dissenting.
Today the Court announces that the free speech clauses of the United States and Texas Constitutions do not permit a lawyer to privately confront and criticize jurors for rendering an unfavorable verdict. In a recent opinion this Court acknowledged that “[cjommunication sometimes requires confrontation.” Operation Rescue v. Planned Parenthood, 975 S.W.2d 546, 555 (Tex.1998). I would hold that while the courts and the bar should discourage the crassness exhibited by the lawyer in this case, the disciplinary enforcement of Rule 3.06(d) infringes on constitutionally protected speech.
A majority of the Court realizes that Rule 3.06(d)’s prohibition on “comments to a member of [a discharged] jury that are calculated merely to ... embarrass” is unconstitutional. See Tex. DISCIPLINARY R. Prop. Conduct 3.06(d). The “embarrass” provision is not only vague, but also an impermissible restriction on constitutionally protected speech. “Speech does not lose its protected character ... simply because it may embarrass others or coerce them into action.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).
For similar reasons, the Court’s counterin-tuitive construction of Rule 3.06(d)’s prohibition on “comments ... calculated merely ... to influence [a discharged juror’s] actions in future jury service” is unconstitutional. See Tex. DisciplinaRy R. PROF. Conduct 3.06(d). Speech retains its protected character not just when it is embarrassing, but also when it is confrontational, obnoxious, and insulting. See Claiborne Hardware, 458 U.S. at 921, 102 S.Ct. 3409 (“To the extent that the court’s judgment rests on the ground that ... citizens were ‘intimidated’ by ‘threats’ of ‘social ostracism, vilification, and traduction,’ it is flatly inconsistent with the First Amendment.”). Because the Court concludes otherwise, I dissent.
I
Benton’s letter was a personal, political commentary on a jury verdict in the context of a highly charged debate over lawsuit abuse. Benton’s letter confronted the jurors for, as he perceived it, ignoring the facts and succumbing to the influences of the Campaign Against Lawsuit Abuse in entering a take-nothing verdict. Like other members of the bar, Benton believed that the campaign’s disparagement of excessive litigation influenced jurors to be predisposed against plaintiffs regardless of the merits of their case.
Speech concerning public affairs is “at the core of the First Amendment,” Butterworth v. Smith, 494 U.S. 624, 632, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990), because it is the “essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). The strong protections provided for political speech activities are robust even in the context of the regulation of lawyers. See Florida Bar v. Went-For-It, Inc., 515 U.S. 618, 634, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (“There are circumstances in which we will accord speech by attorneys in public issues and matters of legal representation the strongest protection our Constitution has to offer.”); In re Primus, 436 U.S. 412, 432, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978) (holding that punishing a lawyer for political expression “must withstand the ‘exacting scrutiny applicable to limitations on core First Amendment rights’ ”) (citation omitted).
*446The Commission argues that because Benton delivered his speech in a private letter to the jurors rather than to a public audience, his speech was not political. It characterizes Benton’s letter as not a “free discussion of governmental affairs,” but instead a “diatribe,” “a personal attack on the integrity of the jurors and nothing more.” The Commission would reserve the First Amendment’s immunities to public speech, and deny those immunities to private, confrontational speech.
The Commission’s minimalist theory of free speech is flawed. The Supreme Court’s First Amendment analysis has generally started with a presumption that all speech is protected. It has found expression falling within only a few very narrow categories of speech to lack significant First Amendment protection. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (falsely shouting “fire” in a crowded theater); New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (child pornography); Miller v. California, 413 U.S. 15, 20, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (defamation). Even these generally proseribable categories have been strictly delimited. See, e.g., City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (all narrowly construing the “fighting words” exception); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (qualifying the proscribability of defamation). While the Supreme Court has repeatedly emphasized that public or political speech is at the very core of First Amendment protection, see, e.g., Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), this does not undercut the value of other forms of expression.
Even assuming Benton’s letter does not qualify as classic political or public speech, it qualifies as moral suasion. Benton’s letter to the discharged jurors, albeit caustic, challenged the jurors to change their personal attitudes about civil justice. Benton testified that although his letter was “way too aggressive,” it was not his intention to harass or embarrass the jurors. He wished to confront the jury for what he believed was “its blatant disregard of the facts” and “unjust and wrongful decision.” He was incensed that “despite the undisputed evidence of medical bills and lost wages ... the jury wrote zeroes in all the spaces provided.”
