Hirschkop v. Snead

594 F.2d 356, 4 Media L. Rep. (BNA) 2599

Opinions

PER CURIAM:

Footnotes

•

*

This case presents the question of whether rule 7-107 of the Virginia Code of Pro fessional Responsibility¹ which restricts lawyers’ comments about pending litigation violates the right of freedom of speech secured by the first and fourteenth amendments.² The district court issued a declaratory judgment upholding the constitutionality of the rule.³ We affirm in part and reverse in part.

Upon petition of the Virginia State Bar, the Supreme Court of Virginia promulgated rule 7-107 pursuant to authority conferred by Virginia Code § 54-48 (1974). The rule reflects long-standing concern that prejudicial publicity threatens the fairness of trials. Canon 20 of the American Bar Association’s Canons of Professional Ethics, the predecessor of the rule, indicated generally that published statements by a lawyer during the course of litigation may interfere with a fair trial and are usually to be condemned. In 1964 the American Bar Association, responding in part to the events following the assassination of President Kennedy, appointed an advisory committee on fair trial and free press whose final report contained the prototype of those parts of rule 7-107 pertaining to criminal trials. See ABA Standards Relating to Fair Trial and Free Press (1968). A committee of the Judicial Conference of the United States also issued a report, recommending that district courts adopt local rules based largely on the Bar Association’s standards. See Report of the Committee on the Operation of the Jury System on the “Free Press — Fair Trial” Issue, 45 F.R.D. 391 (1968). Subsequently, the Bar’s standards were adopted in Virginia and in other states, and they were incorporated into the local rules of many federal courts.

Much of the litigation about restrictions on the publication of news about trials has involved specific gag orders and not rule 7-107. See, e. g., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Central South Carolina Chapter, Society of Professional Journalists v. Martin, 556 F.2d 706 (4th Cir. 1977); In re: Oliver, 452 F.2d 111 (7th Cir. 1971); see generally, Symposium, National Press Association v. Stuart, 29 Stanford L.Rev. 383-626 (1977). The constitutionality of rule 7-107 apparently has been considered by only one appellate court. That court found the rule to be constitutionally infirm primarily because of its failure to restrict the ban on lawyers’ comments, to those instances where they posed a serious and imminent threat to a fair trial. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir. 1975). We disagree. The more appropriate standard is that the publication present a reasonable likelihood that it will be prejudicial to the fair administration of justice.

I.

At the outset, we consider whether Philip J. Hirschkop, an attorney licensed to practice in Virginia, has standing to maintain this action even though no complaints charging violations of rule 7-107 are pending against him.

All attorneys in Virginia must belong to the Virginia State Bar which processes complaints about violations of the rule. Virginia Code § 54-49 (1974). Hirschkop brought this action, alleging that the rule is unconstitutional on its face and as applied to him. Eleven of the 22 complaints filed with the Virginia State Bar from 1965 to 1975 charging violations of the rule cited Hirschkop, who has been active in many civil rights and civil liberties cases. One complaint was filed after he did no more than tell the press that he was representing an indicted prison official because the official was “a good guy.”

Eventually, Hirschkop and the Virginia State Bar reached a settlement in which the executive committee of the Bar admitted that the complaints against Hirschkop were meritless and had been filed in cases where “the complainants may have disagreed with the causes supported and espoused” by Hirschkop. In return, Hirschkop consented to dismissal of his claims against the State Bar, its officers, and employees. The agreement, however, did not deal with the rule’s constitutionality, and it expressly provided that Hirschkop would not be immune from appropriate disciplinary action in the future should he violate the rule. Consequently, the only issue presented in this appeal is the facial constitutionality of rule 7-107.⁴

The Supreme Court has consistently relaxed normal standing requirements in first amendment cases. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); N.A.A.C.P. v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The Court justified this exception to the general rule of standing by explaining in Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916:

Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

This policy is particularly strong when, as here, only speech and not conduct is at issue. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908.

Hirschkop is subject to discipline, including disbarment, for comments violating rule 7-107. We conclude that he has standing to challenge the rule because the threat of disciplinary action may deter him and other Virginia attorneys from making constitutionally protected statements.

II.

Hirschkop suggests that the first amendment precludes any rule limiting speech by lawyers. He contends that fair trials can be obtained even when prejudicial publicity is imminent by carefully drawn orders confining restrictions on speech to the peculiar circumstances confronting the trial judge.

