio, lawyer’s Brandenburg hood” standard for a pending present are not (per cu cases L.Ed.2d riam). special “The identi- this case. considerations underlying ceedings poisoned the case below that Benton's letter 1. The fact that the Salas v. Abete pending jury, retrial when Benton wrote his letter from which the second Salas v. Abete venire reasoning my cri is irrelevant to the Court’s any, if would be selected. tique suggestion pro it. There in the is no professional bodies will defer when that we fied are of limited concern Gentile impinge on First restrictions When when those pending no before court. case freedoms.”). ex- This Court’s lawyers speak to Amendment out on matters unconnected standard case, the Gentile imme- tension of pending there is no direct and other in tension with liti- trial is also impact rights on fair trial after the diate Amend- recognizing that the First in gants.” Yagman, 55 F.3d at 1443. Even cases af- strongest protections are restored lawyer’s intemperate a re- ment’s the event that See, e.g., an to end. discharged jurors gain ter the trial comes wide- marks toward Colorado, v. notoriety, Patterson spread I believe that remarks J.) (1907) (Holmes, 556, 51 L.Ed. 879 unlikely juries for or S.Ct. predispose to future are (“When finished, subject courts are Finally, case is against particular party. a unlike a Gentile, people.”); as other to criticism upheld in does the same the rule Semaan, 432-33 S.W.2d merely speech, Bar v. postpone not certain but alto- State refd (Tex.Civ.App. Antonio writ gether prohibits it. —San n.r.e.) (recognizing Amendment’s the First factually Gentile similar in one re- derogatory attorney’s state- protection of an I spect: attorney’s speech is do an at issue. judge a made outside against ments respects, attorneys dispute many in not judicial proceedings). course of higher must be held a standard than the special of their public. rest of Because rely than choosing on federal rather discovery client access to information and ignores Daven- precedent, state this Court confidences, they (Tex.1992), are limited in what Garcia, in port v. 834 S.W.2d court, they As disclose. officers gag held that a trial court’s order which we dignity must with behave decorum a lawyers speaking from about prevent lawyer’s disagree courtroom. But I speech guar- pending violated the free case justifies status as an officer of the court some- of the Texas Constitution. We anties comprehensive his restrictions on or her analysis speech with the times our free start speech. Supreme The United States Court federal standard First Amendment when the expressed has similar doubts: protective speech than is more refined and standard, con- [Although or where the federal undoubtedly has a the state State more ensuring has been decided substantial interest its stitutional standard See, e.g., recently attorneys than the state standard. dignity behave with and decorum Rescue, courtroom, at 556. But Operation in the we are unsure that the case, only more Davenport is not attorneys maintain their the instant State’s desire that Gentile, but also protective speech than dignity in their communications with recently than enough decided Gentile. public is an interest to more substantial justify abridgment of their First distinguishable in re- Although it some rights. Amendment case, in- Davenport, like the instant spects, Counsel, Disciplinary Zauderer interest Office of a conflict between court’s volved 626, 647-48, justice safeguarding the administration L.Ed.2d speech. See 834 lawyer’s freedom (“Counsel in ... are this ease stan- Court’s extension of the Gentile S.W.2d

This from dis- to refrain any pend- expressly ORDERED that does not affect dard any of this cussing publishing matters with contrasts with the reluctance case persons than their other ap- Court case with States which United clients, Seeking employees-”). agents, or af- proved the Gentile standard and misunder- justices prevent misstatements pending fecting a case. Four of all, proposed set- standings that could threaten objected lowering even standard jeopardize the best interests 111 tlement and pending cases. See 501 J., (Hecht, J.) (“We plaintiffs, see id. at Kennedy, the minor (opinion judgment), trial court concurring in the years accepted col- in recent our clients, attorneys, wit- enjoined the their leagues’ theory practice of apparent that the nesses, pub- restrictions, representatives agents and brings comprehensive it law with licly deliberations); commenting on a toxic tort outside affect case could its United States Antar, (3d Cir.1994) of the courtroom. See id. at 6. This F.3d injunction violating (upholding prior juror struck down the arti- restraint on inter- views); I, Moten, cle section 8 of the Texas United States v. 582 F.2d Constitution: (2d Cir.1978) (modifying the district gag judicial proceedings [A] order civil interviews). prior juror court’s restraint scrutiny only will withstand constitutional specific there findings supported where quintessential is not a While (1) by evidence that and ir- imminent restraint, very prior possesses the charac- reparable judicial process harm to the will troubling found teristics courts have so deprive litigants just of a resolution special prior prior restraints. “The of a vice dispute, judicial their action sup- is that restraint communication will represents the least restrictive means to pressed, directly by inducing either or exces- prevent that harm. speaker, in an sive caution before ade- added). (emphasis quate unprotected by Id. that it at 10 determination Pittsburgh the First Amendment.” Press Gentile, In Davenport both and Court our Pittsburgh Co. v. Comm’n on Human Rela- Court, Supreme and the United States re- tions, 376, 390, 413 U.S. spectively, decided the extent to which law, L.Ed.2d 669 Unlike libel under present danger” federal “clear and standard penalty imposed which no can be unless the in enunciated Nebraska Press Ass’n v. false, objectively statement the line be- Stuart, 427 U.S. 96 S.Ct. acceptable unacceptable tween and communi- (1976), lawyer’s applied to a poorly both cative influences is defined in extrajudicial affecting pending statements a interpretation text and the of Rule Court’s Davenport, “[t]he ease. In we held that 3.06(d). standard enunciated in Nebraska Press ... sufficiently protect does not of rights part of the Rule which the finds Court expression free that we believe that the fun- by prohibits was violated Benton’s letter a requires.” damental law of our state “ask[ing] questions from of or Gentile, contrast, by at 10. In S.W.2d the makfing] jury comments to a member of Supreme explicitly United Court States re- merely ... that are calculated to influence jected top demanding Nebraska Press as a his in actions future service.” Tex.R. 3.06(d). for regulating speech standard law- DISCIPLINARY P. Black’s Dictio Law yers. S.Ct. 2720. The nary defines the word “calculated” as Court, however, “[t]hought-out, believes the tension be- premeditated,” and the word very disparate fully affect, tween these standards is modify upon “influence” as act “[t]o or by Davenport resolved the fact that involved by especial physical, power, mental moral restraint, 3.06(d) prior a subtle, Rule does ly whereas gentle, gradual way.” in some (6th ed.1990). Dictionary not. 980 S.W.2d at 435. Law Black’s avoiding gives In Davenport, point suggests the Court At the Rule one the Court significance applies speech “attempting] talismanic be- persuade distinction to to 3.06(d) firm, prior jurors lawyer, tween Rule a re- to favor particular classic a opinion, But straint. elsewhere its side in future service.” docket added). significance loses (emphasis distinction its S.W.2d at Court’s So construed, approval jurisdic- attorney prohibit several cases from other the Rule would uphold prior specifically to in- tions that restraints —cases communications intended gratiate jurors gain same which the outcome would be doubtful oneself with an advan- firm, See, oneself, Davenport e.g., tage under the standard. one’s or one’s clients Cleveland, later, v. United States 128 F.3d 270 future cases. But the Court construes — (5th denied, Cir.1997), -, cert. that the word “calculated” in the context of (1998) (up objectively likely 140 L.Ed.2d 670 to mean rather holding sweeping prior startling a restraint is a than intended. This construc- right press discharged by Whether or com- to interview tion. informed case law sense, jurors proba- juror’s ordinary lawyer fear of interviews mon would pro- Nowhere, however, the “influence” does in the bly the word “calculated” understand “encouraging” speech statute, distinguish “merely,” the modifier followed vision State, insulting” speech. Both kinds require specific intent. See Corson “abusive influential, undoubtedly 148 Tex.Crim. S.W.2d “willfully” in (holding that the word be tainted kinds of both self-serving criminal statute meant not that the act motives. improper, “ intended, ‘that the means used Louisiana, 536, 557-58, Cox (citation maim’”) him were calculated to (1965), 13 L.Ed.2d omitted) added); (emphasis Schmole- John prohibitory held that broad Court Law, n. sky, Criminal 38 Sw. L.J. 506 76 enforcement susceptible selective statute (1984) (equating “specific “calculation” with equivalent “providing statute was the intent”). Also, though the “influence” even pow- discretionary licensing system of broad face, 3.06(d), provision Rule on its seems The Com- prior restraint. er” —the classic directed to communications calculated with the Lawyer Discipline, mittee for cases, sway focus- future administrative approval, acts like an Court’s letter. on the offensiveness Benton’s es censor, enforcing Rule selectively “intended” or Whether “calculated” means negatively influ- against speech deems 3.06(d)’s to,” simply “likely influence ex-jurors. Pro- ence See Southeastern provision misapplied has been to Benton’s 546, 559, Conrad, 420 U.S. motions Ltd. v. letter. (1975) (condemn- S.Ct. 43 L.Ed.2d any I do not that is basis for believe there “the line be- ing prior restraints characterizing being Benton’s letter calcu- legitimate illegitimate is tween and lated, is, intended, specifically predis- to finely of free- often so drawn that the risks jurors particular lawyer, pose future to a formidable”). These wheeling censorship are firm, discourage to side docket or 3.06(d), of which resem- characteristics them from future service. Benton admits restraint, prior belie the ble those of jurors attempted that he to the influence Davenport. attempt distinguish to Court’s cases, ways. future but not in those Benton only that he to chastise the admits intended Ill

