Commission for Lawyer Discipline, Petitioner
Barry Robert Benton, Respondent
Chief Justice Phillips delivered the opinion of the Court as to Parts I, II, III, IV, V-A, V-B
and V-E, in which Justice Hecht, Justice Enoch, Justice Owen, Justice Abbott and Justice
Hankinson joined, and an opinion as to Parts V-C, V-D, V-F and VI, in which Justice Abbott and
Justice Hankinson joined, and announced the judgment of the Court.
Justice Enoch filed a concurring and dissenting opinion, in which Justice Hecht and
Justice Owen joined.
Justice Gonzalez filed a dissenting opinion.
Justice Baker filed a dissenting opinion, in which Justice Spector joined, and in Parts I
and II of which Justice Gonzalez joined.
This is a disciplinary action arising out of an attorney's letter attacking the integrity of jurors who rendered a verdict against his clients. The Commission for Lawyer Discipline of the State Bar of Texas charged the attorney with violating Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct, which regulates lawyers' post-verdict communications with jurors. The trial court found that the attorney had violated Rule 3.06(d) and imposed a probated suspension. The court of appeals reversed on constitutional grounds and dismissed the action. 933 S.W.2d 784; 941 S.W.2d 229 (Seerden, C.J., concurring on motion for rehearing). We reverse the judgment of the court of appeals and remand the cause to the trial court for a new punishment hearing.
Respondent Barry Benton represented the plaintiffs in a personal injury action that was tried to a jury in October 1991. The jury found the defendant liable but awarded Benton's clients no damages. In February 1992, after the trial court had granted the plaintiffs' motion for new trial, Benton sent the following letter to all members of the jury, with a copy to his clients:
Re: Florentino and Mary Esther Salas vs. Rene and Rosemarie Abete
It has been over four months since you sat on the jury in the above-referenced
case and returned a verdict that Mr. and Mrs. Florentino Salas suffered no damages
as a result of the bike accident involving Mr. Salas and the Abete's dog.
I was so angry with your verdict that I could not talk with you after the trial.
I could not believe that 12 allegedly, [
] good people from Cameron County, who
swore to return a verdict based on the evidence, could find that the Celestas were not
damaged. The only evidence admitted at trial was that Mr. Salas was hurt. The
Abete's lawyer, paid for by State Farm Insurance Company, admitted that Mr. Salas
was injured. There was no evidence introduced that Mr. Salas was not injured. Yet
by your answers, you found that Mr. Salas was not injured.
The only reason I can see as to why you ignored the evidence is that you were
affected by the "Lawsuit Abuse" campaign in the Valley. Why else would a jury
breach its oath to render a true verdict based on the evidence? I want to say that
when you make a finding in a trial which is not based on the evidence you are
perverting our civil justice system and hurting everyone in the community. Who
knows, maybe someday you will need the aid of our civil justice system and it will
be as corrupted for you as you made it for the Salases. The next time you think of
government as crooked, remember your contribution to the corruption of good
government. You knew Mr. Salas was injured, but swore that he was not.
Your cold and unfair conduct does not matter now. Judge Hester reviewed
the evidence admitted at trial and decided that your verdict was obviously unjust and
granted the Salases a new trial. The first trial now was nothing more than a waste of
everyone's time and the county's money. The Salases and myself are very relieved
that our justice system may still provide a fair resolution to their claim, despite your
If you wish to discuss anything in this letter, please feel free to contact me.
These facts came to the attention of the State Bar District Grievance Committee. The committee held an investigatory hearing and concluded that Benton had violated Rule 3.06(d), which provides:
After discharge of the jury from further consideration of a matter with which
the lawyer was connected, the lawyer shall not ask questions of or make comments
to a member of that jury that are calculated merely to harass or embarrass the juror
or to influence his actions in future jury service.
Tex. Disc. R. Prof. Cond. 3.06(d). Benton rejected the grievance committee's proposed agreed judgment of public reprimand and elected to have the complaint against him heard in district court rather than through an administrative proceeding. See Tex. R. Disc. P. 2.14.
Pursuant to Benton's election, the Commission for Lawyer Discipline filed a disciplinary petition in district court. See Tex. R. Disc. P. 3.01. Benton answered and after discovery moved for summary judgment. Although he admitted to violating Rule 3.06(d) by attempting to influence the discharged jurors' actions in future jury service, Benton argued that the rule was unconstitutional. In his first amended original answer, he argued that Rule 3.06(d) violated the United States and Texas Constitutions in that it violated his right to free speech, was overbroad and vague, and denied him equal protection of the law. The trial court accepted Benton's stipulation that he had violated the rule, but held an evidentiary hearing on punishment. See Tex. R. Disc. P. 3.10. The trial court rendered judgment suspending Benton from law practice for six months with the suspension fully probated for one year subject to the conditions that, among other things, he apologize to the jurors and perform community service.
Benton appealed on the same four constitutional grounds that he asserted in the trial court. The court of appeals reversed the trial court's judgment and dismissed the case on the sole ground that Rule 3.06(d) is void for vagueness. 933 S.W.2d 784. On rehearing, one justice issued a concurring opinion that disagreed with the majority's vagueness holding but concluded that the rule is an unconstitutional limitation on speech. 941 S.W.2d 229. We granted the Commission's application for writ of error.
Because the question of whether Rule 3.06(d) inhibits constitutionally protected speech will affect our analysis of Benton's vagueness challenge, see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 495 n.7, 498 (1982), we will begin by considering Benton's claim that the free speech guarantees of the federal and state constitutions prohibit the Commission from disciplining him for sending the letter. Of all the "truly difficult issues involving the First Amendment[,] [p]erhaps foremost . . . are cases that force us to reconcile our commitment to free speech with our commitment to other constitutional rights embodied in government proceedings." Burson v. Freeman , 504 U.S. 191, 198 (1992) (opinion of Blackmun, J.) (discussing restrictions on campaign speech in the vicinity of polling places). This is such a case, because it requires us to resolve a conflict between the expressive rights of attorneys and the public's right to impartial jury trials -- a right described in Texas's Declaration of Independence as "that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen," and prominently enshrined in both constitutions. See U.S. Const. amends. VI, VII; Tex. Const. art. I, §§ 10, 15; id. art. V, § 10.
In determining whether Benton's speech is constitutionally protected, we must first decide what standard of scrutiny to apply to the disciplinary rule. Because the United States Supreme Court has recently addressed the application of the First Amendment to lawyers' speech, we will consider the appropriate standard under the federal constitution first. See Operation Rescue-Nat'l v. Planned Parenthood , __ S.W.2d __, __ (Tex. 1998) (analyzing abortion protestors' federal free speech claim before Texas constitutional claim because United States Supreme Court had recently applied First Amendment in abortion protest context).