Hirschkop’s rejection of every rule regulating lawyers’ comments will not withstand constitutional analysis. The first amendment’s right of freedom of speech is not absolute, and courts must consider the “special characteristics of the . . . environment” in which the speech is uttered. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Drawing on many prior decisions, Mr. Justice Powell formulated a two-step test in Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), for determining the constitutionality of governmental restrictions on speech:

First, the regulation ... in question must further an important or substantial governmental interest unrelated to the suppression of expression. . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

There can be little question whether rule 7-107 satisfies the first part of the test prescribed by Martinez. State and federal courts have a substantial interest in assuring every person the right to a fair trial, a right which the Supreme Court has described as “the most fundamental of all freedoms.” Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965). Experience shows that this right can be impaired by lawyers’ unrestrained, prejudi cial comment pending trial. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); ABA, Standards Relating to Fair Trial and Free Press (1968); Report of the Committee on the Operation of the Jury System on the “Free Press — -Fair Trial” Issue, 45 F.R.D. 391 (1968). Consequently, we conclude that the rule furthers a “substantial governmental interest unrelated to the suppression of expression.”

The second part of the Martinez test is designed to determine whether the restrictions on speech are “unnecessarily broad.” 416 U.S. at 413-14, 94 S.Ct. 1800. In the context of this case, Martinez prohibits the imposition of all such restrictions that are not essential to the preservation of a fair trial. Application of this part of the Martinez test requires an examination of both the scope of the rule and the nature of its restrictions. Consideration of the rule’s scope is necessary because it applies to criminal, civil, and administrative proceedings. Inquiry about its restrictions is essential because the parties differ on the appropriate constitutional standard for determining what comments should be barred. Therefore, we will apply the second part of the Martinez test to each type of proceeding to which the rule refers.

III.

Criminal Jury Trials

The committee of both the American Bar Association and the Judicial Conference of the United States emphasize that prejudice from lawyers’ unrestrained comments is most likely to occur in criminal cases which are heard by a jury. See ABA, Standards Relating to Fair Trial and Free Press 22 (1968); Report of the Committee on the Operation of the Jury System, “Free Press-Fair Trial Issue”, 45 F.R.D. 391, 392 (1968). Addressing the problem in Nebraska Press Association v. Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 2799, 49 L.Ed.2d 683 (1976), the Chief Justice noted:

In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right. But when the case is a “sensational” one tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment.

Of course, even widespread publicity does not taint every sensational trial. See, e e. g., Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Wansley v. Slayton, 487 F.2d 90 (4th Cir. 1973). The passage of time or other circumstances may dissipate the harm. Nevertheless, the danger to fair trials is illustrated by several decisions of the Supreme Court reversing convictions because of prejudicial publicity stemming in part from lawyers’ comments. See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

The Honorable Bernard S. Meyer, a member of the American Bar Association’s Advisory Committee on Fair Trial and Free Press which drafted the ABA standards, was the principal expert witness supporting the rule in this case. His testimony, based largely on the committee’s commentary about the standards, discloses that with respect to criminal cases, the danger of prejudicial publicity creates a substantial threat to fair jury trials. Judge Meyer also explained that the American Bar Association committee relied heavily on Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), where the Court emphasized the importance of rules and regulations in assuring fair trials:

The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, [nor] counsel for defense . . . should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.

The threat of prejudicial publicity is particularly acute in sensational cases when the press reports information gleaned from lawyers about confessions, incriminating evidence, and the accused’s background. Moreover, since this information is likely to be uncovered during the investigatory stages of the proceedings before the charges come to the attention of the trial judge, it is difficult for a court to protect the accused by entering orders restricting comments on an ad hoc basis.

Since less intrusive means of assuring the fundamental right to a fair trial are inadequate, we conclude that a properly drawn rule restricting lawyers’ comments about pending criminal prosecutions can be justified by the need to protect the right to a fair jury trial. Consequently, we next examine rule 7-107 to determine whether it otherwise conforms with constitutional standards governing the restriction of speech.

Read without embellishment, rule 7-107 prohibits lawyers from commenting on certain subjects during the pendency of criminal proceedings. Apparently the ABA Standards, which are the prototype of the rule, were designed to ban such comment absolutely. See Hirschkop v. Virginia State Bar, 421 F.Supp. 1137, 1154-56 (E.D.Va. 1976). Counsel for the appellees urge, however, that the rule should be read with a gloss that prohibits only those comments which are reasonably likely to interfere with the administration of justice. Hirschkop argues that a properly drawn rule can bar only those comments that present a clear and present danger to a fair trial.

Before the specific recommendations of the Reardon Committee of the American Bar Association and of the Judicial Conference of the United States were formulated and adopted, there were some restrictions upon comments for publication by lawyers and others respecting pending litigation. Old Canon 20 of the Code of Professional Responsibilities⁵ addressed the subject insofar as lawyers were concerned. Everyone may have been subject to a contempt citation for speech amounting to an obstruction of justice in state courts.⁶ The trouble was that the standards were so general and vague that they were exceedingly difficult to apply and did little to forewarn speakers for publication about what was proscribed and what was permitted. Not unnaturally the Supreme Court in Bridges v. California held that publications could not be held contemptuous of the court unless they posed a clear and present danger or a serious and imminent threat to the administration of justice. To some today, it may seem surprising that Chief Justice Stone and Justices Roberts, Frankfurter, and Byrnes thought that a reasonable likelihood of interference with the fairness and impartiality of judicial proceedings would suffice, but as long as the standards were so general and unspecific, and in the presence of First Amendment rights, punishment should be meted out only to the most flagrant offenders.