jurors them for their decision and influence fairly in to decide future cases. however, 3.06(d), does not withstand applicable compelling interest test Similarly, presumptuous either the it would be to im- self-serving political speech or the substantial interest pute Clay to motives to Thomas insulting Hollis, remarks to test of While attorney representing the the Gentile. defen- discharged jury repug- ease, are the members of a underlying dant in the also wrote a who nant, they exaggeration it is an to hold jurors. letter to the letter was re- Hollis’s substantially materially preju- likely to are spectful and courteous. It influenced adjudicative proceeding. Benton’s dice an jurors willing again. to be to serve discharged jurors did not threat- letter to If, however, lawyers’ motives are irrel- It anyone’s rights. fair did not dis- en trial evant, argued then it could be that Hollis’s proceeding, rupt or other court burden letter, Benton’s, on improper like had effects much less his Benton’s letter' own. While jurors, likely making them more to the same Court, justifiably it had at most offends this him, firm, his or his clients future favor impact potential on the administra- remote goose is for the is sauce cases. What sauce justice. tion of gander. Peoples v. Sav for the See Lewis (Tex.Civ. Loan, ings S.W.2d precious negotiating our citizens’ When n.r.e.). ref App. writ d freedoms, —Austin First Amendment courts should be supposed harms not that it careful not to overstate The of Benton’s letter was bane by partial of those freedoms. to one side caused the exercise influenced the to be McCormick, 129 Tex.Crim. The Ex Parte or the other in a future case. substan- Cf. (“It (1935) appears to us of its “abusive 88 tive evil Benton’s letter was S.W.2d unduly stresses the tenden- respondent insulting” character. 980 at 433. S.W.2d ey newspaper reports public of accurate ages them and who such dia- others hear of jus- trials to embarrass the administration from But tribes further service. these tice.”) added); (emphasis Abrams v. United evils are not without alternative remedies. States, 616, 630, salutary judges S.Ct. and other (1919) (Holmes, J., L.Ed. 1173 dissenting) “officers” of the court overcome the (“[W]e eternally vigilant against should be lawyer’s baneful influences of a ill remarks. attempts expression to check opinions 357, 377, Whitney California, that we loathe (1927) and believe to be with fraught (Brandéis, 71 L.Ed. 1095 S.Ct. death, (“If they imminently J., unless so threaten concurring) expose there be time immediate through interference the lawful and discussion the and falla- falsehood pressing purposes cies, of the law that an immedi- process avert the evil required_”). ate check is especial- education, This is remedy applied be more ly silence.”) political speech true where speech, at issue. (emphasis add- enforced See, Primus, e.g., 434-36, ed). Moreover, re exercise of suasion moral 1893 (holding political “[w]here from bench the bar will most deter expression issue,” pro- lawyers association is at imitating other Benton’s con- scriptions justi- Johnson, speech cannot temptuous behavior. See Texas v. “very harm”); (“The fied possibility distant way 109 S.Ct. 2533 Button, NAACP preserve flag’s special pun- role not to 9 L.Ed.2d 405 (holding differently per- ish those who feel [but] constitutionally NAACP solicitation pro- they them wrong.”). suade Our interest). despite potential tected conflict of federal and state protect constitutions Ben- others, right ton’s ridicule also potential juror’s Court reasons that a protect bar, rights public, anticipation mere critical post-verdict our courts to him. criticize speech poses a substantial likelihood of mate- rially prejudicing adjudicative pro- if possibility receiving future Even of a rude ceedings. Court, According to the “the potential population letter so deterred the of by disappointed threat of verbal attacks law- assembled, jurors jury that no I could be am yers atmosphere creates an of intimidation complete justify not convinced that it would a jurors’ during trial that can impartiali- affect prohibition on such communications. Git Cf. ty.” 980 S.W.2d at 434. York, low v. New (1925) (Holmes, J., 69 L.Ed. 1138 dis Criticism, Benton’s, especially harsh as senting) (arguing speech that free should unpleasant. is prompts often Criticism a prevail even if meaning it its and conse- reactions, finds range of wide from remorse to quence proletarian dictatorship). in a In a anger indignation, and intimidation to as di- vein, argued similar others have that commu- personalities subjected verse as to it. speech values, discourages nist democratic danger But the is far-fetched that all six or Gitlow, at see 45 S.Ct. 625 U.S. jury panel, twelve members of a aware (holding subver- communist was attorney’s tendency some to verbalize his representative democracy), sive of and that contempt jurors, will be into intimidated flag-burning demoralizing is so threat- a reaching verdict that avoids her his or Johnson, national security. ens See Texas v. It acting criticism. is common sense that (Rehnquist, 109 S.Ct. 2533 contemptuously juries likely toward is more J., dissenting) (discussing demoralizing lawyer’s to diminish rather than enhance a flag effect desecration on American gaining chances of In- favorable verdict. troops). But of communists deed, juror who testified of her reluc- flag-burners, however inconsistent with bed- panels tance to serve on future also stated values, protected. rock American has I been letter,” “[a]s direct result Benton’s poses cannot believe that Benton’s letter supporting she “now lawsuit re- abuse greater threat. form.” plausible more impose Court’s concern is that When a court considers whether post-verdict speech speech, prophylactic against critical discour- or enforce a rule sup- CONCLUSION very least discount