The Supreme Court's most recent pronouncement on the First Amendment standard applicable to lawyers' professional speech is Gentile v. State Bar of Nevada , 501 U.S. 1030 (1991). Gentile, a criminal defense attorney, held a press conference on the day his client was indicted in which he stated that the prosecution's witnesses were framing his client as part of a cover-up of police corruption. He was given a private reprimand for violating a state bar rule that "[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding ." Id. at 1060 (Appendix B to opinion of Kennedy, J.) (emphasis added) (quoting Nev. R. Prof. Cond. 177(1) (amended 1991)). The Supreme Court held that the rule's "substantial likelihood of material prejudice" standard was sufficiently protective of lawyers' free speech rights to pass constitutional muster. See id. at 1075-76 (opinion of Rehnquist, C.J.). But see id. at 1034-37 (opinion of Kennedy, J.) (urging application of "clear and present danger" standard).
Gentile acknowledged that when the speaker is a member of the press, the First Amendment does not allow the state to prohibit speech about a pending criminal case unless it shows a "'clear and present danger' that a malfunction in the criminal justice system will be caused." Id. at 1071 (opinion of Rehnquist, C.J.). The Court rejected the contention that the same high standard applies to restrictions on speech by attorneys involved in the pending case. See id. As officers of the court, lawyers voluntarily accept a "fiduciary responsibility" to the justice system and have "a duty to protect its integrity." Id. at 1074, 1076 (opinion of Rehnquist, C.J.). "Membership in the bar is a privilege burdened with conditions." Id. at 1066 (opinion of Rehnquist, C.J.) (quoting In re Rouss , 116 N.E. 782, 783 (N.Y. 1917) (Cardozo, J.)). The degree of constitutional protection afforded to lawyers' speech varies according to context:
Of course, a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice. But a lawyer actively participating in a trial . . . is not merely a person and not even merely a lawyer.
. . . .
He is an intimate and trusted and essential part of the machinery of justice, an
"officer of the court" in the most compelling sense.
Id. at 1072 (opinion of Rehnquist, C.J.) (quoting In re Sawyer , 360 U.S. 622, 666, 668 (1959) (Frankfurter, J., dissenting)). Because lawyers participating in litigation "are key participants in the . . . justice system, . . . the State may demand some adherence to the precepts of that system in regulating their speech." Id. at 1074 (opinion of Rehnquist, C.J.).
As is the case with most fiduciary positions, the privileged place attorneys hold in the justice system gives them a special capacity to harm that system. When lawyers connected to a pending case make remarks about that case, the public is far more likely to regard them as authoritative than other speakers. Lawyers not only have special expertise not shared by laypeople, but they have access to confidential information through discovery and client communications known only to them. See id. (opinion of Rehnquist, C.J.). Thus, such remarks have enhanced potential to prejudice the pool of potential jurors. Moreover, the basic fact that our system gives lawyers the dominant role in the presentation of cases at trial gives them immense influence over how jurors decide those cases.
In light of attorneys' responsibilities and powers as officers of the court, Gentile held that the "substantial likelihood of material prejudice" standard set out in the Nevada disciplinary rule was consistent with the First Amendment. Id. at 1075 (opinion of Rehnquist, C.J.). The Court did not adopt that standard as defining the outer limit on restrictions of lawyers' speech, but merely held that it was "constitutionally permissible." Id. ; see also id. at 1082 (O'Connor, J., concurring) ("[T]he 'substantial likelihood of material prejudice' standard articulated in Rule 177 passes constitutional muster."). Thus, Gentile left open the possibility that the "substantial likelihood of material prejudice" test may in fact give lawyers' speech more protection than the First Amendment requires. Because we are loathe to act on this possibility in the absence of a more definitive pronouncement from the Supreme Court, however, we will assume that the Gentile standard is a constitutional minimum.
The Supreme Court's discussion in Gentile focused on lawyers' public comments about pending cases in which they are involved, and expressly declined to decide whether a higher standard applies to the speech of lawyers who are strangers to the litigation. Although the First Amendment may well require more than a substantial likelihood of material prejudice when the lawyer is speaking as an individual citizen, this is not such a case. Rule 3.06(d) regulates only communication with jurors who heard a case with which the lawyer was connected. As in Gentile , the lawyer is a "key participant in the . . . justice system" with respect to that case and those jurors. Gentile , 501 U.S. at 1074 (opinion of Rehnquist, C.J.). The lawyer gained access to and influence over the jurors in his capacity as an officer of the court; his privileged position as a member of the bar made them his captive audience at trial. Cf. Howell v. State Bar of Texas , 843 F.2d 205, 208 (5th Cir. 1988) ("[A]s an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court . . . . The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of the courts in the administration of justice.") (quoting In re Snyder , 472 U.S. 634, 644-45 (1985)). If the lawyer tries to continue exerting his influence over the jurors after they have completed their service, he cannot plausibly claim that he is doing so as an ordinary citizen. Under the rationale of Gentile , the "substantial likelihood of material prejudice" standard is sufficient protection for attorneys' speech in this context.
The Commission has offered an additional reason for applying a standard less strict than "clear and present danger" in this case: it asserts that Benton's speech is not political and is therefore outside the core of First Amendment protection. We reject this contention. "[S]peech concerning public affairs . . . is the essence of self-government." Burson , 504 U.S. at 196 (quoting Garrison v. Louisiana , 379 U.S. 64, 74-75 (1964)). The Commission's brief states that "[i]t is an insult to the First Amendment" to categorize Benton's letter as political speech. But juries are part of our system of self-government, and criticism of the way in which jurors carry out their duties is undeniably speech concerning public affairs. Even when this speech is rude and insulting, as Benton's certainly was, it retains its political nature. See Cohen v. California , 403 U.S. 15, 25-26 (1971). Nor does the fact that the comments were made in a private letter rather than to a public audience prevent them from being political speech. See Givhan v. Western Line Consolidated Sch. Dist. , 439 U.S. 410, 415-16 (1979). Except for Benton's special status as an attorney and his professional relationship to the addressees of the letter, we would apply the same rigorous standard ordinarily used for restrictions on political speech. See Brandenburg v. Ohio , 395 U.S. 444 (1969). But Gentile applies even to political speech. Four Justices described the lawyer's comments in that case, which like Benton's letter included allegations of government corruption, as "classic political speech," Gentile , 501 U.S. at 1034 (opinion of Kennedy, J.), and the rest of the Court did not disagree.
Under the Gentile standard, the application of Rule 3.06(d) to Benton's letter does not violate the First Amendment because the letter created a substantial likelihood of material prejudice to the administration of justice. Benton asserts that post-verdict juror communications, unlike the pretrial publicity in Gentile , do not threaten the right to a fair trial because the jurors have already rendered their verdict. This analysis of the interest at stake is far too cribbed. Gentile stated that "[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by 'impartial' jurors, and an outcome affected by extrajudicial statements would violate that fundamental right." Gentile , 501 U.S. at 1075 (opinion of Rehnquist, C.J.). Because of the facts involved in that case, Gentile focused on the effect that attorneys' pretrial statements can have on this interest. But it is well established in the law that post-verdict speech can also pose a sufficiently significant threat to the fairness of jury trials to justify curtailing the would-be speakers' constitutional interests.