These rules, with their stringent tests for culpability necessitated by the First Amendment, were inadequate to protect judicial processes from the kind of extraneous influences which impaired their fairness or objectivity or created the appearance of such unfairness. The extensive press reports which deprived the trial of Dr. Sheppard of fairness to such an extent that his conviction was held to be in violation of his due process rights ⁷ is but illustrative. The seriousness of the problem, however, led the Supreme Court to include the passage, quoted earlier, that “courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interference.” The Court then focused upon the performance of the lawyers in the litigation. Neither a prosecutor nor counsel for the defense nor others within the court’s jurisdiction “should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”

The Reardon Committee of the American Bar Association picked up the Supreme Court’s suggestion⁸ and undertook to impose restraints upon statements for publication by lawyers engaged in the preparation for trial and trials of criminal cases.⁹ The report of that Committee, after its approval by the American Bar Association and now widely adopted by the states, contains no restraints upon the press. The press may publish any information in its possession as far as these rules are concerned, but the lawyers are directed to try their cases in the court and not in the press. This is a desideratum often repeated,¹⁰ and, generally, it is essential to fairness in the conduct of criminal trials and the protection of rights of due process.

Lawyers are officers of the court, subject to reprimand and the imposition of other disciplinary sanctions for the violations of rules to which non-lawyers are not subject. The lawyer is under a high fiduciary duty to fairly represent his client, but he owes substantial duties to the court and to the public as well. If blind loyalty to his client demands that the lawyer knowingly misrepresent facts, his duty to the court and the public requires that he not. The lawyer, as well as the judge, has the duty to the court, to the litigants in the particular case, to litigants in general and to the public to protect the judicial processes from those extraneous influences which impair its fairness. In Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965), the Supreme Court .referred to the right to a fair trial as “the most fundamental of all freedoms.” As an officer of the court, it is a lawyer’s duty to protect and preserve that right, and he is censurable, as the Supreme Court said in Sheppard v. Maxwell, when he acts to frustrate that right.

Lawyers have First Amendment rights of free speech. They are not second class citizens. They are first class citizens with many privileges not enjoyed by other citizens. With privilege, however, goes responsibility, and codes of professional responsibility have traditionally recognized that a lawyer is subject to special disciplinary sanctions when he neglects his responsibility to his clients and to the public. He is equally subject to disciplinary sanctions when he violates his responsibilities to courts, to other litigants and to the public when he invokes extraneous influences to deprive judicial processes of fairness.

Thus, the Reardon Committee picked up the Supreme Court’s suggestion or direction and focused its attention upon the conduct of lawyers. Instead of the vague and generalized rules of the past, a rule was formulated which, when adopted by the Supreme Court of a state, would amount to a legislative finding that speech for publication about enumerated things by a lawyer engaged in pending or contemplated litigation was so inherently prejudicial that it may be proscribed. Release by a prosecutor to the press of the prior criminal record of a person charged with a crime is illustrative. At the time of release, the prosecutor may not know whether at the time - of trial the defendant will wish to remain silent, will not put his credibility in issue and thus have the right that the jury not be informed of his prior record, but he knows that if the defendant at trial does choose not to put his credibility in issue, the jury may not be informed of the prior record. It is the kind of release by a prosecutor that is so inherently prejudicial to the defendant that it ought to be subject to sanctions. This is so, even though the prejudice itself may be wholly or partially avoidable. Transfers of venue, long postponements of trial and the submission of a large array of jurors to searching and extensive voir dire examinations are tools that have been employed in earnest attempts to avoid such prejudice, but the prosecutor is censurable for creating the necessity for the employment of such tools. And use of the tools themselves may impinge upon other substantial rights of a defendant, such as the right to a speedy trial. Moreover, though the court may later conclude that the means employed has so succeeded in avoiding the effects of the prejudice that the defendant may be put to trial without violation of his right to due process, the defendant may be left with such doubt of the impartiality of the jury that he may feel compelled to waive his right to trial by jury.¹¹ No matter the eventuality, the fairness and integrity of the judicial process has been affected by the speech for publication, and the lawyer ought to be censurable for his highly irresponsible conduct.

So much may also be said for the other proscriptions of Rule 7-107(B). The release of the contents of a written confession, for instance, is equally reprehensible, for the prosecutor who releases the contents of such a confession for publication cannot know, until the court rules upon it, whether or not the confession will ever be admitted in evidence and its contents made known to a jury. If the integrity of the judicial process is to be maintained, the results of lie detector and other tests must be protected until the court has had an opportunity to rule upon their admissibility.

