On certification to District VIII Ethics Committee.
The opinion of the Court was delivered by Handler, J. Pashman, J., concurring. Clifford, J., concurring in result. Schreiber, J., dissenting.
This case requires us to determine the constitutional scope of rules disciplining an attorney for making out-of-court statements publicly criticizing the trial judge's conduct of an ongoing criminal trial. Lennox Hinds, the appellant, claims that as a matter of constitutional right under the First Amendment, an attorney cannot be disciplined for making such statements unless they present a "clear and present danger" to the fairness of the judicial proceeding. The primary disciplinary standard sought to be applied in this case, however, requires discipline of an attorney if his extrajudicial statements are "reasonably likely" to interfere with a criminal trial. DR 7-107(D).
We now affirm the constitutionality of the "reasonable likelihood" standard of DR 7-107(D) for restricting attorney extrajudicial speech in the specific setting of a criminal trial. We further hold that the determination of whether a particular statement is likely to interfere with a fair trial involves a careful balancing of factors, including consideration of the status of the attorney, the nature and timing of the statement, as well as the context in which it was uttered. In addition, we hold that DR 7-107(D) applies not only to an attorney of record in a criminal case but also to an attorney who cooperates with the defense on a regular and continuing basis, provides legal assistance in connection with the defense of a criminal charge, and holds himself out to be a member of the defense team.
However, because this opinion represents the first time that we have interpreted the proper scope of DR 7-107(D) and the standard to be followed in applying this disciplinary rule to extrajudicial statements, we deem it appropriate to give our determination prospective effect only. Consequently, we dismiss these charges against Hinds, as well as related charges under DR 1-102(A)(5), which sanctions attorney conduct that is "prejudicial to the administration of justice."
We deal first with the procedural and factual background of the case. Hinds has been a member of the New Jersey Bar since 1973. He has been active and prominent as a lawyer in civil rights causes and has a national reputation for his work as Director of the National Conference of Black Lawyers (hereinafter "NCBL"), a capacity in which he served for five years until 1978. In 1973 Joanne Chesimard, a black woman reputed to be a militant radical, was accused of killing a New Jersey State trooper. Following her arrest, Chesimard was brought to trial after a long series of delays. Hinds represented Chesimard during this pretrial period in several federal civil actions concerning the legality and general conditions of her incarceration by the State. Hinds apparently did not, however, represent Chesimard at her criminal trial.
Chesimard finally went on trial for murder in 1977 in the Superior Court, Law Division, in New Brunswick. After observing the initial phases of the trial and while the jury was still being impaneled, Hinds called a press conference at his New Brunswick office on January 20, 1977. In an article appearing January 21, 1977, in the New York Daily News under the headline, "Joanne Loses 2 Rounds in Trial Transfer," it was reported that:
An article appearing in the Newark Star-Ledger on the same date reported that Hinds had referred to the Chesimard trial as "a travesty." The article further quoted Hinds as saying that the trial judge "does not have the judicial temperament or the racial sensitivity to sit as an impartial judge" in Chesimard's trial, and that "[i]t was only after the trial began that we began to have fears that what we are seeing is a legalized lynching."
Also, a television reporter covering the press conference for the New Jersey Public Broadcasting Authority (Channel 52) recorded the following exchange:
Hinds: "We feel that it is a kangaroo -- it will be a kangaroo court unless the judge recluses [sic] himself and that will be the very minimum.
Reporter: "And a kangaroo court means a guilty verdict?"
The Middlesex County Ethics Committee (now the District VIII Ethics Committee) authorized an investigation to determine whether Hinds' statements constituted a violation of any disciplinary rules. The investigation was stayed until completion of Chesimard's trial. Chesimard was eventually convicted of murder in the first degree and sentenced to a mandatory term of life imprisonment. Thereafter, the disciplinary proceedings were renewed, and as a result of the investigation, it was recommended that Hinds be charged with violating two disciplinary rules: DR 1-102(A)(5), which prohibits attorneys from "[e]ngag[ing] in conduct . . . prejudicial to the administration of justice;" and DR 7-107(D), which provides that
[d]uring the selection of a jury or a 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 extra-judicial statement that he expects 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 . . . .