For example, in Haeberle v. Texas International Airlines , 739 F.2d 1019 (5th Cir. 1984), the court rejected a First Amendment challenge to a local rule that prohibited lawyers from questioning discharged jurors about their verdict. The lawyers in Haeberle , having lost a jury trial, sought permission to interview the jurors to learn why their presentation of the case had not been persuasive. See id. The court upheld the local rule, citing the need "to protect [judicial] processes from prejudicial outside interferences," id. at 1022 (quoting Sheppard v. Maxwell , 384 U.S. 333, 362 (1967)), and "the jurors' interest in privacy and the public's interest in well-administered justice," id.
Courts have used the same reasoning to uphold restrictions on post-verdict questioning of jurors against a variety of constitutional challenges by criminal defendants and civil litigants. In Tanner v. United States , 483 U.S. 107 (1987), the Supreme Court rejected a Sixth Amendment challenge to Federal Rule of Evidence 606(b), which bars discharged jurors from testifying about most forms of jury misconduct. The Court concluded that the government's interest in preserving "full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople," id. at 120-21, outweighed the possible infringement of defendants' Sixth Amendment rights. See also Soliz v. Saenz , 779 S.W.2d 929, 934-35 (Tex. App.--Corpus Christi 1989, writ denied) (holding that Texas Rule of Civil Evidence 606(b) did not deprive civil litigants of due process or trial by jury, but protected "purity and efficiency" of jury system as required by Tex. Const. art. I, § 15).
Protecting the integrity of the jury system has even led courts to permit some restrictions on the press's First Amendment right to gather news. In United States v. Cleveland , 128 F.3d 267 (5th Cir. 1997), cert. denied , __ U.S. __ (1998), the Fifth Circuit rejected a newspaper's First Amendment challenge to an order requiring all persons to obtain court permission before interviewing the discharged jurors in a high-profile government corruption case about their deliberations and verdict. Because "[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world," id. at 270 (quoting Clark v. United States , 289 U.S. 1, 13 (1933)), the court concluded that the First Amendment permitted the order as a narrowly tailored protection against "the danger . . . that compromises of the secrecy of jury deliberations presents [ sic ] to our criminal justice system's reliance on jury determinations." Id.
These cases establish the principle that the constitutional rights of parties and the media to communicate with discharged jurors for various purposes must sometimes yield to the competing constitutional interest in preventing damage to the jury system. Like Rule 3.06(d), these and related cases specifically recognize that the state's interest in protecting the jury system includes preventing post-verdict juror harassment. See Tanner , 483 U.S. at 120 (quoting McDonald , 238 U.S. at 268); United States v. Antar , 38 F.3d 1348, 1363 (3d Cir. 1994); United States v. Kepreos , 759 F.2d 961, 967 (1st Cir. 1985); United States v. Harrelson , 713 F.2d 1114, 1116 (5th Cir. 1983); United States v. Moten , 582 F.2d 654, 666 (2d Cir. 1978). They recognize that impartial jury decisions may be endangered by events taking place after the jury has rendered its verdict, as well as before. If post-verdict interviews are permitted, the cases reason, that fact will become common knowledge among jurors, and the anticipation of such interviews will affect jurors' behavior in deliberations. See Tanner , 483 U.S. at 120-21; McDonald , 238 U.S. at 267-28.
Texas's rules governing post-verdict contact with jurors are more permissive than the federal court rules and orders upheld in the cases above. We have long concluded that communication between parties, counsel, and discharged jurors can be a valuable experience for all concerned. In particular, a lawyer such as Benton who has lost at trial may respectfully ask the jurors to tell him why they were not persuaded by his case, and thus learn something that will help him serve his clients better in the future. Accordingly, Texas trial judges in civil cases are required to instruct jurors after the verdict that once they are discharged they are free to discuss the case with anyone, including the attorneys and parties, and that the attorneys may question them about their deliberations. See Tex. R. Civ. P. 226a, Approved Instruction IV. But because we are aware that post-verdict communication carries dangers as well as benefits, we have adopted Rule 3.06 as a narrow prohibition on those questions and comments that tend to injure the jury system.
The abusive and insulting comments in Benton's letter threatened to damage the jury system in at least two ways. First, the testimony at Benton's punishment hearing established that the letter discouraged jury service. One of the jurors to whom Benton sent the letter testified that although he had felt it was an honor to serve as a juror in the underlying personal injury case, he intended to express bias in future voir dire proceedings in order to avoid being chosen for jury service again. The sole reason for this change, he stated, was that he did not want to receive another letter like Benton's. Another juror's testimony illustrated the wide-ranging indirect impact a communication like Benton's can have on the jury system by affecting what discharged jurors tell potential future jurors about their service. That juror testified that she was formerly very involved in voter registration efforts, but that she stopped that activity after receiving Benton's letter because if people asked her about the possibility of being called for jury duty as a result of registering to vote, she would have to tell them about her negative experience with Benton and she felt it would cause them not to register.
Second, the fear of receiving abusive post-verdict communications like Benton's letter threatens to affect jurors' service while the trial is still in progress. Like the discouragement of jury service, this problem will affect both individuals who received Benton's letter when they are called for jury service again and other potential jurors who hear about Benton's conduct. Because a juror who has a personal interest in the outcome of the trial cannot be impartial, it is improper for a lawyer to tell jurors that they should vote a certain way in order to avoid facing a negative reaction from the community, see Hendrix v. State , 474 S.W.2d 230, 233 n.1 (Tex. Crim. App. 1971), or from a person involved in the case such as a crime victim, see Carter v. State , 650 S.W.2d 843, 847 (Tex. App.--Houston [14th Dist.] 1982), aff'd on other grounds , 650 S.W.2d 793 (Tex. Crim. App. 1983). Similarly, the threat of verbal attacks by disappointed lawyers creates an atmosphere of intimidation during trial that can affect jurors' impartiality. An outcome affected by extrajudicial statements violates litigants' fundamental right to a fair trial. See Gentile , 501 U.S. at 1075 (opinion of Rehnquist, C.J.); see also Tex. Disc. R. Prof. Cond. 3.06 cmt. 1 ("To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences."). This principle holds true even if the statements occurred in connection with another proceeding and their effect on the outcome is indirect.
Rule 3.06(d)'s prohibition on comments calculated "to influence [a discharged juror's] actions in future jury service" does not violate the First Amendment as applied to Benton for the same reasons. The letter seeks to influence the recipients' future jury service solely by attacking their performance as jurors in Benton's case. For example, Benton's own affidavit admitting that he intended the letter to influence the jurors specifically points to the statement, "I want to say that when you make a finding in a trial which is not based on the evidence you are perverting our civil justice system and hurting everyone in the community." No matter how laudable Benton's goal of persuading jurors to behave fairly in future cases, the state may legitimately prohibit him from couching this message in an assault on the juror's service in a case that he tried. Rather than influencing the recipient to perform well in future jury service, such comments are substantially likely to harm the jury system in the ways discussed above: influencing the juror, and others who hear about the letter, either to be subject to intimidation by lawyers in future jury service or to attempt to avoid service altogether. Thus, the application of this portion of the rule to Benton's speech is acceptable under Gentile .