it should improbability. gravity by evil posed part of the its today strikes out holding The Court’s Dennis, 183 F.2d United rule’s sanc- preserves States of Rule J.) (“In (2d Cir.1950) (L.Hand, expression case each amount of substantial tion on “a by the shielded gravity repugnant ask [a must whether that —however court] —is R.A.V., justi- Amendment.” ‘evil,’ by improbability, its First discounted (White, J., concurring speech as is neces- such invasion of free fies plurality of this years ago a judgment). Five danger.”), aff'd, 341 sary to avoid the Court wrote: 95 L.Ed. 1137 to favor Today continues formula). our court It (adopting Judge Hand’s famous freedom!,] not growth and enhancement letter, by extremely unlikely Benton’s is vigorous de- The fact that constraint. its itself, presents to the a substantial threat society may in our public issues bate justice. vitriol would administration Such obnoxious produce speech considered widely a “sub- to be imitated create have necessary cost of by some offensive system. Howev- stantial” threat calls on Our Constitution that freedom. er, equally improbable. this is court to maintain commitment this disciplinary and at hear- In his affidavit his strong uncompro- expression that he he had ing, Benton stated that wished mising foe alike. for friend and letter, explaining: never sent (Tex.1993) Tucci, Ex Parte J.). opin hope today’s (opinion Doggett, I all, is, My position do first of that I don’t exception proves to be narrow ion this, community I myself a small like —in that trend. writing myself any by do not do favors I dissent. jurors. if I angry, Even critical letters to they wrong, help myself I don’t believe Justice, BAKER, by joined SPECTOR and them, criticizing at all Justices, GONZALEZ, as to Parts joined they may on a be a future client. II, dissenting. I and They may influence future clients. as- Today holds that some the Court lawyers enough majority of The vast vagueness. void for pects Rule antagonize good not to decorum and sense (1) it can avoid concludes that The Court they jurors, upset are their even when with furthering defin- vague by holding “harass” underlying judge in the verdicts. The trial (2) term, facially “embarrass” is case, 1949, to the bar in testified admitted (3) vague. is not vague, and that “influence” years practice and as a all of his 3.06(d) However, is un- Rule I believe that judge, only had he encoun- one other time vague respects. Fur- constitutionally all lawyer a improperly who contacted tered a thermore, is unconstitu- because Rule juror. Attorneys antagonize jurors un- who disposes tionally vague, and that conclusion reputation and eco- professional their dercut appeal, should the Court of the Commission’s self-interest, a especially in small com- nomic Amendment, Equal First not reach Benton’s munity, expected to do so. so few can be Protection, challenges. Be- or overbreadth very justi- Only pessimistic a view of the bar otherwise, I re- cause the Court concludes is prophylactic a rule the belief that fies spectfully dissent. stop from re-

necessary in others order I. REVIEW STANDARD OF example. See peating Benton’s obnoxious 648, Zauderer, 2265 105 S.Ct. 471 U.S. process that a principle a of due It is basic (“[W]e undignified be- unpersuaded if regulation vagueness is void statute or as to sufficiently identify to recur so often havior would tend the conduct it not does rule.”). City Grayned should prophylactic prohibits. a We it See warrant rules, 104, 108, suasion, just legal 92 33 Rockford, not 408 S.Ct. employ moral U.S. (1972). Unconstitutionally unbecoming of 222 attorneys behavior L.Ed.2d deter (1) to vague void for three reasons: laws are profession. 454 punishing people Supreme