In December 1977 the Ethics Committee adopted this recommendation and approved the filing of charges against Hinds for
violating these disciplinary rules. On January 3, 1978, Hinds was served with the charges and informed that a hearing would be held. Instead of responding, however, Hinds filed a suit in federal court on February 10, 1978, seeking to enjoin the State disciplinary proceedings and to obtain a judgment declaring these particular disciplinary rules unconstitutional. The State proceedings were then stayed during the early stages of the federal litigation.
The United States District Court eventually denied the injunction and dismissed the complaint on grounds of abstention. Garden State Bar Ass'n v. Middlesex Cty. Ethics Com., No. 78-273 (D.C.N.J. June 6, 1978 and Dec. 13, 1979). On appeal, the Third Circuit reversed, finding the abstention doctrine inapplicable because it felt the State procedure effectively denied Hinds the right to present his constitutional claims in a timely manner before a competent State tribunal. Garden State Bar Ass'n v. Middlesex Cty. Ethics Com., 643 F.2d 119, rehearing den., 651 F.2d 154 (3 Cir. 1981) (en banc).
This Court, on its own motion, then ordered certification of the complaint against Hinds, pursuant to R. 2:12-1, and directed that "the entire record, including but not limited to, the constitutional challenges to DR 1-102 and DR 7-197(D) raised by respondent, be considered by this Court." We also granted leave for the American Civil Liberties Union of New Jersey and the Association of Black Women Lawyers of New Jersey to participate in the case as amici curiae. In the meantime, the United States Supreme Court granted certiorari in the federal case. In a decision dated June 21, 1982, the Supreme Court reversed the Circuit Court, unanimously holding that the federal courts should abstain from interfering with this State's ongoing disciplinary proceedings. Middlesex Ethics Comm. v. Garden St. Bar Ass'n, U.S. , 102 S. Ct. 2515, 73 L. Ed. 2d 116. The Court reasoned that New Jersey's attorney disciplinary proceedings are considered "judicial in nature," id. at , 102 S. Ct. at 2522, the State has an "extremely important interest" in regulating the professional conduct of attorneys, id., and the State's
system afforded Hinds "abundant opportunity" to raise his federal constitutional claims, id. at , 102 S. Ct. at 2523.*fn1
Disciplinary Rule 7-107(D) restricts the speech of attorneys who are associated with pending criminal litigation by sanctioning such attorneys for making any extrajudicial statement that they expect to be disseminated to the public and that is "reasonably likely" to interfere with a fair trial.*fn2
Appellant Hinds claims that DR 7-107(D) is unconstitutionally vague and overbroad under the First Amendment. He asserts that the rule can be applied to restrict speech only when an attorney's out-of-court statements create a "clear and present danger" to the trial and that, applying this constitutional standard to these facts, his remarks regarding the conduct of the judge at the Chesimard trial did not violate the disciplinary rule or otherwise warrant sanction.
We note at the outset that the freedom to engage in robust public debate is at the very heart of the First Amendment. See Maressa v. New Jersey Monthly, 89 N.J. 176, 200-201 (1982); Kotlikoff v. Community News, 89 N.J. 62, 73 (1982). The Constitution unquestionably guarantees the right of citizens to criticize public officials, including judges. See Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 625, 2 L. Ed. 2d 589, 596 (1958); Craig v. Harney, 331 U.S. 367, 376, 67 S. Ct. 1249, 1255, 91 L. Ed. 1546, 1552 (1946). In our constitutional democracy, expressional activity enjoys the fullest and firmest
protection. See Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969); Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941).
A restriction on free speech can survive judicial scrutiny under the First Amendment only if certain fundamental and stringent conditions are satisfied. First, the limitation must "further an important or substantial governmental interest unrelated to the suppression of expression." Procunier v. Martinez, 416 U.S. 396, 413, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224, 240 (1974). Second, the restriction must be "no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. These two conditions are interrelated in the sense that the restriction must not only further a substantial governmental interest unrelated to the suppression of speech but it must also go no further than is necessary and essential to protect that substantial governmental interest. The judicial inquiry into whether these conditions have been met involves a balancing process. The court must weigh the gravity and probability of the harm caused by freely allowing the expression against the extent to which free speech rights would be inhibited or circumscribed by suppressing the expression. See Nebraska Press Association v. Stuart, 427 U.S. 539, 562, 96 S. Ct. 2791, 2804, 49 L. Ed. 2d 683, 699 (1976), citing United States v. Dennis, 183 F.2d 201, 212 (2 Cir. 1950) (Hand, J.), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951).