In addition to his First Amendment claim, Benton asserts that the application of Rule 3.06(d) violates his right to free speech under Article I, Section 8 of the Texas Constitution, which provides in pertinent part: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press." This Court has recognized that "in some aspects our free speech provision is broader than the First Amendment." Davenport v. Garcia , 834 S.W.2d 4, 8 (Tex. 1992). However, to assume automatically "that the state constitutional provision must be more protective than its federal counterpart illegitimizes any effort to determine state constitutional standards." Operation Rescue , __ S.W.2d at __. If the Texas Constitution is more protective of a particular type of speech, "it must be because of the text, history, and purpose of the provision." Id. We are aware of no textual or contextual reason to construe Article I, Section 8 as more protective than the First Amendment standard we apply today in the area of ethical restrictions on attorneys' professional speech. See generally Ex parte Tucci , 859 S.W.2d 1, 19-26 (Tex. 1993) (Phillips, C.J., concurring) (discussing history of Texas free expression clause).
The cases in which this Court has held the Texas Constitution to create a higher standard than the First Amendment have involved prior restraints in the form of court orders prohibiting or restricting speech. See Ex parte Tucci , 859 S.W.2d 1; Davenport , 834 S.W.2d 4. Our opinion in Davenport emphasized the literal text of our state constitutional guarantee in applying a heightened scrutiny to prior restraints. Because of the Texas provision's phrasing, "it has been and remains the preference of this court to sanction a speaker after, rather than before, the speech occurs." Davenport , 834 S.W.2d at 9; see also Tucci , 859 S.W.2d at 19-22, 27-28 (Phillips, C.J., concurring). As Davenport explained, "Responsibility for the abuse of the privilege is as fully emphasized by [Article I, Section 8's] language as that the privilege itself shall be free from all species of restraint. . . . Punishment for the abuse of the right, not prevention of its exercise, is what the provision contemplates." Davenport , 834 S.W.2d at 9 (quoting Ex parte Tucker , 220 S.W. 75, 76 (Tex. 1920)). Rule 3.06(d) does not impose a prior restraint on speech, so the strict standard we applied in Davenport and Tucci is inapposite.
Justice Gonzalez argues that although "not a quintessential prior restraint," Rule 3.06(d) has the same effect as a prior restraint and should be judged by the same standard. __ S.W.2d at __. But Rule 3.06(d) is not comparable to the ordinance struck down as a de facto prior restraint in Cox v. Louisiana , 379 U.S. 536, 557-58 (1965), as Justice Gonzalez suggests. See __ S.W.2d at __. The ordinance in Cox prohibited all obstructions of traffic, but was enforced only against persons who did not obtain advance permission from city officials for their parades and demonstrations. See Cox , 379 U.S. at 553, 555-56. This practice effectively "require[d] all who wish[ed] to disseminate ideas to present them first to police authorities for their consideration and approval." Id. at 557 (quoting Schneider v. New Jersey , 308 U.S. 147, 164 (1939)). By contrast, Rule 3.06(d) does not, either on its face or in practice, contemplate that lawyers should seek advance permission from the bar before communicating with discharged jurors.
Justice Gonzalez suggests that whenever a law fails to define with perfect clarity what speech it prohibits, it is tantamount to a prior restraint. See __ S.W.2d at __. This approach effectively eliminates the traditional distinction between prior restraints and other laws regulating speech. See generally Nebraska Press Ass'n v. Stuart , 427 U.S. 539, 559 (1976) (discussing differences between laws imposing subsequent civil or criminal penalties on speech and prior restraints). The Supreme Court implicitly rejected the view that disciplinary rules limiting attorneys' speech are prior restraints when it held the federal constitutional standard for prior restraints on speech, set out in Nebraska Press , inapplicable in Gentile . See Gentile , 501 U.S. at 1065-76 (opinion of Rehnquist, C.J.).
Benton also argues that Rule 3.06(d) is unconstitutionally overbroad. An overbroad statute "sweeps within its scope a wide range of both protected and non-protected expressive activity." Hobbs v. Thompson , 448 F.2d 456, 460 (5th Cir. 1971). When a statute prohibits speech or expressive conduct, the overbreadth doctrine allows a person whose own expression is unprotected to challenge the statute on the ground that it also prohibits protected speech. See New York v. Ferber , 458 U.S. 747, 768-69 (1982). This is an exception to the general rule that a person to whom a statute may constitutionally be applied may not challenge the statute based on the possibility that it could be unconstitutional in other applications. See id. at 767-68. Overbreadth challenges are permitted in the First Amendment context not for the benefit of the litigant, but for the benefit of society, to prevent the statute from chilling the constitutionally protected speech of other parties not before the court. See Secretary of State v. Joseph H. Munson Co. , 467 U.S. 947, 958 (1984). A statute that is found to be overbroad may not be enforced at all, even against speech that could constitutionally be prohibited by a more narrowly drawn statute. See Broadrick v. Oklahoma , 413 U.S. 601, 613 (1973).
However, a statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. See Members of City Council v. Taxpayers for Vincent , 466 U.S. 789, 800 (1984). "Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is 'strong medicine' and have employed it with hesitation, and then 'only as a last resort.'" Ferber , 458 U.S. at 769 (quoting Broadrick , 413 U.S. at 613). Therefore, the Supreme Court has developed a requirement that the overbreadth must be "substantial" before the statute will be held unconstitutional on its face. See Taxpayers for Vincent , 466 U.S. at 800. In other words, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Id. at 801. Only if the statute "reaches a substantial amount of constitutionally protected conduct" may it be struck down for overbreadth. City of Houston v. Hill , 482 U.S. 451, 458 (1987) (quoting Village of Hoffman Estates , 455 U.S. at 494).
Rule 3.06(d)'s prohibition on comments calculated merely to harass or embarrass a former juror is not substantially overbroad. The Fifth Circuit has upheld restrictions on post-verdict communication more broadly worded than Rule 3.06(d) based on the possibility that the prohibited speech might lead to harassment. See Haeberle , 739 F.2d at 1021-22 (blanket ban on interviewing discharged jurors); Harrelson , 713 F.2d at 1118 (ban on "repeated requests" for interviews). Rather than prohibiting all communication, as in Haeberle , or using a potentially overinclusive proxy for harassment such as mere repetition, as in Harrelson , Rule 3.06(d) defines the prohibited speech in terms of the particular evil to be prevented: harassment and embarrassment of discharged jurors, which as we have discussed are by their nature substantially likely to damage our justice system. In addition, the rule prohibits only "questions of" or "comments to" discharged jurors; it does not prevent lawyers from speaking publicly about the jury's verdict. See Tex. Disc. R. Prof. Cond. 3.06(d).