If speech is to be valued in proportion to the extent to which it affects how people function, interact, and govern themselves culturally as well as politically, then moral suasion must be very near if not at the immediate core of the First Amendment’s protection. Moral suasion frequently stings, but that is not necessarily bad. Speech that induces individuals to re-evaluate and perhaps modify their convictions serves as a cathartic against the vices of individualism. In his definitive treatise on early American democracy, Alexis de Tocqueville recognized the value of moral suasion to the American way of life:
Nothing, in my opinion, is more deserving of our attention than the intellectual and moral associations of America. The political and industrial associations of that country strike us forcibly; but the others elude our observation, or, if we discover them, we understand them imperfectly, because we have hardly ever seen anything of the kind. It must, however, be acknowledged, that they are as necessary to the American people as the former, or perhaps more so.
Alexis de Tocqueville, DemocRacy in America 201-02 (Richard D. Heffner ed., New American Library 1956) (1840). Grass-roots activism, door-to-door proselytizing, and one-on-one appeals to moral values have preceded and nurtured nearly every major social change in American history.
Regrettably, society now exalts moral indifference as a public virtue and increasingly resists its agents of moral suasion. The popular sentiment that every individual is free to *447choose his or her own philosophy and values has evolved into a cultural resentment against proselytizing and personal moral confrontation. Tocqueville warned that one of the greatest threats within a democracy was its tendency to foster indifference and separation among individuals, but he praised America for combating these tendencies with its free institutions. Tocqueville, supra, at 195. However, the battle against society’s increasing insularity will be lost if the courts fail to protect the Constitution’s most sacred institutions, namely, the freedoms of religion, speech, press, and association.
The Commission argues that Benton’s letter was not entitled to the traditional immunities of political speech because it was personal rather than public, thereby invading then privacy. However, personal, one-on-one moral confrontation should not be segregated from the protections we recognize for classic public speech. “In a face-to-face encounter there is a greater opportunity for the exchange of ideas and the propagation of views_” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 798, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). “Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed, only by the reciprocal influence of men upon each other.” Tocqueville, supra, at 200. “[T]he most effective, fundamental, and perhaps economical avenue of political discourse [is] direct one-on-one communication.” Meyer v. Grant, 486 U.S. at 424, 108 S.Ct. 1886.
In several opinions spanning the major political movements of the twentieth century, the Supreme Court has vindicated the right of activists to pursue converts through focused confrontation and moral suasion. See, e.g., American Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 206-07, 42 S.Ct. 72, 66 L.Ed. 189 (1921) (recognizing the right of labor representatives to act as “missionaries,” accosting strike-breakers as they attempted to enter or exit the plant); Martin v. City of Struthers, 319 U.S. 141, 145-49, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (striking down ordinance prohibiting door-to-door solicitation as applied to religious speech); Organization for a Better Austin v. Keefe, 402 U.S. 415, 416-20, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (upholding the right of neighborhood activists to organize community pressure against real estate agent who promoted white flight for private gain); NAACP v. Claiborne Hardware, 458 U.S. 886, 921, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (holding that even unpleasant forms of moral suasion — including “ ‘threats’ of ‘social ostracism, vilification, and traduction’ ” — are protected by the First Amendment); Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855, 870, 137 L.Ed.2d 1 (1997) (rejecting any “generalized [privacy] right to be left alone”). Even our own Court recently acknowledged that “[e]ommunication sometimes requires confrontation.” Operation Rescue v. Planned Parenthood, 975 S.W.2d at 555.
The right to verbally confront the morality of one’s attitudes or conduct is not limited to tactful commentary. “The right [of free speech] extends to the aggressive and disputatious as well as to the meek and acquiescent.” Martin v. City of Struthers, 319 U.S. at 149, 63 S.Ct. 862 (Murphy, J., concurring). “Speech does not lose its protected character ... simply because it may embarrass oth-ers_” Claiborne Hardware, 458 U.S. at 910, 102 S.Ct. 3409. Freedom of speech should not depend on the court or the bar’s judgment of the wisdom, polity, or prudence of a given communication. “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases.” Id. at 928, 102 S.Ct. 3409. “One of the prerogatives of American citizenship is the right to criticize public men and measures— and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-74, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944).
The content of speech cannot be regulated to protect the feelings of the targeted individual or the sensibilities of the public. “As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment.’” Boos v. Barry, 485 U.S. 312, 322, *448108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (citation omitted). Jurors, as citizens and participants in the administration of justice, are entitled to no exemption from these burdens of the First Amendment.
