stating that “[t]he 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.”
How later courts described this case
- stating that “[t]he 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.”
- discussing principle that the parties’ and the media’s constitutional rights to communicate with discharged jurors must sometimes yield to the state’s constitutional interest in protecting the jury system by preventing post-verdict juror harassment
- applying the Disciplinary Rules of Professional Conduct’s severability clause to reach the conclusion that the remainder of Rule 3.06(d) remains in effect despite the Court’s holding that the term “or embarrass” is unconstitutionally vague
- noting that the Court in Gentile did not adopt the substantial likelihood of material prejudice standard as "defining the outer limit on restrictions of lawyers' speech, but merely held that it was 'constitutionally permissible.’ ”
Written by the judges who cited it.
The opinion
ENOCH, Justice,
joined by HECHT and OWEN, Justices, concurring in part and dissenting in part.
I share the plurality’s view that Rule 3.06(d) does not violate state or federal constitutional guarantees of free speech and equal protection. I disagree, however, that the Rule is vague in any respect. Thus, I join only in Parts I through V(B) and Part V(E) of the plurality opinion. I would reverse the court of appeals’ judgment and render judgment as it was originally rendered by the trial court. I concur in the Court’s judgment only to the extent that it permits Benton to be disciplined under Rule 3.06(d).
Correctly, the plurality concludes that the word “calculated” “modifies all three of the challenged verbs, ‘harass,’ ‘embarrass,’ and ‘influence.’ ” 1 Also correctly, the plurality then defines the term “calculated” as ereat-
1. 980 S.W.2d at 438. *444 ing an “objective reasonableness standard.” 2 A vagueness analysis questions whether the regulation is “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.” 3 Unlike the statute in Long v. State, and unlike the other cases cited by Justice BakeR, Texas Disciplinary Rule of Conduct 3.06(d) incorporates an objective reasonableness standard for determining whether the “ordinary attorney” would believe that his conduct was “objectively likely to” harass, embarrass, or influence jurors. 4
The inclusion of the “calculated to” language in Rule 3.06(d) “defin[es] the prohibited speech in terms of what effect an ordinary lawyer would expect the speech to have” and “assuages the vagueness doctrine’s concern with whether ‘men of common intelligence must necessarily guess at [the statute’s] meaning.’ ” 5 Therefore, Rule 3.06(d) survives Benton’s vagueness challenge. 6
But the plurality, while recognizing this objective reasonableness standard, unnecessarily proceeds to define “harass.” 7 It then compounds its error by concluding that the word “embarrass” is unconstitutionally vague. 8 The plurality should have rejected Benton’s facial vagueness challenge outright. Regarding the word “harass,” the plurality should have avoided its foray into statutes from other jurisdictions, especially when those statutes address an entirely different subject matter. 9 Furthermore, as for the word “embarrass,” the plurality misses the point when it states that “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.” 10
The issue in this case is whether the speaker’s actions were “objectively likely to” harass or embarrass the listener. 11 Whether a listener might be, or actually was, harassed or embarrassed is only indirectly relevant. If, under the objective reasonableness standard articulated by the plurality today, the speech was “calculated merely to harass or embarrass,” then the rule is violated. The question is whether an objectively reasonable lawyer would think his or her conduct was “likely to” cause harassment or embarrassment and whether the purpose of that communication was “merely” to enhance the likelihood that such harassment or embarrassment would occur. 12
Finally, this Court’s rules should be treated like statutes and should be governed by the same rules of interpretation and construction. 13 We are to make every effort to save a statute or rule from constitutional *445 infirmity. 14 The plurality articulates an objective reasonableness standard that girds Rule 3.06(d) against Benton’s vagueness challenge. Proceeding further to define the word “harass” and declare the word “embarrass” unconstitutionally vague is jurispruden-tially unwarranted and unsound.
The trial court correctly enforced Rule 3.06(d), and the court of appeals erred in reversing the judgment. I therefore agree with the plurality that the court of appeals’ judgment should be reversed, and I concur in the Court’s judgment only insofar as it permits the trial court to discipline Benton.
. Id. at 439.
. United States Civil Serv. Comm'n v. National Ass’n of Letter Carriers, 413 U.S. 548, 579 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 (1973); see also Howell v. State Bar, 843 F.2d 205, 208 (5th Cir.1988) (noting that a vagueness challenge is informed by context and that in reviewing an attorney disciplinary rule, one may take into account the special knowledge and experience that lawyers possess).
. See 980 S.W.2d at 439. Compare Tex Disc. R. Prof. Cond. 3.06(d), with Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App.1996) (considering Texas stalking statute and noting that it lacked an objective standard), and State v. Bryan, 259 Kan. 143 , 910 P.2d 212, 218 (1996) (considering Kansas stalking statute and noting that it lacked an objective standard).
. 980 S.W.2d at 437 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926))).
. See 980 S.W.2d at 439 ("While statutes that ‘[d]o not indicate upon whose sensitivity a violation ... depend[s]' are likely to run afoul of the vagueness doctrine, a restriction banning only 'what men of common intelligence would understand would be words likely to cause [harm]’ is less objectionable.”) (quoting Coates, 402 U.S. at 613 and n. 3, 91 S.Ct. 1686 ) (citations omitted).
. 980 S.W.2d at 439.
. Id. at 440.
. Id. at 440.
. Id. at 440.
. Id. at 440.
. Tex Disc. R. Prof. Cond. 3.06(d).
. See, e.g., Hidalgo, Chambers & Co. v. F.D.I.C., 790 S.W.2d 700, 702 (Tex.App. — Waco 1990, writ denied).
. See 980 S.W.2d at 439 (citing cases for the proposition that "we are bound to construe [a word] to avoid constitutional infirmity if possible"); see also, e.g., Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996); Texas State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex.1970).
. The fact that the underlying Salas v. Abete case was pending retrial when Benton wrote his letter is irrelevant to the Court’s reasoning or my critique of it. There is no suggestion in the proceedings below that Benton's letter poisoned the venire from which the second Salas v. Abete jury, if any, would be selected.