Like other citizens, attorneys are entitled to the full protection of the First Amendment, even as participants in the administration of justice. See R.M.J., U.S. , , 102 S. Ct. 929, 935-38, 71 L. Ed. 2d 64, 70-75 (1982); Konigsberg v. State Bar, 353 U.S. 252, 273, 77 S. Ct. 722, 733, 1 L. Ed. 2d 810, 825 (1957). Cf. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (reaffirming right of public access to trials). Since DR 7-107 purports to restrict the free speech rights of attorneys, its validity turns upon the application of conventional First Amendment standards. Under these demanding
tests, we must first examine the nature and importance of the governmental interest assertedly advanced by the restriction.
There can be no doubt that the State has a substantial interest in ensuring the fairness of judicial proceedings. See State v. Kavanaugh, 52 N.J. 7, cert. den., 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968); State v. Van Duyne, 43 N.J. 369 (1964), cert. den., 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Singer v. United States, 380 U.S. 24, 36, 85 S. Ct. 783, 790, 13 L. Ed. 2d 630, 638, 646-47; In re Sawyer, 360 U.S. 622, 666, 79 S. Ct. 1376, 1397, 3 L. Ed. 2d 1473, 1499 (1959) (Frankfurter, J., dissenting); Hirschkop v. Snead, 594 F.2d 356, 366 (4 Cir. 1979) (en banc); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7 Cir. 1975), cert. den., sub nom. Chicago Council of Lawyers v. Cunningham, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976); United States v. Tijerina, 412 F.2d 661, 667 (10 Cir. 1969). This interest does not belong to the defendant alone. The public also has an interest in a fair trial that cannot be imperiled or diminished by out-of-court assertions by either defense or prosecution lawyers. See Kavanaugh, 52 N.J. at 19-20; Van Duyne, 43 N.J. at 389; State v. Carter, 143 N.J. Super. 405, 408 (App.Div.), rev'd on other grounds, 71 N.J. 348 (1976). Thus, courts have recognized that restricting the extra-judicial statements of criminal defense attorneys relates to the government's substantial interest in preserving the proper administration of justice and the basic integrity of the judicial process. See Singer, 380 U.S. at 36, 85 S. Ct. at 790, 13 L. Ed. 2d at 638.
Attorneys occupy a special status and perform an essential function in the administration of justice. Because attorneys are "officers of the court" with a special responsibility to protect the administration of justice, courts have recognized the need for the imposition of some reasonable speech restrictions upon attorneys. "The interest of the states in regulating lawyers is especially great since lawyers are essential to the primary governmental
function of administering justice, and have historically been 'officers of the courts.'" Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004, 2016, 44 L. Ed. 2d 572, 588 (1975). Cf. Standards Relating to Fair Trial and Free Press, ABA Project on Minimum Standards for Criminal Justice at 82 (1968) (hereinafter "ABA Project") (lawyers have a "fiduciary obligation to the courts"). Thus, in resolving Hinds' federal action, the Supreme Court recently noted that "[t]he State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses." Middlesex Ethics Comm., U.S. at , 102 S. Ct. at 2522.
In their unique and special capacity as judicial officers, lawyers differ from ordinary citizens. This was aptly expressed by Justice Frankfurter in his dissent in In re Sawyer:
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, particularly an emotionally charged criminal prosecution, 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. [360 U.S. at 666, 79 S. Ct. at 1397, 3 L. Ed. 2d at 1499-1500].
Justice Stewart, concurring in that case, agreed that an attorney who uses a public forum to obstruct justice and interfere with a fair trial cannot invoke the protection of the First Amendment to avoid disciplinary sanctions. 360 U.S. at 646, 79 S. Ct. at 1388, 3 L. Ed. 2d at 1489.