One may strain to imagine technical violations of these rules which ought not to result in the imposition of sanctions, or even in charges, but they are not easy, and they would be extraordinary. If James Earle Ray should again escape from prison in Tennessee and be recaptured, it may be that no substantial right of his would be adversely affected if the prosecutor announced that he had been serving a sentence for the murder of Martin Luther King. Ray is so widely known as the convicted murderer of King that republication' of the fact would be new information to few people. Even if the prosecutor did not inform the press that Ray was serving a sentence for the murder of King, the press would know it and would report the fact of his earlier conviction when it reported his escape and recapture. At the very best, the state at the time of trial would be entitled to prove that he had escaped from a penal institution in which felons were confined. There are few defenses to such charges of escape; a jury trial court be unlikely,¹² and when a jury, at best, would be informed that he had a record as a felon, specification of the offense might have little potential prejudicial effect.

If we may imagine situations which would be technical violations of the rules, though innocuous, they are adequately handled by the requirement of a reasonable likelihood that the speech for publication will be prejudicial to a fair trial. The express prohibitions of the rule are not explicitly qualified. Seemingly, the drafters concluded that the potential for prejudice was so inherent and so great in the prohibited speech for publication situations that no qualification was necessary. Since, how ever, one may imagine some situations which ought not to result in the filing of charges, some qualification is necessary. It is obvious from a reading of the entire rule that the drafters were concerned with speech for publication which had a reasonable likelihood of interference with a fair trial. It does not strain the language of the rule to treat that qualification as implicit in each of the expressed prohibitions. It is made particularly easy in this instance because we are assured that the Supreme Court of Virginia so construes the rule.

If some qualification of expressed prohibitions is necessary, however, we find no basis for a conclusion that the Constitution of the United States requires a tighter standard than that implicit in the rules themselves. The only reason for any qualification at all is to take care of the unusual case in which, because of extraordinary circumstances, there is no likelihood of a prejudicial effect. It is simply wrong for a prosecutor, in a sensational murder case, to announce to the public through the press that he has obtained a full confession from one charged with the crime. It would gravely threaten the integrity of the subsequent proceedings if the confession is suppressible and held to be inadmissible in evidence against the defendant. Because of that possibility, the reasonable likelihood test is met, but there is present only a potential for prejudice which may not eventuate if the defendant decides not to contest the admissibility of his confession or, having contested it, the court rules against him. Thus, we are not certain that any clear and present danger or serious and immediate harm test would be met, and we see no reason for injecting into the rules the uncertainties which the imposition of one or both of those standards would occasion. The prosecutor who publicizes the fact of such a confession knows the publication threatens the integrity of the court’s processes. He knows that it is wrong for him to do it, and the court should have the power to prohibit his doing it without extended controversy over the immediacy and gravity of the threatened harm in the particular case.

Indeed, that is one of the virtues of the rules. They tell the lawyers what they may publicize as well as what they may not. With the reasonable likelihood of interference qualification, the rules seem to be as definite as any set of rules may be. The clarity of their guidance to lawyers is marked. But the injection of any other standard would make the prohibition, which is now clear and definite, to some extent unclear and gray.¹³ The reason for the injection of any qualification at all does not require that result as a matter of constitutional doctrine.

Our concern, of course, is with speech and the First Amendment guaranty of its freedom, but the guaranty is not unqualified.

This is not a prior restraint situation. In the generally accepted sense, a prior restraint is one imposed by a judicial decree, a violation of which is summarily punishable as a contempt. There is no such prejudgment in any such sense in these rules. They inhibit speech within the clearly defined prohibitions, but such inhibitions inhere in every situation within the exceptions to the constitutional guaranty of freedom of speech. Such inhibitions inhere in our laws against defamation and in the principle that one may' not falsely shout “fire” in a crowded theatre. Here sanctions may be imposed upon a lawyer only after charges have been filed against him, he has been given a due process hearing and has been found guilty. Perhaps the inhibition is greater here than in some circumstances because of the relative definitiveness of the prohibitions of these rules, but their clarity in that respect avoids problems of vagueness. That ought not to provoke the imposition of a constitutional standard devised for and applicable to judicial prejudgments.