avoid for behavior that The United States Court has (2) forbidden; not regulation capable could have known was to held when a is subjective interfering avoid party’s right enforcement of laws with a free based arbitrary on discriminatory interpreta- speech, greater courts should “demand[] officials; government tions degree specificity than in other contexts.” any chilling 566, 573, avoid Goguen, effect the exercise of Smith v. 415 U.S. speech (1974); rights. Grayned, free See 408 U.S. at 605 39 L.Ed.2d see also 108-09, Grayned, 92 2294. S.Ct. at 109 n. 2294. U.S. S.Ct. “perhaps Court has stated that vagueness regu- The traditional test important affecting the most factor the clari latory prohibitions regulation is whether the ty that the Constitution demands of a law is ordinary person is “set out in terms that the whether threatens to the exercise of inhibit exercising ordinary common sense can suffi- constitutionally protected rights. If ... with, ciently comply understand and without law right interferes with the of free public sacrifice to the interest.” United stringent vagueness a more test should States Civil Serv. Comm’n v. National Ass’n apply.” Village Estates, 455 of Hoffman Carriers, 548, 579, Letter S.Ct. 499, 102 atU.S. S.Ct. (1973); 37 L.Ed.2d 796 see also Howell Bar, (5th Cir.1988) v. State 843 F.2d repeatedly While courts have held that (reviewing constitutionality lawyer’s speech rights of former free can be restricted 1-102(A)(5)); Disciplinary ordinary person, Texas more Mus than that of this Bar, slewhite v. State 441 does mean that the First not Amendment (Tex.App. constitutionally protect lawyer’s [14th writ does Dist.] —Houston denied) Gentile, (reviewing constitutionality speech. See 2-101). Disciplinary lawyer person former Texas Also S.Ct. 2720. “[A] is a and he important particular context which too has a constitutional freedom of utterance regulation applies. may it to castigate See Gentile State exercise courts and Bar, 1030, 1048, justice.” their administration Saw- re (1991). Thus, 622, 666, reviewing yer, when (1959)(Frankfurter, disciplinary only applies J., rule that to attor- L.Ed.2d 1473 dissent- Thus, neys, “ordinary person” ing). though becomes “or- regulate state Howell, lawyer.” dinary lawyer’s speech, 843 F.2d his her is nonethe- ordinary protected constitutionally speech. different because law- less yers guidance provided have “the benefit of Here, recognizes that Rule law, by case court rules and the ‘lore capable interfering lawyers’ ” Howell, profession.’ (citing F.2d at speech rights free and that Benton’s letter Snyder, In re And, political speech. 980 S.W.2d 436. (1985)). 2874, 86 L.Ed.2d 3.06(d) though the Court concludes that Rule rules, analyzing

In regulation speech, statutes or courts is a of draw constitutional that change distinctions between civil criminal stat- does not the fact that the Rule is general, “greater In capable interfering speech. utes. there is tolerance of with There- fore, irrespective of enactments with civil rather than criminal Rule’s civil nature of the 3.06(d) penalties consequences impre- irrespective because of of whether Rule is a qualitatively Village constitutionally cision are permissible less severe.” restriction Flipside, speech, stringent void-for-vague- Estates v. the more Hoffman of Hoffman Estates, Inc., 489, 498-99, applies 102 greater degree 455 U.S. S.Ct. ness standard of (1982). 1186, Texas, Smith, 71 specificity required. L.Ed.2d 362 disci- is See 415 U.S. 572-73, Gentile, proceedings 1242; plinary are civil nature. See 94 S.Ct. see also Evans, 656, 1051, Bar v. 501 (concluding State 774 657 n. 1 U.S. at 111 2720 S.W.2d S.Ct. (Tex.1989). However, competing though disciplinary is a a lawyer there rule was a requires speech, interest this Court to review constitutional restriction on a more 3.06(d) stringent void-for-vagueness ap- higher Rule under a standard than standard normally applied regulations. plied prohibited speech). to civil because the rule

455 argues jury of from further discharge Ben- After Commission 3.06(d) which the clearly consideration of a matter with ton’s conduct violated Rule connected, lawyer shall attempting to not and he admitted influence to preclude questions that this Court should Ben- ask of or make comments 3.06(d) challenging ton calculated vague- Rule member that are juror merely or Village ness. The Commission relies on to or embarrass harass Estates, 495, 455 102 in future ser- U.S. to influence his actions Hoffman But, 1186, argument. support Village to its vice. Estates did not involve statute of Hoffman R. Tex. DISCIPLINARY PROf’l Conduct First interfering rights. Amendment Village Estates states Hoffman Neither nor its comments de- challenges “vagueness do statutes which “harass,” “embarrass,” fine or “influence.” not First involve Amendment must freedoms Additionally, courts have never inter- Texas light examined facts 3.06(d). Nationwide, preted Rule nineteen Estates, Village case at hand.” Hoffman same or similar to other states have rules the 7,102 (emphasis 455 U.S. at 495 n. S.Ct. 1186 3.06(d).1 However, only a few cases added). However, the United Su- States Rule. Of the applied have discussed the or preme Court has held in other cases Rule, cases that did none dealt discuss purports prohibit when a speech, statute Elisovsky constitutionality. with its See v. challenge vagueness defendant State, (Alaska 1979); 592 1221 Lind v. P.2d though vague applied the statute not Medevac, Inc., Cal.App.3d 268 219 Cal. the defendant’s conduct. See Kolender v. Rptr. Respon (Cal.Ct.App.1990); 359 In re Lawson, n. 461 358 (Cal. A, Rptr. 1 Cal. dent State Bar Ct. 255 (1983); Gooding L.Ed.2d v. Ct.1990); Berning, Bar In re 468 N.E.2d 843 Wilson, (Ind.1984); Socolofsky, State Kan. (1972); L.Ed.2d v. City Coates Cincin- (1983); 666 P.2d 725 Commonwealth v. nati, 611, 619-20, Solis, (1990); N.E.2d 938 Mass. (1971) (White, J., dissenting). Hansen, (Minn.1982); In re 318 N.W.2d Otherwise, the “continued existence of the City, Willoughby City Oklahoma statute in unnarrowed form would tend (Okla.1985); Thomas, P.2d 883 State v. suppress constitutionally protected rights.” McCarter, (Tenn.1991); S.W.2d 395 State v. Coates, (White, U.S. at 91 S.Ct. 1686 (Tenn.Crim.App.1990). 1990 WL 166614 J., dissenting); Gooding, see also little, Consequently, provide these cases if 521, 92 S.Ct. 1103. guidance. any, II. FACIAL VAGUENESS in- Commission has not offered CHALLENGE “harass,” sight interpreting terms “embarrass,” Instead, vague “influence.” regulation A statute on its face ordinary simply Commission claims that requires person the sense that it lawyer should what each understand term imprecise his conduct to an conform but Thus, means. I must look to terms’ comprehensible standard, normative ordinary interpretation meaning no rather in the sense that standard given analogous regulations. courts result, specified at all. As a conduct Grayned, 408 U.S. at 92 2294. intelligence “men of common must neces- sarily meaning.” guess at its

