concurring in part and dissenting in part:
We concur in parts I, II, IV, V, VI, VII, VIII, and IX of the court’s opinion except to the extent that they incorporate the standard approved in part III. We dissent from the court’s approval in part III of restrictions on lawyers’ comments that do not pose a clear and present danger to the fairness of a criminal trial. Accordingly, we join in the portion of the judgment *379reversing the district court and dissent from the portion that affirms it. We would remand the case for entry of a declaratory judgment that all of rule 7-107 is unconstitutional.
We agree that the state may adopt a rule restricting lawyers’ statements about pending criminal cases, but we believe that the first amendment requires such a rule to pass a more rigorous test than that applied by the court to rule 7-107. To be constitutional, a disciplinary rule must limit its restraints on speech to statements that pose a clear and present danger to the fairness of a criminal trial. Rule 7-107 does not satisfy that test.
Although Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), approved the use of rules to regulate lawyers’ comments about criminal cases tried before a jury, neither it nor succeeding cases decided what degree of regulation would be compatible with the first amendment. Other pertinent authority, however, provides the appropriate standard.
In Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), the leading case resolving the conflict between the first amendment and another important governmental interest, Mr. Justice Holmes wrote:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
Subsequent cases recognized that Mr. Justice Holmes’s standard was not a test that provided a ready answer to every situation; determination of what danger is clear and when it is present cannot be ascertained by a simple formula. See Whitney v. California, 274 U.S. 357, 374, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis and Holmes, JJ., concurring). Nevertheless, the Court has accepted the “clear and present danger” phrase as a working principle to protect freedom of speech by requiring proof that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941). It has equated the clear and present danger test with language that connotes a real and substantial threat to the fairness of a trial. See Pennekamp v. Florida, 328 U.S. 331, 336, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946). The Court has not tolerated a lesser standard for the imposition of restrictions on speech about pending litigation. Craig v. Harney, 331 U.S. 367, 371-72, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947).
Counsel for the appellees suggests, however, that the difference between the “reasonable likelihood” and the “clear and present danger” standards involves nothing more “than a futile exercise in semantics.” This notion is refuted by Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). In Bridges, a newspaper and a labor leader had been convicted of contempt for publishing comments about pending litigation which the trial and appellate courts described as having an “inherent” or “rear sonable tendency” to interfere with the fair and orderly administration of justice. The state defended the convictions on the ground that “in so far as these punishments constitute a restriction on liberty of expression, the public interest in that liberty was properly subordinated to the public interest in judicial impartiality and decorum.” See 314 U.S. at 259, 62 S.Ct. 190. The Supreme Court unequivocally rejected this argument, holding: “In accordance with what we have said on the ‘clear and present danger’ cases, neither ‘inherent tendency’ nor ‘reasonable tendency’ is enough to justify a restriction of free expression.” 314 U.S. at 273, 62 S.Ct. at 198.
Bridges also disposes of the contention pressed by appellees’ counsel that a standard less rigorous than the clear and present danger test is permissible for temporary restrictions on speech that are limited to the pendency of the trial. Responding to a similar argument, the Court pointed out that the restrictions on speech pending a trial operated when public interest was *380high. These “moratoria on public discussion,” the Court held, cannot “be dismissed as an insignificant abridgment of freedom of expression.” 314 U.S. at 269, 62 S.Ct. at 197.
Appellees’ counsel insists that the reasonable likelihood test has been approved by Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), where the Court said:
But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates or transfer it to another county not so permeated with publicity. ... If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered.
This admonition, however, refers to remedial action by trial judges in individual cases. The Court did not explicitly tie the reasonable likelihood standard to a general rule limiting lawyers’ comments in all cases. Because the Court was not adjudicating the constitutionality of such a rule, it had no occasion to consider the serious first amendment issues involved. For this reason it is unlikely that the Court implicitly approved a shift from the clear and present danger standard, which it had adopted in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), to a reasonable likelihood standard, which it had rejected in Bridges v. California, 314 U.S. 252, 273, 62 S.Ct. 190, 86 L.Ed. 192 (1941), without even commenting on the subject. Indeed, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), recently affirmed the validity of Bridges and succeeding cases that relied on the clear and present danger standard.