In a footnote, the Court exculpates its construction of Rule 3.06(d) to prohibit personally offensive speech on the basis that the rule “is concerned not with protecting jurors’ sensibilities as such, but with protecting the jury system from the harm that is likely to result from inappropriate attorney communications with discharged jurors.” 980 S.W.2d at 433 n. 3. The Supreme Court rejected a similar argument in Boos v. Barry when it struck down a statutory provision prohibiting the display of any sign within 500 feet of a foreign embassy tending to bring that foreign government into public odium or disrepute. See 485 U.S. at 315, 108 S.Ct. 1157. Although it acknowledged the display clause’s purpose — to prevent harm to international relations by protecting the dignity of foreign diplomats — the Court held that “[l]is-teners’ reactions to speech are not the type of ‘secondary effects’” that justify restrictions on speech. Id. at 321, 108 S.Ct. 1157; see also R.A.V. v. City of St. Paul, 505 U.S. 377, 394 & n. 7, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (striking down hate-crimes ordinance even though it was aimed at preventing race-related violence and victimization); Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (protecting right to burn flag despite argument that it affected national security by demoralizing American troops).
II
Benton wrote his letter to the jurors after they had been discharged. Therefore, it is improbable that his letter would have any impact in the pending retrial of his case. Accordingly, I would subject Rule 3.06(d) to the exacting scrutiny traditionally applied to sanctions against political speech. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).
Nevertheless, this Court chooses to apply Gentile’s intermediate scrutiny standard, which was approved by a sharply divided Supreme Court, for restrictions on lawyer speech affecting a pending ease. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Benton’s letter, however, had no impact on any pending case.1 The Gentile decision does not support the proposition that restrictions on a lawyer’s communications with the members of a discharged jury are entitled only to intermediate scrutiny.
In Gentile, the Supreme Court held that the bar could restrict lawyers’ extrajudicial statements posing a “substantial likelihood of materially prejudicing [an adjudicative] proceeding.” See id. at 1076, 111 S.Ct. 2720 (opinion of Rehnquist, C.J.). There were two principle reasons the Supreme Court approved a lower standard for a lawyer’s professional communications in a pending case than the “clear and present danger” test— the identity of the speaker and the timing of the speech. See Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1442 (9th Cir.1995). First, a lawyer is an “officer of the court” with privileged access to information and whose “extrajudicial statements pose a threat to the fairness of a pending proceeding.” Gentile, 501 U.S. at 1074, 111 S.Ct. 2720. Second, extrajudicial comments in a pending ease may be “likely to influence the actual outcome of the trial” or “prejudice the jury venire, even if an untainted panel can ultimately be found.” Id. at 1075, 111 S.Ct. 2720. Underscoring the fact that the Gentile standard applies only to pending cases, the Court emphasized that “[t]he regulation of attorneys’ speech ... merely postpones the attorneys’ comments until after the trial.” Id. at 1076, 111 S.Ct. 2720.
The interests that prompted the Supreme Court to legitimize the “substantial likelihood” standard for a lawyer’s extrajudicial speech in pending cases are not present in this case. “The special considerations identi*449fied by Gentile are of limited concern when no case is pending before the court. When lawyers speak out on matters unconnected to a pending case, there is no direct and immediate impact on the fair trial rights of litigants.” Yagman, 55 F.3d at 1443. Even in the event that a lawyer’s intemperate remarks toward discharged jurors gain widespread notoriety, I believe that the remarks are unlikely to predispose future juries for or against a particular party. Finally, unlike the rule upheld in Gentile, Rule 3.06(d) does not merely postpone certain speech, but altogether prohibits it.
Gentile is factually similar in only one respect: an attorney’s speech is at issue. I do not dispute that in many respects, attorneys must be held to a higher standard than the rest of the public. Because of their special access to discovery information and client confidences, they are limited in what they may disclose. As officers of the court, they must behave with dignity and decorum in the courtroom. But I disagree that a lawyer’s status as an officer of the court justifies comprehensive restrictions on his or her speech. The United States Supreme Court has expressed similar doubts:
[Although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights.
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647-48, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985).
This Court’s extension of the Gentile standard to speech that does not affect any pending case contrasts with the reluctance with which the United States Supreme Court approved the Gentile standard for speech affecting a pending case. Four of the justices objected to lowering the standard at all, even for pending cases. See 501 U.S. at 1054, 111 S.Ct. 2720 (opinion of Kennedy, J.) (“We have not in recent years accepted our colleagues’ apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge on First Amendment freedoms.”). This Court’s extension of the Gentile standard to speech after the trial is also in tension with other cases recognizing that the First Amendment’s strongest protections are restored after the trial comes to an end. See, e.g., Patterson v. Colorado, 205 U.S. 454, 463, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (Holmes, J.) (“When a case is finished, courts are subject to the same criticism as other people.”); State Bar v. Semaan, 508 S.W.2d 429, 432-33 (Tex.Civ.App. — San Antonio 1974, writ refd n.r.e.) (recognizing the First Amendment’s protection of an attorney’s derogatory statements against a judge made outside the course of judicial proceedings).