This interest in trial fairness is particularly acute in the criminal context. There, the problem of preserving the basic fairness and integrity of the proceeding is of constitutional dimension because the defendant's right to a fair trial is guaranteed in the Sixth Amendment of the federal Constitution. Some courts, including the Supreme Court, have even held that the criminal defendant's constitutional right to a fair trial must take precedence over free speech. See, e.g., Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct. 1628, 1632, 14 L. Ed. 2d 543, 549 (1965) (defendant's right to a fair trial is "the most fundamental of all
freedoms"); Bauer, 522 F.2d at 248; Tijerina, 412 F.2d at 667; Hirschkop v. Virginia State Bar, 421 F. Supp. 1137, 1146-47 (E.D.Va.1976). Cf. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (press may sometimes be excluded from pretrial hearings in a criminal case); Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) (journalists have no absolute First Amendment right to refuse to disclose their sources or other confidential information when asked to do so by a grand jury). More than in any other context, the criminal trial setting requires our most diligent effort to ensure that the truth emerges and that the right result is reached. See In re Farber, 78 N.J. 259 (1978). A criminal case involves the highest of stakes because the defendant stands to lose his most precious of freedoms -- his personal liberty -- if convicted. The fairness of the trial is integral to reaching a just and proper result. Therefore, there are compelling reasons for making every effort to preserve trial fairness in the criminal context. See Middlesex Ethics Comm., U.S. at , 102 S. Ct. at 2522.
DR 7-107(D) clearly seeks to effectuate this important and substantial governmental interest in trial fairness. The difficult question is whether this disciplinary rule is broader than necessary or essential to protect that governmental interest.
Hinds contends DR 7-107(D) exceeds constitutionally permissible limits on grounds of both vagueness and overbreadth. While these doctrines are somewhat similar, there are important distinctions to be made between them. A prohibition upon speech may be void for vagueness if it is not clearly defined. To avoid the potential chilling effect on free speech rights, the regulation must be in "terms susceptible of objective measurement." Cramp v. Board of Public Instruction, 368 U.S. 278, 286, 82 S. Ct. 275, 280, 7 L. Ed. 2d 285, 291 (1961). As the Supreme Court explained in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2299, 33 L. Ed. 2d 222, 228 (1972), a vague law is one that:
'abut[s] upon sensitive areas of basic First Amendment freedoms,' . . . [and] 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.' [citations omitted].
Thus, the "void-for-vagueness" doctrine involves procedural due process considerations of fair notice and adequate warning. See State v. Lashinsky, 81 N.J. 1, 17-18 (1979); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 1246-1247, 39 L. Ed. 2d 605, 611-12 (1974); Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1322, 12 L. Ed. 2d 377, 385 (1964).
Prohibitions upon speech can also be void if they are too broad and far reaching in scope. "A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned, 408 U.S. at 114, 92 S. Ct. at 2302, 33 L. Ed. 2d at 231. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405, 418 (1963). In the final analysis:
[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose. [ Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231, 237 (1960)].
Thus, while vagueness implicates notions of procedural due process as to the fairness and adequacy of warning, overbreadth involves substantive due process considerations concerning excessive governmental intrusion into protected areas. Lashinsky, 81 N.J. at 17-18. See Gasparinetti v. Kerr, 568 F.2d 311 (3 Cir.), cert. den., 436 U.S. 903, 98 S. Ct. 2232, 56 L. Ed. 2d 401 (1977); Landry v. Daley, 280 F. Supp. 938, 951-52 (N.D.Ill.1968), appeal dismissed, 393 U.S. 220, 89 S. Ct. 455, 21 L. Ed. 2d 392 (1968), rev'd on other grounds, sub nom. Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971).
Ordinarily, speech restrictions will withstand constitutional scrutiny only if they are limited to prohibiting that speech which creates a "clear and present danger" of threatening some
substantial governmental interest unrelated to the suppression of expression. See Brandenburg, 395 U.S. 444, 89 S. Ct. 1827, 33 L. Ed. 2d 430; Bridges, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192. However, attorney extrajudicial ...