Coates, 614, 91 S.Ct. (quot- 1686 A. EMBARRASS HARASS AND Co., ing Connally Constr. 269 General Dictionary Black’s Law defines “harass- (1926)). 385, 391, 126, 70 L.Ed. 322 “words, gestures ment” as and actions which 3.06(d) provides: annoy, (verbally) Rule tend to alarm and abuse 3.06(d), "harass," "embarrass,” 1. well as as rules in include the similar terms states, is other taken from ABA Model Code "influence” without definitions. 7-108(D). Responsibility DR All Professional Dictionary person.” statute, stalking another dant sec- attacked the Black’s Law (6th ed.1991). Generally, 42.07(a) Code, harassment is tion Texas Penal claim- of the repeated a course of conduct or action. See unconstitutionally vague.2 that it was Dictionary (6th ed.1991); Black’s Law Appeals Court of struck Criminal Dictionary WebsteR’s New InteRnational vagueness, specifically statute down for (2d ed.1960). The term “embarrass” only upon “an- based its decision words implies some influence that makes one feel noy” Long, at and “alarm.” See 931 S.W.2d uneasy, usually in presence strangers. Appeals 289. The of Criminal rea- Court See Webster’s New International Dictio- soned that terms were unconstitution- these (2d ed.1960). problem NARY (1) ally vague not statute did they these inherently definitions is that specify whose sensitivities had to be offended Price, vague. generally See Kramer v. objective lacked an standard Cir.1983) (5th (vacated F.2d on re- measuring conduct or annoying whether hearing repealed) (stating after statute that alarming. Long, See 931 S.W.2d at 288. vagueness is an attempting there inherent in Appeals While the Court of Criminal did people). annoys to define what The defini- “embarrass,” it rule on the terms “harass” or tions show that both “harass” and “embar- susceptible to did state that too “are subjective rass” are based on an individual’s meaning.” Long, uncertainties of Thus, feelings. might harass what or embar- at 289. person may rass one or not harass embarrass Coates, another. See U.S. at Other courts have also struck down stat- S.Ct. 1686. using “annoy” utes for term or “alarm.” Other Texas contain statutes the terms These cases are instructive because See, e.g., “harass” or “embarrass.” “annoy” terms and “alarm” are included Tex. Fam. orders); § (protective Coates, 85.022 the definition In of harass. Code Tex. Fam. (frivolous § filing 156.005 suits for Code the United Su- States modifying parent-child relationship); Tex. preme prohib- a statute that reviewed (debt § collection); 392.302 Fin.Code people assembling conducting ited Tex. § (anti-stalking 42.07 law and tele- Pen.Code annoying themselves manner.3 The law). However, phone harassment courts “an- Court concluded the term have not defined the terms used these noy” provide did not a standard of conduct statutes either. thus, person which a conform and could essence, In vague. statute was whether Only one of these statutes has been at- person depended an offense on committed vagueness tacked for Penal Code —Texas person. some sensitivities of unknown section 42.07—and the attacks were not Coates, See any based on S.Ct. 1686. the terms issue 3.06(d). State, Likewise, Long the Fifth Circuit struck down a S.W.2d 285 (Tex.Crim.App.1996). Long, predecessor to section 42.07 because the defen- provided: Former specifically report- section 42.07 the conduct directed has agency ed to a law enforcement the conduct if, (a) person A an offense commits with intent by described this subdivision. harass, alarm, abuse, torment, annoy, or rd 19, 1993, R.S., Leg., Act of June ch. another, embarrass he: 1.01, 3677-78, § Gen. Laws 1993 Tex. th Leg., amended Act of June ch. (7)(A) engages on more than one occasion § 1995 Tex. Gen. Laws 3625. The specifically conduct directed toward the other vagueness analysis court focused its on section person, including following person, that is (a)(7)(A). harass, alarm, reasonably likely annoy, abuse, torment, City provided: § ordinance 901-L6 person; or embarrass (B) on those at least one of occasions acts persons It shall be unlawful for three or more bodily injury sidewalks, words threatens to inflict to assemble ... on corners, street person against lots, or to an offense commit alleys, vacant mouths of person, person’s family, of that annoy- a member there conduct themselves in a manner person’s property; or persons by, occupants that passing to or of (C) engages adjacent buildings. those on at least one of occasions (1956). person § City in the conduct after the toward whom 901-L6 Ordinances Cincinnati, Ohio, up he tore two victed for harassment “annoy” officers term allowed enforcement to determining pieces was and mailed the what support too much discretion orders child provided no notice to the com- “ha- annoying holding term In that the his ex-wife. pro- person the statute mon of what conduct that vague, the court stated was not rass” Circuit, in with other The Fifth line hibits.4 required [by stat- specific state of mind “the courts, “annoy” a was was concerned phras- any vague clarify serves to ute] ” subjective feeling relied on the sensitivi- Hoffman, 695 A.2d at 245. Addi- es.... Kramer, See ties of an unknown individual. statute tionally, court noted 712 F.2d at 177-78. prohibited. was specified the conduct “ha- whether the term Courts differ about court Hoffman, 695 A.2d at The was 245-46. Bryan, State vague. In 259 Kan. rass” is “any other initially phrase concerned (1996), the Kansas Su- 910 P.2d annoyance or alarm” likely cause manner to preme held that the term “harass” Court However, applied the court too was broad. stalking vague.5 in a statute was used ejusdem generis and deter- concept of did court reasoned that because the statute pro- phrase intended mined that an not the term “harass” in relation to define upon per- a would intrude hibit conduct that standard, objective speci- did not the statute privacy.” expectation of “legitimate son’s Bryan, conduct. fy a standard reaching Hoffman, 695 A.2d In this 246. Furthermore, noted P.2d at 218. the court conclusion, the reasoned that court subjective that under a one must standard following phrase general prohibition awas person I ask: “Will this whom intend Therefore, phrase specific prohibitions. alarmed, seriously annoyed, ha- or follow with the interpreted consistent should be so, by my rassed act? If then a crime will be interfer- specific prohibitions proscribing — Bryan, committed.” P.2d right persons privacy. ence with a hand, On the other some courts have de- Martel, In State v. 273 Mont. 902 P.2d vague. termined the term is not “harass” (1995), found the Montana Court Hoffman, State 149 N.J. 695 A.2d stalking in a (1997), term “harass” as used that the Jersey Supreme the New vague statute because the a statute was reviewed harassment statute.6 defen- The court specific mental state.7 challenging dant the statute had been con- included a actually cause emotional distress The version of section 42.07.that the court substantial activity provided: Constitutionally protected person. reviewed Kramer meaning within the of ‘course is not included (A) person if A commits an offense he inten- of conduct.' tionally: § 21-3438 (1) Stat. telephone writing by communicates or in Kan. Ann. obscene, vulgar, profane, or indecent lan- provides: 6. The statute guage in a course and offensive manner or by intentionally, knowingly, this action disorderly person petty person a [A] commits recklessly annoys recipient. or or alarms the another, if, purpose to harass offense with the rd R.S., January Leg., Act of ch. he: 1973 Tex. Gen. Laws amended Acts made, Makes, a. or causes to be a communi- th R.S., Leg., September ch. anonymously or communications or cation extremely Tex. Gen. Laws 2204. hours, offensively or in inconvenient likely language, or other manner coarse provided: 5. Kansas statute 21-3438 annoyance or alarm. cause (a) Stalking and malicious intentional 1991). (West § 2C:33-4 N.J. Stat. Ann. following course of conduct directed at or following specific person course when such or provides: 7. Montana's statute alarms, annoys, seriously conduct or haras- stalking person person, legitimate the offense of if and which no A commits ses serves knowingly person purposely or causes an- purpose. person emotional distress or other substantial section, injury (d) bodily purposes apprehension of or this reasonable For the 'course by repeatedly: pattern composed death conduct’ means conduct time, period howev- of a series of acts over short, (b) intimidating harassing, threatening, continuity evidencing purpose er mail, person by phone, person person, stalked and which would cause reasonable action, device, distress, byor other or method. emotional and must suffer substantial stated that Supreme the United States al” and “elaboration” did not have “settled long recognized has requirement that “the of usage or interpretation tradition of inof law. a prohibited mental state to may do a act lawyer principle has no determining consequences avoid those to the accused pass when his remarks from the safe harbor may which vague otherwise render a or in- general to the forbidden sea of elaborat- Martel, definite statute invalid.” 