Nor is the rule's ban on comments calculated to influence discharged jurors' actions in future jury service substantially overbroad. Our discussion today has focused primarily on the dangers to the jury system from rude and abusive speech, but polite comments calculated to influence future actions in jury service may pose a substantial threat to the administration of justice in a different way. For example, such comments may damage the impartiality of the jury pool when they attempt to persuade jurors to favor a particular lawyer, firm, or side of the docket in future cases. Although we do not deny the possibility that the "influence" provision of Rule 3.6(d) may reach some constitutionally protected speech, a question we need not decide today, its impermissible applications are not "substantial . . . judged in relation to the [rule]'s plainly legitimate sweep." Broadrick , 413 U.S. at 615.
Our holding that Rule 3.06(d) is not substantially overbroad does not foreclose lawyers who believe the rule violates the First Amendment as applied to them from challenging it. We simply conclude that "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the rule's] sanctions, assertedly, may not be applied." Id. at 615-16.
Benton argues that applying a more permissive constitutional standard to restrictions on attorneys' speech than to restrictions on the speech of other persons violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Ordinarily, a law that treats different persons differently will survive an equal protection challenge as long as the distinction it makes rationally furthers a legitimate state purpose. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 54 (1983). The Constitution requires higher scrutiny only if the law discriminates against a suspect class or impinges on a fundamental right. See Plyler v. Doe , 457 U.S. 202, 216-17 (1982) . While lawyers are not by any stretch a suspect class, see Giannini v. Real , 911 F.2d 354, 359 (9th Cir. 1990), speech is certainly a fundamental right, see Plyler , 457 at 217 & n.15. Benton may not expand his speech rights, however, simply by reurging them under a different constitutional provision. "We have rejected [his] contention when cast as a First Amendment argument, and it fares no better in equal protection garb." Perry Educ. Ass'n , 460 U.S. at 54; see also 4 Rotunda & Nowak, Treatise on Constitutional Law § 20.11 at 48-49 (2d ed. 1992) ("Whenever the Court finds that a classification violates the first amendment, it alternatively could rule that the classification violated equal protection. . . . If a statute . . . does not conflict with first amendment principles, it almost certainly will be held not to violate equal protection . . . .").
Benton also asserts that Rule 3.06(d) violates the equal protection guarantee of the Texas Constitution. See Tex. Const. art. I, § 3 ("All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services."). Texas courts have generally followed federal equal protection jurisprudence in interpreting our own equal protection provision, see Lucas v. United States , 757 S.W.2d 687, 703-08 (Tex. 1988) (Phillips, C.J., dissenting) (collecting cases), and Benton has not argued that we should apply a different standard under the Texas Constitution.
Benton's vagueness claim remains to be addressed. A statute which prohibits conduct that is not sufficiently defined is void for vagueness. See Grayned v. City of Rockford , 408 U.S. 104, 108 (1972). The vagueness doctrine is a component of the Constitution's due process guarantee. See id . A vague statute offends due process in two ways. First, it fails to give fair notice of what conduct may be punished, forcing people to guess at the statute's meaning, see Coates v. City of Cincinnati , 402 U.S. 611, 614 (1971), and threatening to trap the innocent, see Grayned , 408 U.S. at 108. Second, it invites arbitrary and discriminatory enforcement by failing to establish guidelines for those charged with enforcing the law, "allow[ing] policemen, prosecutors, and juries to pursue their personal predilections." Smith v. Goguen , 415 U.S. 566, 575 (1974).
To survive a vagueness challenge, a statute need not spell out with perfect precision what conduct it forbids. "Words inevitably contain germs of uncertainty." Broadrick , 413 U.S. at 608. Due process is satisfied if the prohibition is "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers , 413 U.S. 548, 579 (1973). Because we are concerned with whether an enactment gives "fair notice to those to whom [it] is directed," Grayned , 408 U.S. at 112 (alteration in original) (citing American Communications Ass'n v. Douds , 339 U.S. 382, 412 (1950)), in scrutinizing a disciplinary rule directed solely at lawyers we ask whether the ordinary lawyer, with "the benefit of guidance provided by case law, court rules and the 'lore of the profession,'" could understand and comply with it. Howell v. State Bar of Texas , 843 F.2d 205, 208 (5th Cir. 1988) (holding disciplinary rule forbidding "conduct that is prejudicial to the administration of justice" not unconstitutionally vague).
The vagueness doctrine requires different levels of clarity depending on the nature of the law in question. Courts demand less precision of statutes that impose only civil penalties than of criminal statutes because their consequences are less severe. See Village of Hoffman Estates , 455 U.S. at 498. Attorney disciplinary proceedings in Texas are civil, see State Bar v. Evans , 774 S.W.2d 656, 657 n.1 (Tex. 1989), so disciplinary rules need not satisfy the higher degree of specificity required of criminal statutes. See State Bar v. Tinning , 875 S.W.2d 403, 409 (Tex. App.--Corpus Christi 1994, writ denied). However, when the statute's language is capable of reaching protected speech or otherwise threatens to inhibit the exercise of constitutional rights, a stricter vagueness standard applies than when the statute regulates unprotected conduct. See Village of Hoffman Estates , 455 U.S. at 497; NAACP v. Button , 371 U.S. 415, 433 (1963) ("Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.").
In considering Benton's vagueness challenge to Rule 3.06(d), the court of appeals examined the language of the rule on its face. See 933 S.W.2d at 787-88. The Commission argues that Benton should have been required to show that the rule is vague as applied to him, because a person whose conduct is clearly prohibited by a statute cannot complain that the statute may be vague as applied to others. See Village of Hoffman Estates , 455 U.S. at 495. In Benton's case, an as-applied vagueness argument would be doomed to failure because Benton stipulated that his letter to the jurors violated Rule 3.06(d)'s "influence" provision, so he cannot claim that the rule unconstitutionally failed to put him on notice that his conduct was prohibited. Cf. Whiting v. Town of Westerly , 942 F.2d 18, 22 (1st Cir. 1991) (rejecting vagueness challenge to ban on sleeping in public by parties who "testified at trial that they engaged in precisely the activity prohibited by the ordinance").
The Commission fails to recognize that the general rule against facial vagueness challenges is relaxed when the assertedly vague statute has the potential to affect First Amendment freedoms. When speech is at stake, "[a]lthough a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness . . . as applied to others. . . . This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." Gooding v. Wilson , 405 U.S. 518, 521 (1972); see also Kolender v. Lawson , 461 U.S. 352, 358 & n.8 (1983); Village of Hoffman Estates , 455 U.S. at 495 n.7. We have determined that Rule 3.06(d) does not violate the First Amendment in Benton's case and does not reach a substantial amount of constitutionally protected speech. Nevertheless, like all laws regulating speech, it has the potential to chill some protected expression if it does not define what is prohibited with sufficient clarity. Accordingly, we will consider Benton's claim that the rule is void for vagueness on its face.
