Attorney laments high court’s refusal to hear his free-speech case

Friday, June 11, 1999

A Texas attorney who failed to have his First Amendment case reviewed by the U.S. Supreme Court says he's learned an unfortunate lesson — that it is dangerous to assume you have free-speech rights.

The U.S. Supreme Court recently refused to hear Benton v. Texas Commission for Lawyer Discipline, the case of attorney Barry Robert Benton who was punished by the state bar for sending a critical letter to jurors after an unfavorable verdict in one of his personal-injury cases.

Benton contended that being punished for his letter violated his free-speech rights under the U.S. and Texas constitutions.

Benton mailed a letter in 1992 to jurors in a personal-injury case, criticizing them for failing to award damages to his clients. “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,” Benton wrote.

The state bar's grievance committee concluded that Benton had violated a disciplinary rule prohibiting attorneys from making comments to jurors after they have finished their duties “that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.”

Benton rejected the grievance committee's punishment — a public reprimand — and instead elected to have the complaint heard in a state trial court.

He argued the disciplinary rule was unconstitutionally overbroad, vague and a prior restraint on his speech. “The rule is so vague and overbroad that it's incredible,” he said.

However, the trial court ruled against Benton, placing him on probation for one year pending an apology to the jurors and performance of community service.

On appeal, a Texas appeals court disagreed, finding that the rule was unconstitutionally vague. The Texas Supreme Court in July 1998 reversed, finding that the rule as a whole was constitutional. Last week, the U.S. Supreme Court denied Benton's appeal of the state high court decision.

The Supreme Court's inaction means that the decision of the Texas Supreme Court stands. The state high court analyzed the rule under the U.S. Supreme Court's standard for attorney speech outlined in the 1991 decision Gentile v. State Bar of Nevada.

In Gentile, the U.S. Supreme Court determined that a Nevada state bar's disciplinary rule that prohibited attorneys from making statements substantially likely to create a material prejudice did not violate the First Amendment.

Applying the Gentile standard, the Texas Supreme Court found in Benton that the application of the ethics rule 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.”

The Texas high court described the rule as “a narrow prohibition on those questions and comments that tend to injure the jury system.” The court said that Benton's letter would harm the jury system by discouraging people from serving on juries.

A majority of the Texas Supreme Court justices did find that a portion of the ethics rule was unconstitutionally vague — the term “embarrass.” The court said the term was “fatally vague” because it “varies so greatly between individuals.”

However, the court said the unconstitutional term could be “severed” from the rule without invalidating the rest of the rule.

Benton had argued that the phrase “to influence his actions in future jury service” was unconstitutional because the lawyer on the other side of the original personal-injury case had sent a letter to jurors praising them for their performance.

“The rule basically says that it is OK to compliment jurors, but not to criticize them,” Benton said. “That is viewpoint discrimination.”

Because the trial judge did not specifically say which provision of the rule Benton had violated — the embarrass, harass or influence others prong — the state high court ordered the trial judge to conduct another punishment hearing.

Benton said he was “disappointed” by the U.S. Supreme Court's inaction. “I thought this case was a no-brainer,” he said. “Obviously, you are facing a numbers game but I thought because this case involved the fundamental right of free-speech, that I had a legitimate shot.

“Attorneys cannot say anything to jurors except the most innocuous platitudes,” he said. “This case is a continuation of lawyers being treated as second-class citizens. The people in the best position to access juror performance — attorneys — can't say anything critical.”

Benton compared his plight to “something out of (George Orwell's novel) 1984.”

“I guess I perhaps did not use the best of judgment in sending the letter,” he said. “But I made an assumption — that I had a free-speech right. I learned that is a dangerous assumption in America today.”

Dan Hedges, a Houston attorney who represented the state bar's Commission on Lawyer Discipline, said: “I think the significance of the U.S. Supreme Court's denial of certiorari (refusal to hear the case) is a recognition that lawyers have special privileges conferred upon them and certain responsibilities that go along with those privileges. Some of these responsibilities do place some limitations on attorneys' First Amendment rights.”

Benton said no date had been set on his punishment hearing.