Curb on Lawyers’ Free Speech Rights OKd : Attorneys: High court holds that the guarantee of a fair trial justifies imposing restrictions that could not be applied to the public or news media.

The Supreme Court on Thursday reaffirmed the power of states to restrict what criminal defense lawyers may say about their clients and the charges they face.

By a 5-4 vote, the court ruled that a lawyer’s normal free speech rights are outweighed by the danger of a “substantial likelihood of material prejudice” to a fair trial.

But, in the same case, the court ruled, 5 to 4, that Nevada’s restriction on pretrial publicity is unconstitutionally vague, and it threw out a reprimand given to a Las Vegas lawyer who criticized police conduct in a news conference defending a client.

Justice Sandra Day O’Connor was the swing vote on both majorities.

The case had seemed to present a chance for the high court to revisit the question of the balance between a free press and a fair trial.

That issue had led to widespread soul-searching among lawyers in the mid-1960s after the Earl Warren court explicitly condemned “trial by newspaper” and reversed a conviction in a highly publicized murder case, declaring that “massive, pervasive and prejudicial publicity” had made a fair trial impossible.

In the wake of that ruling, the American Bar Assn. formulated a disciplinary standard to restrict what lawyers may tell the press in pending cases--a standard on which the Nevada regulations, and similar regulations in 31 other states and the District of Columbia, are based.

Because of the narrow divisions in Thursday’s split decision, the expected collision between the First Amendment’s free speech rights and the Sixth Amendment’s guarantee of a fair trial did not occur.

Thurgood Marshall, in one of his last cases, sided with liberal Justices Harry A. Blackmun and John Paul Stevens and with O’Connor in supporting Justice Anthony M. Kennedy in nullifying the rebuke to Dominic P. Gentile, the Las Vegas lawyer.

But, in the larger issue in the case, the overall constitutional validity of the Nevada regulation, Marshall, Kennedy, Blackmun and Stevens slipped into the minority and dissented from the view of Chief Justice William H. Rehnquist and Justices Antonin Scalia, David H. Souter, Byron R. White and O’Connor that lawyers are subject to restrictions on their free speech rights that could not be imposed on the general public or the news media.

Although televised courthouse press conferences have become common, judges sometimes impose “gag orders” on parties involved in criminal cases to cut off out-of-court comments.

“Lawyers representing clients in pending cases are key participants in the criminal justice system, and the state may demand some adherence to the precepts of that system in regulating their speech as well as their conduct,” Rehnquist said in generally upholding the Nevada regulation. That rule, he added, “is no broader than necessary to protect the state’s interests.”

In the Nevada case (Gentile vs. State Bar of Nevada, 89-1836), Gentile held a news conference to counter frequent public statements by police officers and prosecutors condemning his client, accused of stealing money and cocaine from a safe deposit box that police were using in an undercover sting operation. Gentile declared his client innocent and told reporters one of the policemen--a likely witness in the case--was most likely the guilty one.

In the trial six months later, Gentile’s client was cleared of all charges. But the Nevada State Bar accused Gentile of violating the Nevada regulations by making public statements impugning a witness and asserting the innocence of a defendant.

That, it charged, created “a substantial likelihood of materially prejudicing” the trial--the standard upheld in the conservative segment of Thursday’s ruling.

However, the Nevada regulations also contain a “safe harbor” clause--a section that permits general public statements regarding defense strategy and other issues in the case that are on the public record.

The majority in the liberal segment of Thursday’s ruling concluded that Gentile had taken pains to conform to the safety net provided by those exceptions and said that his reprimand, as upheld by the Nevada Supreme Court, rendered the whole regulation unconstitutionally vague as applied in his case.

The clause “misled (Gentile) into thinking he could give his press conference without fear of discipline,” Kennedy wrote. Such vagueness, he added, “creates a trap for the wary as well as the unwary.”

Also Thursday, as the justices wound up business to close the 1990-91 term, they:

--Ruled 5 to 4 that minority stockholders in a “freeze-out” merger are not entitled to any damages, however compelling their complaint that proxy statements leading up to the merger were misleading, because their votes could not have blocked the merger.

The justices threw out a federal court order imposing $13 million in damages on the majority shareholder, First American Bankshares Inc., a Virginia bank holding company that had been sued over the 1987 merger of its subsidiary, Virginia Bankshares Inc., and the First American Bank of Virginia. But the high court ruled also that the holding company directors could have been held liable under federal securities law for misleading statements in proxy solicitations.

--Ruled that the U.S. Tax Court has authority to appoint special trial judges to ease its workload, even in complex disputes, such as over tax shelters.