The clear and present danger test, of course, is appropriate in other situations than judicially imposed prior restraints. Mr. Justice Holmes and Mr. Justice Brandéis were of the opinion that such a test was a constitutional requisite in a prosecution under California’s Criminal Syndicalism Statute.¹⁴ They were properly concerned that a substantial distinction be drawn between the theoretical teaching of the virtues of proletarian revolution contemplated for the far distant future and conspiracies and associations for the accomplishment of immediate criminal activity. They concurred in the judgment affirming the conviction, however, because of the presence of evidence that an object of the conspiracy was the commission of present serious crimes and that the conspiracy would be furthered by the activity of the society to which the defendant belonged. Earlier it had been held that such a test was appropriate in a prosecution under the Federal Espionage Act of 1917 of the secretary of the Socialist Party who was circularizing men called for military service for the purpose of influencing them to obstruct the draft.¹⁵ The test was held to have been met there. Finally, such a test has been held appropriate when a court attempts to punish a speaker under the court’s general contempt power.¹⁶ With the exception of Bridges’ telegram to the Secretary of Labor, those cases involved editorials and articles in newspapers critical of the court. In Pennekamp v. Florida and Craig v. Harney the criticism was of past conduct and rulings by the court; an area in which the press enjoys a large, if not a full, measure of freedom. In Bridges the publications do relate to judicial proceedings not yet ended, but such things as the rather mild expression of the opinion of the editor that the criminal defendants should not be granted probation and that the community needed the example of their confinement as felons should not result in the summary imposition of penal sanctions unless some exacting standard is met. The freedom of the press to report judicial proceedings and to criticize a judge when what the judge does seems wrong to the press ought to be uncurbed, and expressions of opinion about what it should do when the judge has not yet acted ought not to be regarded as a contemptuous interference with judicial proceedings when there is no clear and present threat to the integrity of the judicial processes.

In those cases, the contempt power of the court had been invoked and punishment imposed on the basis of vague and general standards. Because of their generality and vagueness, members of the press should not be punished unless their offense be flagrant and done under such circumstances that they should have realized that they were threatening the integrity of the judicial process. Our situation here is wholly incomparable, for we deal only with speech for publication by lawyers and with rules which are quite explicit in informing them what they may and may not say for publication. No heavier or stiffer standard than the reasonable likelihood test is needed to protect them from disciplinary sanctions for speech for publication without adequate notice of the consequences.

In Sheppard v. Maxwell the Supreme Court stated that “where there is a reasonable likelihood the prejudicial news” would prevent a fair trial, the judge should take remedial action or grant a new trial. The statement was made with respect to the action the court should take to retrieve the situation after the harm is done, but the Court, in Sheppard v. Maxwell, also stated that the court must adopt rules and regula tions which avoid the harm in the first place. If remedial action is required on the basis of a reasonable likelihood test, and it is, the rules for the avoidance of the harm must be considered under the same test. Implicitly if not explicitly, the Supreme Court must have approved the reasonable likelihood standard for the application of the preventive rules. The rules would be meaningless if sanctions could be imposed only when the lawyer’s published speech creates unremediable prejudice. They have meaning and appropriateness when so applied as to prevent the lawyer’s creation of a reasonable likelihood for prejudice by a violation of one of the expressed prohibitions. We know of no good reason why the court may not forbid the lawyer from intentionally creating grave due process problems, and we are unaware of any constitutional requirement that forbids the court from protecting the integrity of its processes to that extent.

Rules governing the conduct of lawyers cannot provide a complete answer to the problem of pre-trial publicity with adverse impact upon the judicial process. Police officers may speak, and sometimes do, though one gets the impression that their exercise of restraint is on the increase. Members of the press may have other sources of information. But if police officers may create problems requiring extraordinary measures to avoid prejudice, that fact supplies no reason for thinking that lawyers may do it. Lav/yers are officers of the court and, as discussed above, they have very special responsibilities for lending support to maintenance of the integrity of the judicial system. The mores of the marketplace are not the measures for the conduct of lawyers and judges, and lawyers may be held to higher standards than policemen.

Some concern has been expressed that the rule may preclude a lawyer for a defendant from stating for publication that in his opinion the statute under which the defendant is charged is unconstitutional and that he plans to defend on that ground. We do not so read the rule. Rule 7-107(C)(11) specifically says that a defense lawyer may state for publication that his client denies the charges. This would seem to include denials on legal, as well as, factual grounds. Moreover, the whole thrust of the rule is to protect the integrity of the factfinding process. The specific prohibitions are strictly directed to that end, and none of them seem capable of a construction which would preclude lawyers from publicly discussing the constitutionality or the fairness of the statute upon which pending criminal charges were founded.

As noted at the end of the introductory section, a majority of a panel of the Seventh Circuit came to a different conclusion. Chicago Council of Lawyers v. Bauer, 522 F.2d 242. There, under consideration was a district court rule which was construed by the panel to foreclose such things as a statement by the defense lawyer questioning the constitutionality of the statute under which his client was charged.¹⁷ We find no such restraint in Virginia’s rule. To the extent that it was held in Bauer, however, that the reasonable likelihood test is constitutionally impermissible in a rule such as Virginia’s we simply disagree. For the reasons we have given, the reasonable likelihood test divides the innocuous from the culpable, adds clarity to the rule and makes it more definite in application. We find no requirement in the Constitution of anything else.

IV.

Hirschkop also charges that certain provisions of Rule 7-107 are unconstitutional because of vagueness.