We begin our vagueness review of Rule 3.06(d) by noting the significance of a term that the court of appeals and the parties appear to have overlooked: "calculated." This word modifies all three of the challenged verbs, "harass," "embarrass," and "influence." We have found no established definition of "calculated" in Texas law. One court has concluded, "The word 'calculated' . . . may mean either likely or intended." Pouchan v. Godeau , 140 P. 952, 953 (Cal. 1914). Compare Burch v. Burch , 195 F.2d 799, 811 (3d Cir. 1952) ("'[C]alculated' as used in these statutes means 'likely to' rather than 'intended to' . . . ."), with Soweco, Inc. v. Shell Oil Co. , 617 F.2d 1178, 1191 (5th Cir. 1980) ("The . . . phrase 'calculated to deceive seems to suggest that there must be some intent . . . ."). The official comment to Rule 3.06(d) supports the former interpretation: it states that a lawyer must not "mak[e] comments that tend to harass or embarrass . . . or to influence." Tex. Disc. R. Prof. Cond. 3.06 cmt. 1 (emphasis added). It is consistent with the rule's purpose of protecting the jury system to construe it not only as prohibiting lawyers from intentionally causing forbidden effects such as harassment, but also as requiring them to refrain from communications that are objectively likely to have those effects. In addition, the fact that three of the seventeen other states with disciplinary rules modeled on the same source as Rule 3.06(d) have replaced the word "calculated" with "intended" supports the conclusion that those terms are not synonymous. We accordingly interpret the word "calculated" in this context as meaning that a lawyer must not make a communication which an ordinary reasonable lawyer would foresee is likely to harass, embarrass, or influence an ordinary juror. This construction of "calculated" measures both the lawyer's speech and the juror's reaction by an objective reasonableness standard.
While statutes that "d[o] not indicate upon whose sensitivity a violation . . . depend[s]" are likely to run afoul of the vagueness doctrine, see Coates , 402 U.S. at 613, a restriction banning only "what men of common intelligence would understand would be words likely to cause [harm]" is less objectionable. See id. at 613 n.3 (quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 573 (1942)). Defining the prohibited speech in terms of what effect an ordinary lawyer would expect the speech to have assuages the vagueness doctrine's concern with whether "men of common intelligence must necessarily guess at [the statute's] meaning." Id. at 614. Similarly, it reduces the danger of arbitrary enforcement by guaranteeing that the line between compliance and violation does not simply "depend upon whether or not a policeman is annoyed," id. , or in this case, whether a particular juror is harassed, embarrassed, or influenced. Thus, although the word "calculated" is by no means a silver bullet against vagueness, its objective reasonableness standard provides a measure of due process protection that is relevant to our vagueness analysis.
Courts in other jurisdictions have disagreed on whether the term "harass" standing alone is clear enough to survive vagueness review. Compare State v. Martel , 902 P.2d 14, 19 (Mont. 1995) (not vague), with State v. Bryan , 910 P.2d 212, 217-19 (Kan. 1996) (vague). The court of appeals interpreted "harass" as equivalent to "annoy," which the Supreme Court held unconstitutionally vague in the context of a disorderly conduct ordinance in Coates v. City of Cincinnati , 402 U.S. 611 (1971). See 933 S.W.2d at 787-88. Although in colloquial usage "harass" may sometimes have the same meaning and hence the same vagueness as "annoy," we are bound to construe it to avoid constitutional infirmity if possible. See Nootsie, Ltd. v. Williamson County Appraisal Dist. , 925 S.W.2d 659, 662 (Tex. 1996); see also Kramer v. Price , 712 F.2d 174, 178 & nn.5-6 (5th Cir. 1983) (discussing use of limiting constructions to save statutes from vagueness).
The vagueness of a word like "annoy" comes from the fact that "[c]onduct that annoys some people does not annoy others," Coates , 402 U.S. at 614, so that potential defendants do not know what they must do to avoid breaking the law and enforcement is guided by officials' personal views rather than any consistent standard. Rule 3.06(d)'s "harass" provision can be construed to avoid this unpredictability and standardlessness. We have looked for guidance to statutes, in particular criminal stalking statutes, containing definitions of the word "harass" that have withstood vagueness challenges. These definitions consistently include the following elements: (1) a course of conduct, (2) directed at a specific person or persons, (3) causing or tending to cause substantial distress, and (4) having no legitimate purpose. See Snowden v. State , 677 A.2d 33, 36 (Del. 1996) (quoting 11 Del. Code § 1312A(b)(1)); Bouters v. State , 659 So. 2d 235, 236 (Fla. 1995) (quoting Fla. Stat. § 784.048(1)(a)); Johnson v. State , 449 S.E.2d 94, 96 (Ga. 1994) (quoting Ga. Code § 16-5-90); State v. Fonseca , 670 A.2d 1237, 1238 (R.I. 1996) (quoting R.I. Gen. Laws § 11-59-1(2)); see also Luplow v. State , 897 P.2d 463, 465 (Wyo. 1995) (quoting Wyo. Stat. § 6-2-506(a)(ii)) (lacking "no legitimate purpose" element). The cited cases have held that thus defined, "harass" is not impermissibly vague even in a criminal statute, where the Constitution requires more specificity than in a civil regulation such as a disciplinary rule. See Village of Hoffman Estates , 455 U.S. at 498. In order to save Rule 3.06(d)'s "harass" provision from any suggestion of vagueness, we construe it as incorporating the above-stated definition.
Because Benton did not engage in a course of conduct -- that is, repeated communications -- directed at any individual, but merely sent a single letter to each discharged juror, he did not violate the "harass" provision of Rule 3.06(d) as we have interpreted it. We need not decide whether this provision would be unconstitutionally vague as applied to communications that fall within our limiting construction but that occurred before we announced the construction.
We agree with Benton, however, that "embarrass" is fatally vague. Unlike "harass," "embarrass" is a term seldom used and, to our knowledge, never defined in statutory law. Although we have found no authority discussing the constitutionality of the word "embarrass," we believe it is comparable to "annoy." The Supreme Court held in Coates that the word "annoy" was unconstitutionally vague, "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Id. at 611 n.1, 614. Similarly, the problem is not that one cannot understand what "embarrass" means in the abstract, but that one cannot tell with any sort of accuracy what speech will trigger embarrassment in the 'average' listener. Thus, Rule 3.06(d)'s "embarrass" provision runs afoul of the notice aspect of the vagueness doctrine, because "men of common intelligence must necessarily guess" at what speech might embarrass a juror. Id. It likewise implicates the doctrine's concern with arbitrary enforcement, being so "standardless" that the Commission can only look to its own "personal predilections" to determine whether an attorney's speech is embarrassing. Smith , 415 U.S. at 575. Because embarrassment varies so greatly between individuals and is so uniquely difficult to foresee, it is not susceptible to an objective ordinary person test; therefore, Rule 3.06(d)'s requirement of "calculated" conduct does not save this provision from vagueness. Cf. Kramer , 712 F.2d at 178 (holding that even "an intent element does not save ['annoy' or 'alarm'] from vagueness because the conduct which must be motivated by intent, as well as the standard by which that conduct is to be assessed, remain vague").