902 P.2d at ed.”). (citing States, 19-20 Screws v. United complicating Further matters is that Rule 89 L.Ed. 1495 3.06(d) by does not state whose sensitivities (1945)). ease, In a similar a Pennsylvania Coates, judge we the conduct. See state court Pennsylvania’s stalking reviewed argument 91 S.Ct. 1686. An could be statute and reached the same conclusion. made that the comments the Rule estab- The court party reasoned that a who acts lish persons upon as the whose sensi- intentionally cannot claim confusion about depends. tivities a violation The comment what conduct prohibits. statute See general makes a statement that “[w]hen ex- Hendrickson, Commonwealth v. 453-Pa.Su trajudicial juror per- communication with a per. 171, 178 684 A.2d law, mitted it should be made United States Court has personal deference to feelings lacking any objective held that statutes stan- juror.” Tex. DISCIPLINARY R. PROF. Conduct give dard do not prohib- notice of the conduct Yet, 3.06 cmt. 1. this comment seems to ited open arbitrary and are and discrimi- apply only extrajudicial communication the natory Coates, enforcement. See 402 U.S. at permits, Rule not those that violate Rule 1686; Kramer, accord 712 F.2d 3.06(d). However, even if the Rule does at 178.8 Conspicuously missing from Rule establish that the Commission should use person is a reasonable or reasonable particular juror’s each sensitivities to decide juror determining standard for what is ha- lawyer Rule, whether a has violated the there rassing embarrassing. prohibits The Rule problem is still the that a violation relies on lawyer communicating in a manner subjective feelings discharged of each “calculated merely to harass or embarrass juror. simply The Rule does not establish juror.” However, these terms deal with any objective person reasonable or reason- subjective feelings, something that har- juror Coates, able standard. See 402 U.S. at person asses or may embarrasses one 613, 91 S.Ct. 1686. necessarily harass or embarrass another. Coates, objective The Court bootstrap tries to See 402 U.S. at 91 S.Ct. 1686. regulates concluding That the standard into the Rule lawyers that the does not any However, make term likely. the terms “calculated” means clearer because the law many generally does not cases define the have decided terms “harass” otherwise. These Therefore, cases hold lawyer “embarrass.” the word’s can connotation of only rely analysis conscious ordinary meanings the terms’ indicates that calculated and does not specific more of an refers to a advantage knowledge mental state of Soweco, person Co., than the common may to know what or intent. See Inc. v. Shell Oil (5th may person.9 Cir.1980); not harass or embarrass a F.2d Herrick Gentile, generally Court, See Superior 501 U.S. at 111 v. Cal.App.3d (concluding S.Ct. 2720 “gener- (1987); that the terms Cal.Rptr. Moody v. Hurri- § Snyder, 45-5-220. Mont.Code 105 S.Ct. 2874. Howev- Ann. er, 3.06(d) presents the situation Rule is differ- Long 8. The court did note that the absence of a conduct, professional ent. To determine what is person necessarily reasonable standard is not lawyer rely can on a written code of conduct constitutionally. fatal to a statute's If a statute years of education. Under Rule provisions, setting contains other such as out lawyer given guidance. is not similar conduct, specifically prescribed might the offense 3.06(d)’s depends upon subjective violation sufficiently vagueness. defined to avoid Therefore, feelings of some unknown individual. Long, 931 S.W.2d at 291. can base his decision on his own recognized lawyers knowledge Courts have can deter- of human kind and what harass "professional” mine person. what is conduct. See In re or embarrass a lawyer’s actions are Co., by a sensitivities 290 Or. whose cane Lumber Creek 3.06(d) Moreover, directly pro- agree judged. Rule P.2d I with these Long, when speech. as used in And as stated courts —the term “calculated” hibits 3.06(d) requirement intent specific Rule intent. free involved an means is clarify vague enough not generally is requirement specific with a intent Statutes 293. Ac- Long, 931 at See S.W.2d terms. However, vagueness problem. a can avoid 3.06(d)’s requirement intent cordingly, Rule Smith, In always not the the is case. or clarify “harass” “em- not the terms does irrespective Court stated that the Rule and cannot be used save barrass” required prohibited whether the statute the vagueness. from inadvertent, conduct to be intentional clarify prohibited not statute still did restric- certain courts have allowed While Smith, 578-81, at conduct. regulating lawyers’ speech, the rules on tions line, Along Circuit 1242. the same Fifth unconstitutionally vague. lawyers cannot be “specifying held an intent element does Gentile, 1049-50, 111 S.Ct. See 501 U.S. at vagueness from because statute] not save [a 3.06(d) what con- Rule not state 2720. does the conduct which must be motivated embarrassing. harassing or duct it considers intent, well as as standard which Furthermore, objec- not an the Rule does set assessed, vague.” conduct is to be remains making that determination. tive standard for Kramer, at 712 F.2d 178. 3.06(d) Instead, of Rule rests en- a violation subjective feelings some un- tirely Importantly, Long court noted that Thus, vague Rule is person. known likely a courts were more to determine that requires person to that it “not in the sense requirement specific intent saved a statute imprecise but his conduct an com- conform being vague from when the First Amend- standard, rather prehensible normative ment not involved reviewed and courts no conduct is sense that standard of the statute under a more deferential stan- Coates, at (discuss- specified at all.” Long, dard. See vague statutes that courts held not be- specific requirement). cause of a intent improperly concludes that Court While essence, impli- First is when the Amendment likely, the Court still “calculated” means cated, possibil- courts are concerned with the conclusion that “embar- reaches correct ity chilling free and an intent re- However, vague. the Court errone- rass” is quirement may enough clarify not be ously recognize fails to that “harass” suffers Thus, vague specific with terms. even Even pitfalls from as “embarrass.” the same requirement, people intent will steer far of “cal- assuming that the Court’s definition necessary prohibited wider than from correct, reasoning the Court culated” is Grayned, conduct. See 92 applies “embarrass” is to determine that S.Ct. 2294. vague applies equally as well to the term “embarrass,” Here, “ha- as with contains an intent re- “harass.”10 Just entirely feeling. subjective quirement of “calculated to or embar- rass” is What harass Disciplinaby person may harass an- R. harass one rass.” Tex. Professional 3.06(d) (1990). Yet, concluding is To avoid that “harass” Smith other. Conduct Kramer, vague requirement the Court decides borrow harass- the intent here outside this clarify “embar- ment definitions statutes does not what “harass” or Yet, any just other states have give state. rass” means and does not foresight to the term “harass” harass had the define more notice about what conduct would Smith, vagueness. this Rule from juror. does not save or embarrass a Kramer, 1250-51; Rather, 579-82, the fact that the Court deemed subjec- specific applies necessary to look statutes F.2d at 178. The still “harass” as specify definitions evinces the fact that of conduct and does not tive standard person to problem. It even difficult for a Interestingly, that the more if correct intended, "likely” likely will harass or embarrass its determine what term "calculated” means vagueness juror. simply adds conclusion to the Rule’s 3.06(d), definition, distress, used in Rule actually without tial emotional and must vague. cause substantial emotional to the distress person.”) § (quoting 11 1312A Del.Code importantly though, More the Court’s add- (b)(1)); Johnson, (stating 449 S.E.2d at 95-97 ed definition of “harass” also suffers severe that the statute defines “harass” as “a know- vagueness problems. The Court borrows its ing and willful course of conduct directed at a stalking definition from statutes. These specific person which causes emotional dis- stalking regulate statutes do not seek to by placing person tress such in reasonable speech, regulate but rather seek to conduct. bodily fear of death harm to himself or See, State, e.g., Johnson v. 264 Ga. herself or to a member of his or her immedi- (stating S.E.2d stalking that the family_”) (quoting § ate 16-5- Ga.Code prohibit statute does not pro- conduct that is 90); Fonseca, (“ 670 A.2d at 1238 ‘Harasses’ expression tected under the First Amend- knowing means an willful course con- ment); Fonseca, State v. 670 A.2d specific person duct directed at a which seri- (R.I.1996) (stating that the defendant’s First alarms, ously annoys, person or harasses the Amendment interests were not threatened legitimate purpose. and which services no statute). Thus, statutes The course of conduct must be such as would Court uses to create its definition of harass- person cause a reasonable to suffer substan- ment were all reviewed under a standard distress, bodily tial emotional or be fear of different from applies that which in this ease. injury.”) (quoting § R.I. Gen. Laws 11—59— As the Appeals recognized: Court of Criminal 1(2)); State, Luplow v. 897 P.2d “If the First Amendment can be removed (“ (Wyo.1995) engage in ‘Harass’ means to arena, stalking from the statute can be including course of conduct but not limited to pro- evaluated under more deferential due threats, threats, verbal written vandalism or standards, cess likely and is thus more contact_”) physical (quot- nonconsensual scrutiny.” Long, survive See 931 S.W.2d at Wyo. 6-2-506(a)(iii)). § Stat. 3.06(d) conduct, If regulated only Rule conspicuously Court’s definition lacks this may the term very “harass” not well specificity. vague. been Second, perhaps dangerous, more though, regulates Here Rule legitimate no purpose prong of the “ha- speech. requires As stated earlier this Langford City rass” definition. See higher degree Rule to have a specificity. Omaha, (D.Neb.1989) 1460,1464 F.Supp. Smith, In 94 S.Ct. 1242.' (stating phrase purpose “without applying standard, heightened this legitimate communication” was unconstitu- Court’s new definition for “harass” is still tionally vague). prong, Under this the Com- First, vague. the term prey “distress” falls arbitrarily mission is free to enforce the Rule vagueness problems to the same inherent because it can determine communica- what “harass” Simply, and “embarrass.” what “legitimate” tions are and what communica- person may distress one not distress Additionally, lawyers tions are not. bewill Coates, another. See guess left to which communications serve a Moreover, S.Ct. 1686. the statutes that the “legitimate purpose” and which communica- creating Court uses for its definition of “ha- Langford, F.Supp. tions do not. See specific rass” either included conduct that simply 1464. The Constitution demands harassing provided would be considered greater specificity. Accordingly, I do not objective determining measure for what believe that the Court’s new definition of State, harassing. See Snowden v. passes “harass” constitutional muster and (Del.1996) (“ A.2d 36 n. ‘Harass’ means vague- thus it cannot save Rule knowing and willful course of conduct di ness. specific person seriously rected at a which alarms, annoys, person, or harasses the B. Influence legitimate purpose.