Vague rules offend the due process clause because they deny a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” A vague disciplinary rule also “impermissibly delegates ba sic policy matters to [officials charged with it enforcement] for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). Vague rules that restrict expression also offend the first amendment because they chill freedom of speech. Their uncertain meanings require those persons who are subject to the rule to “ ‘steer far wider of the unlawful zone,’ . than if the boundaries of the forbidden areas . were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964).

Rule 7-107(D) prohibits a lawyer participating in a criminal trial from making any statements about “other matters that are reasonably likely to interfere with a fair trial.” ¹⁸ This proscription is so imprecise that it can be a trap for the unwary. It fosters discipline on a subjective basis depending entirely on what statements the disciplinary authority believes reasonably endangers a fair trial. Thus neither the speaker nor the disciplinarian is instructed where to draw the line between what is permissible and what is forbidden. Cf. Winters v. People of the State of New York, 333 U.S. 507, 519, 68 S.Ct. 665, 92 L.Ed. 840 (1948). This provision of the rule resembles the ban on reporting facts “ ‘strongly implicative’ of the accused” which the Supreme Court held to be “too vague and too broad to survive the scrutiny we have given to restraints on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539, 545, 568, 96 S.Ct. 2791, 2807, 49 L.Ed.2d 683 (1976); accord, Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 255-56 (7th Cir. 1975).

V.

Bench Trials

Rule 7--107 also prohibits lawyers’ comments about pending criminal bench triais. The considerations that led us to conclude that a properly drawn rule could constitutionally limit comments about pending criminal jury trials do not apply to cases tried by a court without a jury. Application of such a rule would be appropriate during the investigation, grand jury, arraignment, and other pretrial proceedings. But when it becomes apparent that the case is to be tried by a judge alone, we see no compelling reason for restricting lawyers’ comments in order to assure a fair trial. Pretrial publicity has not been shown to be a source of interference to fair bench trials. Cases which have been reversed because of such publicity have invariably been tried by juries. See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Judges necessarily must consider evidence that has no direct bearing on the guilt or innocence of the accused. They must determine whether to suppress confessions and other evidence. When this evidence is excluded, they must nevertheless adjudge the accused to be guilty or innocent without considering the evidence which they have heard and held, to be inadmissible. This record does not disclose what comments a lawyer could make about a pending case that would be more prejudicial than the information a judge must consider as he separates the wheat from the chaff during the course of an ordinary bench trial.

It is unlikely that lawyers’ comments could threaten the fairness of a bench trial, and this record does not indicate that they have. Moreover, we cannot assume that such comments would influence a judge to make unfair rulings against either the accused or the state. The suggestion that such an inference could be drawn from publicity highly critical of a judge was rejected in Pennekamp v. Florida, 328 U.S. 331, 349, 66 S.Ct. 1029, 1038, 90 L.Ed. 1295 (1946), where the Court said: “In this case too many fine-drawn assumptions against the independence of judicial action must be made to call such a possibility a clear and present danger to justice.”

Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) does not require a different conclusion. In Cox the Court sustained the validity of a statute that punished picketing or parading in or near a courthouse “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge . . . .” In reaching its conclusion, the Court emphasized that it was not dealing with free speech alone but with “expression mixed with particular conduct” — picketing and parading. In contrast to the statute under consideration in Cox, Rule 7-107 prohibits pure speech alone. Consequently, Cox is not persuasive authority for applying this rule to bench trials.

It is not enough that the rule is rationally related to fair bench trials. The gain in such trials must outweigh the loss of first amendment rights. See Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Here the evidence discloses that the gain to fair bench trials is minimal, and the restriction on first amendment rights is substantial. We therefore conclude that with respect to bench trials the rule is unnecessarily broad. Since it does not satisfy the second part of the test prescribed by Martinez, 416 U.S. at 413, 94 S.Ct. 1800, its inclusion of bench trials is unconstitutional. But see Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 256-57 (7th Cir. 1975).

VI.

Sentencing

Rule 7-107(E) prohibits statements that are “reasonably likely to affect the imposition of sentence.” In Virginia, when a case is tried by a jury, it is the jury’s function to determine not only guilt or innocence but also to impose the sentence. Virginia Code § 19.2-295 (1975). When this procedure is followed, our ruling is Part III about criminal jury trials in general is applicable.

When a judge, instead of a jury, imposes sentence, the limitations upon a lawyer’s comments are unconstitutional for the reasons that we expressed in Part V dealing with bench trials in general. Indeed, when a judge sentences a prisoner he “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). See also Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In view of this broad discretion granted to a sentencing judge, we see no compelling reason for a rule that prohibits lawyers from commenting about all cases pending sentencing. The rule does not satisfy the second part of the Martinez test, 416 U.S. at 413, 94 S.Ct. 1800. Cf. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 257 (7th Cir. 1975).