Moreover, Sheppard’s reasonable likelihood standard for measuring whether publicity has denied a defendant due process cannot be readily adapted to draw the boundaries of lawyers’ first amendment rights. The difficulty arises from attempting to restrict first amendment rights prospectively by using a standard that was formulated for retrospectively gauging infringements of the due process clause. When a court applies the reasonable likelihood test to determine whether due process requires that an accused be granted a continuance, change of venue, or new trial because of prejudicial publicity, it views the evidence retrospectively. Thus, it may find that publicity, which may have created a reasonable likelihood of an unfair trial at the time it was published, has been so blunted by the passage of time that it can no longer be considered prejudicial when the case is eventually tried. See, e. g., Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Wansley v. Slayton, 487 F.2d 90 (4th Cir. 1973). Also, examination of the jurors may disclose that an impartial jury can be selected even though some of them have been exposed to prejudicial publicity. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Viewed retrospectively, not every prejudicial comment invariably requires a change of venue or reversal on the ground that the accused has been denied due process.
In contrast, rule 7-107 operates prospectively to prohibit lawyers’ comments. When a lawyer speaks about a pending case, he frequently does not know how the case will develop, how his remarks will be interpreted and reported, how much community interest will arise, or what steps the trial judge will take to avoid prejudice. Therefore, a lawyer can only speculate whether his comments might later be judged to have created a reasonable likelihood of prejudice because of contingencies that he might not foresee. Under these circumstances, the prudent course is to avoid all comment, no matter how remote the chance of prejudice might seem at the time. The evidence in this case indicates that this is the rule’s present effect. Threatened with professional disgrace, lawyers must restrict their speech “to that which is unquestionably safe.” This sweeping proscription offends the first amendment. “Free speech may not be so inhibited.” Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964).
*381Although lawyers are officers of the court, the privilege of practicing their profession does not justify the imposition of conditions on their first amendment rights. “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Elrod v. Burns, 427 U.S. 347, 360-63, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Lawyers’ status, their access to information about pending litigation, and the interest their comments arouse are a part of the environment in which they speak. Consequently, these factors must be considered when determining whether their comments about pending cases constitute a clear and present danger to fair trials. Cf. Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). But their profession, unique as it may be, does not justify measuring their first amendment rights of freedom of speech by standards less protective than those accorded other persons. Cf. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).
Recognizing that “the reasonable likelihood test is too relaxed to provide full protection to the first amendment interests of attorneys,” the American Bar Association recently revised the 1968 standard that served as a prototype for Virginia’s rule. See ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press 3 (1978). On August 9, 1978, the Association’s House of Delegates approved a substantial modification of ABA Criminal Justice Standard 1.1 (1968). The new standard jettisons the former reasonable likelihood test and proscribes only a lawyer’s dissemination of information that “would pose a clear and present danger to the fairness of the trial.” ABA Criminal Justice Standard 8-l.l(a) (1978).
In sum, we conclude that the governmental interest in fair jury trials of criminal cases and the lack of less restrictive means for achieving this end justify the promulgation of a rule restricting the comments that a lawyer may make for publication. Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Such a rule, however, can prohibit only the types of statements that pose a clear and present danger or a real and substantial threat to fair trials. Pennekamp v. Florida, 328 U.S. 331, 336, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 273, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 12 L.Ed.2d 37 (1964). Rule 7-107 does not meet these constitutional requirements. Accord Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249-51 (7th Cir. 1975); ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press 1-5 (1978). We therefore respectfully dissent from the court’s approval of a disciplinary rule based on a less stringent standard.