which serves no 3.06(d) prohibits lawyers course of conduct must be such as would from com- person municating jurors cause a reasonable discharged suffer substan- in a man- continually courts have [jurors’] particular, actions ner calculated “to influence regulating that statutes legislatures R. in future service.” warned Tex. DISCIPLINARY 3.06(d) (1990). guide- rights must contain again, But First Amendment Prof’l Conduct guide- these pro- for Without does state what conduct it lines enforcement. courts, enforcers a serious risk that lines there is example, hibits. For Texas state censorship form practice attorneys exercise their own is common for to send will See, Kolender, e.g., viewpoint discharged thanking them discrimination. letters (stating I know for their service. of no concerned with disciplined sending Court was has been a letter of First nature, arbitrary suppression though potential this even it is obvious Smith, liberties); 415 U.S. at jurors in to Amendment these letters are sent influence (stating standardless However, that in at one 94 S.Ct. jury future service. least prosecutors, and “policemen, jurisdiction, pro- other the term “influence” statutes allow personal predilec- juries types Virgi- pursue hibits of Under to them these letters. tions”); ju- Grayned, at 113 n. precluding nia’s 408 U.S. rule communication with discharge, (stating improper rors their for a that after it is S.Ct. licensing

lawyer jurors thanking broadly worded or- to send a letter to has “condemned grant they completed them how their such standardless dis- service.11 dinances which Virginia to that are free to public Ethics Committee was con- cretion officials personal might at their own cerned that such a letter create censor ideas and enforce challenge a facial appearance party preferences”). least the that a was at- Under discriminatory jurors’ question is tempting to influence future service. not whether “[t]he Legal occurred here but whether See Va.Code enforcement of Ethios unautho- imprecise discriminatory Op. PRACTICE, Rule Le. No. 415 & 416 is so rized Gentile, Thus, legal possibility.” profession, even within the law- is real enforcement yers agree This is do not about Rule 111 S.Ct. 2720. case what conduct 3.06(d) discriminatory example how prohibits. an excellent 3.06(d) under is in fact a enforcement Rule However, major problem with the term reality. give “influence” not its failure to notice Benton, prohibits, what Rule counsel conduct the but instead Just like defense danger arbitrary discriminatory underlying case sent a letter dis- Kolender, jurors. praised ju- charged Rule. enforcement See His letter 357-58, encouraged to serve as (quoting U.S. at rors’ efforts and them S.Ct. 1242) (“Al- Smith, just jurors again in the And like 415 U.S at future. S.Ct. Benton, though lawyer that he the doctrine focuses both on actual the defense testified enforcement, jurors arbitrary notice to citizens and intended to influence the former recognized recently jury we more future service. Two former who important aspect vagueness the Commission stated that the doctrine testified for notice, in in- principle lawyer’s ‘is actual but the other letter was successful defense jury require- fluencing participate in future [sic] element the doctrine —the them Yet, pursue legislature ment minimal the Commission did not establish service. enforcement.’”). govern against guidelines disciplinary proceedings law the defense jurors. lawyer letter When a statute fails to establish minimal for his More- over, the guidelines susceptible for enforcement it is called the defense law- Commission against arbitrary discriminatory yer as a Benton. It obvi- enforcement witness Gentile, unconstitutionally vague. disciplined and is See that the Commission Benton ous 2720; Grayned, merely not like his 111 S.Ct. did letter’s 2294; Thus, 108-09, clearly this ease illustrates Cox content. Louisiana, 536, 557-58, through “censorship selective enforcement” 7-107(C) exactly merely Virginia Disciplinary calculated to harass embarrass the 11. 3.06(d) juror influence his in future as Texas Rule and states actions same questions DR 7- "the shall not ask or make service." Va.Code Responsibility Prof’l to a of that that are comments member discriminatory and shows that enforcement III. CONCLUSION 3.06(d) just under possi- is more than I conclude that Rule is unconstitu- Gentile, bility. U.S. at Therefore, tionally vague. I would affirm 2720; 108-09, Grayned, appeals reaching the court of Ben- without Because Rule lacks challenges. regret my ton’s other I guidelines provides op- enforcement promulgat- view holds that a rule this Court portunity for obvious and disdainful view- unconstitutionally vague, ed is but a careful point discrimination, unconstitutionally it is analysis applicable of the Rule and the law vague. leaves no other alternative. Because the otherwise, Court decides I dissent. Today the Court not sanctions the Commission’s selective enforcement of Rule