Additionally, the broad proscription of statements that are “reasonably likely to affect the imposition of sentence” is void for vagueness for the reasons stated in Part IV at note 18.

VII.

Disciplinary Proceedings

Rule 7-107(F) applies its prohibitions to professional and juvenile disciplinary proceedings. Since professional disciplinary proceedings are not usually tried by juries, we conclude that this provision of the rule is unnecessarily broad for the reasons stated in Part V dealing with bench trials.

When a juvenile may be tried by a jury, our observations about the constitutionality of the rule expressed in Part III are applicable. However, when it becomes apparent that the juvenile is to be tried by a judge, we find no justification for limiting lawyers’ comments to insure fairness of the trial for the reasons that we expressed about bench trials in Part V.

Parenthetically, we note that Rule 7-107(F) was drafted only to insure the fairness of these proceedings. Other interests of privacy and confidentiality are the subject of different regulations which are not presently before us. See Virginia Code § 16.1-229, et seq. (1975) (juvenile proceedings); Va. Supreme Court Rules, Part VI, Art. IV, R 13J(5), 216 Va. 941, 1159 (1976) (professional disciplinary proceedings).

VIII.

Civil Actions

Rule 7-107(G) prohibits a lawyer associated with a civil action from making a broad range of comments during the investigation or litigation of the case. We find this part of the rule to be unconstitutional because it is overbroad.

Our system of justice properly requires that civil litigants be assured the right to a fair trial. “The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.” Cox v. Louisiana, 379 U.S. 559, 583, 85 S.Ct. 476, 471, 13 L.Ed.2d 487 (1965) (Black, J., dissenting). Nevertheless, many significant differences between criminal jury trials and civil cases must be considered in evaluating the constitutionality of a general rule limiting lawyers’ speech concerning civil cases. Civil litigation is often more protracted than criminal prosecution because of broader civil discovery rules, the complexity of many civil controversies, and the priority given criminal cases. Thus, it is not unlikely that the rule could prohibit comment over a period of several years from the time investigation begins until the appellate proceedings are completed.

Civil actions may also involve questions of public concern such as the safety of a particular stretch of highway, the need of the government to exercise its power of eminent domain, or the means of racially integrating schools and colleges. The lawyers involved in such cases can often enlighten public debate. It is no answer to say that the comments can be made after the case is concluded, for it is well established that the first amendment protects not only the content of speech but also its timeliness. Bridges v. California, 314 U.S. 252, 268, 62 S.Ct. 190, 86 L.Ed. 192 (1941).

The American Bar Association committee and the Judicial Conference of the United States did not make recommendations concerning civil actions, and this record contains no empirical data that restrictions on lawyers’ speech are needed to protect the fairness of civil trials. Sheppard and the other prejudicial publicity cases involved criminal proceedings. No decision reversing the judgment in a civil action because of prejudicial publicity has been called to our attention; indeed, the principal case imposing a gag on lawyers during a civil trial was reversed because the order infringed the first amendment. CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975). Means narrower than Rule 7-107 are available to assure confidentiality in proper cases. Orders protecting trade secrets, other confidential information, and the privacy of individuals are not unusual.

The dearth of evidence that lawyers’ comments taint civil trials and the courts’ ability to protect confidential information establish that the rule’s restrictions on freedom of speech are not essential to fair civil trials. We therefore conclude that this provision of the rule is invalid because it is overbroad. Martinez, 416 U.S. at 413, 94 S.Ct. 1800 (1974). Accord, Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 257-59 (7th Cir. 1975).

We also conclude that 7-107(G)(5) prohibiting statements about “[a]ny other matter reasonably likely to interfere with the fair trial of the action” is void for vagueness for the reasons stated in Part IV at note 17. Accord, Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 259 (7th Cir. 1975).

IX.

Administrative Agencies

Rule 7-107(H) limits lawyers’ speech concerning matters pending before administrative agencies. Again the record is devoid of any factual basis supporting the need for this provision. Like civil litigation, administrative proceedings often involve subjects of public concern. The record fails to disclose that any administrative decision has been set aside because the comments of lawyers impaired the fairness of the proceedings. The rule, however, would chill discussion by lawyers involved in these public proceedings, for it bars comments about evidence, the results of any examinations or tests, and other matters reasonably likely to interfere with a fair hearing.

The state has not proved that the limitations on first amendment rights found in Rule 7-107 are essential to insure the fairness of administrative hearings. Therefore, we conclude that the part of the rule dealing with administrative hearings fails to satisfy the second part of the Martinez test, 416 U.S. at 413, 94 S.Ct. 1800. It, too, must be declared unconstitutional because it is overbroad. Also, the proscription of 7-107(H)(5) against statements relating to “[a]ny other matter reasonably likely to interfere with a fair hearing” is unconstitutionally vague for the reasons stated in Part IV at note 17.