The phrase "influence [the juror's] actions in future jury service" consists of "terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." Broadrick , 413 U.S. at 608. Prohibitions on attempts to influence another's conduct are common in the law, see, e.g. , Tex. Pen. Code § 32.43; id. § 36.04, and other courts have upheld them against vagueness challenges. See United States v. Pommerening , 500 F.2d 92, 97 (10th Cir. 1974); State v. Torline , 527 P.2d 994, 997 (Kan. 1974). The widespread use of this term in other statutes, although certainly not conclusive on the vagueness question, "is evidence that the term ha[s] a generally accepted meaning, and [is] not constitutionally suspect." CISPES v. Federal Bureau of Investigation , 770 F.2d 468, 476 n.8 (5th Cir. 1985). Rule 3.06(d)'s "influence" provision by its terms deals only with speech calculated to affect the hearer's actions in the limited context of jury service. We are satisfied that both the lawyers subject to the rule and the Commission officials charged with enforcing it can understand what kinds of communications are reasonably likely to influence an ordinary juror's actions in future jury service.
Justice Baker contends in his dissenting opinion that the "influence" clause is vague because there is room for disagreement about whether it applies to certain communications such as thank-you notes. In so arguing, he sets an impossibly high standard of precision which, if generally applied, would render most legislation void for vagueness. "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned , 408 U.S. at 110. Courts and juries are constantly called on to determine whether the facts of a given case fall within the terms of a statute, and often reasonable minds can differ about whether they do. Without doubt, "the imagination can conjure hypothetical cases in which the meaning of these terms will be [a] nice question." CISPES , 770 F.2d at 477 (alteration in original) (quoting American Communications Ass'n v. Douds , 339 U.S. 382, 412 (1950)). But such uncertainties of application are a natural part of the rule of law, whereby society first formulates generally applicable standards of conduct and then decides whether a defendant's specific acts violate those standards. They are not a mark of unconstitutionality.
In addition, Justice Baker points to the Commission's failure to enforce Rule 3.06(d) against a letter written by Benton's opposing counsel as proof of the "influence" provision's vagueness. At the hearing on Benton's punishment, Thomas Clay Hollis, the attorney who represented the defendants in the underlying personal injury suit, testified that he wrote the discharged jurors a letter in which he thanked them for their service and "tr[ied] to encourage future jury service." We do not agree that a letter simply encouraging the performance of civic duty, without regard to how the juror will vote in future cases, is calculated to "influence [a discharged juror's] actions in future jury service" within the meaning of Rule 3.06(d). Even if another attorney had violated the rule without punishment, it is within the Commission's discretion to save its enforcement resources for those violations that, like Benton's, are most likely to have the harmful effects we discussed in Part II such as discouraging jury service and intimidating jurors. Finally, Justice Baker's criticism assumes that if selective enforcement occurred in this case, which we reject, it must have been caused by a defect in the rule. But the correct question for vagueness purposes is whether the statute's language is so unclear that it "encourages," Kolender , 461 U.S. at 361, or is "an obvious invitation to" arbitrary enforcement. Coates , 402 U.S. at 616. Any uncertainty in the phrase "influence [the juror's] actions in future jury service" does not rise to this level.
The unconstitutionality of one part of a statute does not require us to invalidate the entire statute unless the unconstitutional provision is not separable from the remainder. See Harris County Water Control & Improvement Dist. No. 39 v. Albright , 263 S.W.2d 944, 947 (Tex. 1954); Black v. Dallas County Bail Bond Bd. , 882 S.W.2d 434, 437 (Tex. App.--Dallas 1994, no writ). The Disciplinary Rules of Professional Conduct contain a severability clause stating that the invalidation of any part of the rules "shall not affect any other provision . . . of these rules that can be given effect without the invalid provision." Tex. Disc. R. Prof. Cond. 9.01. Rule 3.06(d)'s prohibitions on speech calculated to "harass" or "influence" can be given effect without regard to the "embarrass" provision; the rule "present[s] an independent, complete and workable whole without" the unconstitutional term. Harris County Water Control , 263 S.W.2d at 947. Except for the words "or embarrass," Rule 3.06(d) is constitutional and remains in effect.
VI The final issue before us is how our narrowing construction of "harass" and our holding that "embarrass" is unconstitutionally vague affect the trial court's judgment. When a defendant successfully challenges a law as unconstitutionally vague on its face, "it may not be applied to him . . . , until or unless a satisfactory limiting construction is placed on the statute." Gooding , 405 U.S. at 521 (quoting Coates , 402 U.S. at 620 (White, J., dissenting)). We have limited Rule 3.06(d) so as to render it constitutional by striking the term "embarrass" and narrowing the term "harass." Thus, under Gooding we may apply the corrected rule to Benton. We must first determine, however, whether such an application is consistent with the trial court's findings.
The Commission's disciplinary petition and the findings contained in the trial court's judgment state only that Benton violated Rule 3.06(d), without specifying which of the rule's three provisions was involved. Although there is no evidence that Benton's conduct violated the "harass" provision as we have interpreted it, the trial court's finding that he violated the rule may stand as long as an alternative basis for that finding is supported by the evidence. See Griffin v. United States , 502 U.S. 46, 56 (1991). However, when a defendant is convicted under a law prohibiting several acts in the alternative and one of those prohibitions is held unconstitutional on appeal, the conviction cannot stand if it "may have rested on [the] unconstitutional ground." Bachellar v. Maryland , 397 U.S. 564, 571 (1970). Thus, a reviewing court must examine the record to determine whether there is a possibility that the factfinder based the conviction solely on the invalid rather than the valid portion of the law. See id. at 570 (detailing conflicting testimony about defendants' conduct and concluding that " on this record , we find that petitioners may have been found guilty . . . simply because they advocated unpopular ideas. Since conviction on this ground would violate the Constitution, it is our duty to set aside petitioners' convictions") (emphasis added); Stromberg v. California , 283 U.S. 359, 368 (1931) (noting that prosecutor urged jury to convict based solely on the provision that was held unconstitutional and reversing conviction because "it cannot be determined upon this record that the appellant was not convicted under [the unconstitutional] clause") (emphasis added).
This is not a case in which "[i]t is impossible to say . . . that [the constitutionally valid provision] was the basis for the verdict." Bachellar , 397 U.S. at 571. Despite the absence of specific findings in the judgment, the record shows unambiguously that the trial court found that Benton violated Rule 3.06(d)'s "influence" clause. At the summary judgment hearing, the following discussion took place:
COMMISSION'S COUNSEL: [I]t's my understanding that the Court is releasing
the jury with the understanding that Mr. Benton stipulates he did indeed violated [
Rule 3.06(d) and, therefore, there is no fundamental issue that needs to be determined
by the jury. Is that correct?