3.06(d), engages but the Court itself selec- arbitrary

tive and enforcement the Rule. begins

The Court improper premise with the 3.06(d) only punishes

that Rule communica- discourage

tions that are abusive and future

jury service. How Court reaches this beyond above,

conclusion is me. As stated the Rule does not define “influence.” No KELLEY-COPPEDGE, INC., Petitioner, case law defines the term either. The Rule proscribes communications “calculated mere- ly juror’s] ... to influence actions in [the COMPANY, HIGHLANDS INSURANCE future service.” Tex. DISCIPLINARY R. Respondent. 3.06(d) (1990). There is no Prof. Conduct No. 97-0926. qualifying language that states that the influ- encouraging discouraging. ence must be Supreme Court of Texas. The Court’s conclusion that the at- defense Argued April 1998. torney’s encouraging letter does not fall 3.06(d)’s parameters within merely Decided Nov. 3.06(d). highlights problems with Rule Rehearing Overruled Dec. provides The Rule no standards for deter- Thus, mining prohibited conduct. while want letters similar to the de- pur-

fense’s letter to fall outside the Rule’s

view, simply vague the Rule is too to reach

that conclusion. specificity

Without more about what the means, lawyers

term “influence” will be left guess about what the Commission will improper

deem and will be forced to “steer

far wider of the if unlawful zone than clearly

boundaries of the forbidden area were Grayned,

marked.” (internal omitted). Thus, quotations constitutionally permissible necessarily

will be chilled. The Court’s con- pun-

clusion that Benton should have been sending

ished the letter does not save the dangers vagueness

Rule from the —the Commission has unfettered discretion to mighty censorship against

wield sword of

those ideas that it finds offensive.

Case Details

Case Name: Commission for Lawyer Discipline v. Benton

Court Name: Texas Supreme Court

Date Published: Dec 31, 1998

Citation: 980 S.W.2d 425

Docket Number: 97-0228

Court Abbreviation: Tex.