The judgment of the district court is affirmed in part and reversed in part, and this case is remanded for the entry of a declaratory judgment that Rule 7-107 is not unconstitutional, insofar as it applies to criminal jury trials, but that otherwise it may not be constitutionally enforced.

AFFIRMED IN PART, REVERSED IN PART.

APPENDIX

DR 7-107 Trial Publicity.

(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that does more than state without elaboration:

(1) Information contained in a public record.

(2) That the investigation is in progress.

(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.

(5) A warning to the public of any dangers.

(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.

(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.

(3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement.

(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.

(5) The identity, testimony, or credibility of a prospective witness.

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

(C) DR 7-107(B) does not preclude a lawyer during such period from announcing:

(1) The name, age, residence, occupation, and family status of the accused.

(2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present.

(3) A request for assistance in obtaining evidence.

(4) The identity of the victim of the crime.

(5) The fact, time, and place of arrest, resistance, pursuit, and use of weapons.

(6) The identity of investigating and arresting officers or agencies and the length of the investigation.

(7) At the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement.

(8) The nature, substance, or text of the charge.

(9) Quotations from or references to public records of the court in the case.

(10) The scheduling or result of any step in the judicial proceedings.

(11) That the accused denies the charges made against him.

(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records, of the court in the case.

(E) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence.

(F) The foregoing provisions of DR 7-107 also apply to professional disciplinary proceedings and juvenile disciplinary proceedings when pertinent and consistent with other law applicable to such proceedings.

(G) A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) Evidence regarding the occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such.

(4) His opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule.

(5) Any other matter reasonably likely to interfere with a fair trial of the action.

(H) During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to:

(1) Evidence regarding the occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) Physical evidence or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such.

(4) His opinion as to the merits of the claims, defenses, or positions of an interested person.

(5) Any other matter reasonably likely to interfere with a fair hearing.

(I) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or from participating in the proceedings of legislative, administrative, or other investigative bodies.

(J) A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107.

This case was originally heard before a panel composed of Chief Judge Haynsworth, Judge Winter and Judge Butzner. This opinion is largely extracted from a proposed majority opinion of the panel, prepared by Judge Butzner and a proposed concurring and dissenting opinion, written by Judge Haynsworth. Rehearing en banc was ordered after those opinions had been circulated but before they were filed. Thus, this opinion was written in part by each of two judges.

1

. See Rules of Court. 211 Va. 295, 347-50 (1970). The rule is set forth in the appendix to this opinion.

2

. The first amendment provides in part: “Congress shall make no law . . . abridging the freedom of speech . . . .” It is made applicable to the states by the fourteenth amendment. Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

3

. Hirschkop v. Virginia State Bar, 421 F.Supp. 1137 (E.D.Va.1976).

4

. The Justices of the Supreme Court of Virginia took no part in the settlement and compromise. They were retained as defendants because in their official capacity they had promulgated the rule on petition of the Virginia State Bar.

5

. Canon 20 read: Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the Court; but even in the extreme cases it is better to avoid any ex parte statement.

6

. See Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941).

7

. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

8

. The language of the Court is more nearly directive than suggestive.

9

. For the District Courts of the United States, the Judicial Conference of the United States recommended the adoption of a similar rule. See the report of its Committee on the Operation of the Jury System, of which our late brother Craven was a member. 45 F.R.D. 391, et seq. Another study was made by a Committee of the Association of the Bar of the City of New York chaired by Senior Circuit Judge Medina.

10

. See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 350-52, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irwin v. Dowd, 366 U.S. 717, 729, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (Frankfurter, J. concurring); Chase v. Robson, 435 F.2d 1059, 1060 (7th Cir. 1970).

11

. See Irwin v. Dowd, 366 U.S. 717, 730, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (Frankfurter, J. concurring).

12

. In a jurisdiction in which sentences are fixe'd by juries, a jury trial may be less unlikely.

13

. Is an “immediate harm” worked by a prosecutor’s publication of the fact that a confession has been obtained from one who has a long record of convictions of particularized felonies if later, at the trial, the confession and the criminal record are, both, held to be admissible? The reasonable likelihood test is met by the fact that, at the time of publication, the questions of admissibility are undecided. Whether the present danger and immediate harm tests are met is uncertain. If they are, the present debate may be only a matter of semantics, not a matter of constitutional doctrine.

14

. Whitney v. California, 274 U.S. 357, 374, 47 S.Ct. 641, 71 L.Ed. 1095 (1927).

15

. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

16

. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941).

17

. The Bauer holding has prompted the American Bar Association to promulgate a new proposed standard regulating the conduct of attorneys m criminal cases. ABA Standards Relating to Fair Trial and Free Press. § 8-1.1 (Tentative Draft 1978).

18

. Similar restrictions apply to comments about juvenile, disciplinary, and administrative proceedings, and civil actions. Rule 7--107(F), (G)(5), and (H)(5).