THE COURT: Is that correct?
BENTON: Yes, that's correct.
BENTON'S COUNSEL: He has made that known in his affidavit and summary
judgment, Your Honor. That's no problem.
THE COURT: I took it as a judicial admission in the pleadings that were on file. So
there will be no necessity for a jury determination.
Benton's pleadings admit only that he violated the "influence" provision. As the excerpt from the hearing shows, the trial court accepted this admission and dismissed the jury, expressly announcing that no factual determination would be needed. Therefore, the trial court cannot have based its finding that Benton violated Rule 3.06(d) on either the "harass" or the "embarrass" provision, because that would have required resolution of a disputed fact issue. On this record, the trial court's finding that Benton's letter violated the rule may be upheld because there is no possibility that it was based on the unconstitutionally vague term "embarrass."
However, it appears from the record that the trial court may have considered the "harass" and "embarrass" provisions of the rule at the punishment stage of the proceedings. The trial court held a hearing to determine the appropriate sanction for Benton's violation. See Tex. R. Disc. P. 3.10. The record contains the following discussion of the evidence to be presented at that hearing:
BENTON'S COUNSEL: Judge, if I may, if Mr. Benton has admitted to violating the
rule, what relevancy would the jurors have as to punishment, their testimony? . . .
THE COURT: I think just to show that there was in fact embarrassment and they
considered it harassing. I would assume that's the purpose of it.
The Commission elicited testimony at the punishment hearing that some of the jurors felt "harassed" and "mortified" by Benton's letter. We do not suggest that the trial court should not have considered this testimony, nor that the sanction it imposed was excessive. On the contrary, the jurors' testimony was highly relevant to some of the factors that the court was required to consider in determining Benton's punishment for violating the "influence" clause, such as "[t]he nature and degree of the Professional Misconduct" and "[t]he maintenance of respect for the legal profession." Tex. R. Disc. P. 3.10(A), (I). But since it is possible that the trial court increased the punishment based on the belief that Benton's letter violated all three provisions of Rule 3.06(d) instead of only one, justice demands that we remand this cause to give the parties an opportunity to present argument to the trial court on how, if at all, our holdings today affect the previously imposed punishment.
For the foregoing reasons, we reverse the judgment of the court of appeals and remand this
cause to the trial court for a new hearing on punishment.
Thomas R. Phillips
Opinion delivered: July 14, 1998
Rule 3.06(d) is taken with no substantive change from Model Code of Professional Responsibility DR 7-108(D). Nineteen other states have substantially identical rules. See Alaska R. Prof. Cond. 3.10; Cal. R. Prof. Cond. 5-320(D); Ga. Code Prof. Resp. DR 7-108(D); Haw. R. Prof. Cond. 3.5(e)(4)(i); Ill. R. Prof. Cond. 3.5(d); Iowa Code Prof. Resp. for Lawyers DR 7-108(d); Me. Code Prof. Resp. R. 3.7(f)(2); Md. R. Prof. Cond. 3.5(a)(5); Mass. R. Prof. Cond. 3.5(d); Minn. R. Prof. Cond. 3.5(c); Neb. Code Prof. Resp. DR 7-108(D); N.H. Super. Ct. R. 77-B; N.Y. Code Prof. Resp. DR 7-108(D); N.C. R. Prof. Cond. 3.5(a)(5); Ohio Code Prof. Resp. DR 7-108(D); Or. Code Prof. Resp. DR 7-108(D); Tenn. Code Prof. Resp. DR 7-108(D); Vt. Code Prof. Resp. DR 7-108(D); Va. Code Prof. Resp. DR 7-107(C).
Although some sections of the Chief Justice's opinion commanded the votes of only four members of the Court, Justice O'Connor joined in the sections concerning the First Amendment, making those sections a majority opinion. See Gentile , 501 U.S. at 1081-82 (O'Connor, J., concurring).
We do not mean to suggest that discharged jurors' interest in freedom from insult, standing alone, would be grounds for punishing Benton's speech. The First Amendment does not permit government to ban speech because it is offensive to unwilling listeners unless the speech is intolerably intrusive, for example, if it invades the home or is directed at a captive audience. See Erznoznik v. City of Jacksonville , 422 U.S. 205, 209 (1975). Rule 3.06(d), however, is concerned not with protecting jurors' sensibilities as such, but with protecting the jury system from the harm that is likely to result from inappropriate attorney communications with discharged jurors. Cf. Florida Bar v. Went for It, Inc. , 515 U.S. 618, 631 (1995) ("The Bar is concerned not with citizens' 'offense' in the abstract, . . . but with the demonstrable detrimental effects that such 'offense' has on the profession it regulates.").
After our decisions in Davenport and Tucci , the United States Supreme Court clarified the First Amendment standard for reviewing injunctions against speech. See Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753 (1994). The level of protection for speech afforded by the Madsen standard is roughly equivalent to the tests we had articulated in those cases. See Operation Rescue , __ S.W.2d at __.
See Cal. R. Prof. Cond. 5-320(D); Me. Code Prof. Resp. R. 3.7(f)(2); Mass. R. Prof. Cond. 3.5(d).
In the case of some, but not all, of these statutes, this difference in the standard of review is negated by the fact that the statute regulates conduct rather than speech. Compare Snowden , 677 A.2d at 36 n.1 (describing stalking statute as "not affecting First Amendment rights"), with Luplow , 897 P.2d at 468 (describing stalking statute as permissible content-neutral restriction on speech). See generally Smith , 415 U.S. at 573 (stating that statutes capable of reaching protected speech are reviewed more strictly for vagueness than other statutes).
This testimony appears in a bill of exception made by the Commission. The trial court sustained Benton's objection to Hollis as a witness on the ground that the parties and the court had agreed not to go into the facts of the underlying personal injury suit. The Commission did not challenge the exclusion of Hollis's testimony on appeal. Nevertheless, since the parties' briefs, the court of appeals, and Justices Gonzalez and Baker have all addressed Hollis's testimony, we will consider it as well.
Indeed, the American Law Institute's forthcoming Restatement takes just this form, barring post-verdict communications "that would harass the juror or constitute an attempt to influence the juror's actions as a juror in future cases," but making no reference to "embarrassment." Restatement of the Law Governing Lawyers § 175(3)(a) (Tentative Draft No. 8, 1997) (emphasis added).
Benton's motion for summary judgment states: "Respondent has admitted that he violated Texas Disciplinary Rules of Professional Conduct 3.06(d) in that he communicated with members of the jury by letter to influence their actions in future jury service ." (emphasis added). Benton's affidavit, filed as an attachment to the motion for summary judgment, states that "[t]he thrust of my letter of February 20, 1992, was not to 'merely harass' the jurors, but indeed to influence them in future jury service ." (emphasis added). His summary judgment brief states: "[The Commission] correctly claimed that [Benton] violated Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct by sending the jurors a letter which was 'calculated . . . to influence [their] actions in future jury service.' " (omission in original) (emphasis added).