In choosing to rely on federal rather than state precedent, this Court ignores Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992), in which we held that a trial court’s gag order to prevent lawyers from speaking about a pending case violated the free speech guaranties of the Texas Constitution. We sometimes start our free speech analysis with the First Amendment when the federal standard is more refined and protective of speech than the state standard, or where the federal constitutional standard has been decided more recently than the state standard. See, e.g., Operation Rescue, 975 S.W.2d at 556. But in the instant case, Davenport is not only more protective of speech than Gentile, but also more recently decided than Gentile.
Although it is distinguishable in some respects, Davenport, like the instant case, involved a conflict between a court’s interest in safeguarding the administration of justice and a lawyer’s freedom of speech. See 834 S.W.2d at 6 (“Counsel in this ease ... are expressly ORDERED to refrain from discussing or publishing ... any matters of this case with any persons other than their clients, agents, or employees-”). Seeking to prevent misstatements and misunderstandings that could threaten a proposed settlement and jeopardize the best interests of the minor plaintiffs, see id. at 28 (Hecht, J., concurring in the judgment), the trial court enjoined the attorneys, their clients, witnesses, agents and representatives from pub*450licly commenting on a toxic tort case outside of the courtroom. See id. at 6. This Court struck down the injunction as violating article I, section 8 of the Texas Constitution:
[A] gag order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.
Id. at 10 (emphasis added).
In both Davenport and Gentile, our Court and the United States Supreme Court, respectively, decided the extent to which the federal “clear and present danger” standard enunciated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), applied to a lawyer’s extrajudicial statements affecting a pending ease. In Davenport, we held that “[t]he standard enunciated in Nebraska Press ... does not ... sufficiently protect the rights of free expression that we believe that the fundamental law of our state requires.” 834 S.W.2d at 10. In Gentile, by contrast, the United States Supreme Court explicitly rejected Nebraska Press as top demanding a standard for regulating the speech of lawyers. 501 U.S. at 1074, 111 S.Ct. 2720. The Court, however, believes that the tension between these very disparate standards is fully resolved by the fact that Davenport involved a prior restraint, whereas Rule 3.06(d) does not. 980 S.W.2d at 435.
In avoiding Davenport, the Court gives talismanic significance to the distinction between Rule 3.06(d) and a classic prior restraint. But elsewhere in its opinion, the distinction loses its significance in the Court’s approval of several cases from other jurisdictions that uphold prior restraints — cases in which the same outcome would be doubtful under the Davenport standard. See, e.g., United States v. Cleveland, 128 F.3d 267, 270 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1518, 140 L.Ed.2d 670 (1998) (upholding a sweeping prior restraint on the right of the press to interview discharged jurors because a juror’s fear of interviews could affect its deliberations); United States v. Antar, 38 F.3d 1348, 1363 (3d Cir.1994) (upholding a prior restraint on juror interviews); United States v. Moten, 582 F.2d 654, 666 (2d Cir.1978) (modifying the district court’s prior restraint on juror interviews).
While Rule 3.06(d) is not a quintessential prior restraint, it possesses the very characteristics courts have found so troubling with prior restraints. “The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). Unlike libel law, under which no penalty can be imposed unless the statement is objectively false, the line between acceptable and unacceptable communicative influences is poorly defined in both the text and the Court’s interpretation of Rule 3.06(d).
The part of the Rule which the Court finds was violated by Benton’s letter prohibits a lawyer from “ask[ing] questions of or makfing] comments to a member of that jury that are calculated merely ... to influence his actions in future jury service.” Tex.R. DISCIPLINARY P. 3.06(d). Black’s Law Dictionary defines the word “calculated” as “[t]hought-out, premeditated,” and the word “influence” as “[t]o affect, modify or act upon by physical, mental or moral power, especially in some gentle, subtle, and gradual way.” Black’s Law Dictionary (6th ed.1990).
At one point the Court suggests the Rule applies to speech “attempting] to persuade jurors to favor a particular lawyer, firm, or side of the docket in future jury service.” See 980 S.W.2d at 436 (emphasis added). So construed, the Rule would prohibit attorney communications specifically intended to ingratiate oneself with jurors to gain an advantage for oneself, one’s firm, or one’s clients in future cases. But later, the Court construes that the word “calculated” in the context of Rule 3.06(d) to mean objectively likely rather than intended. This is a startling construction. Whether informed by case law or common sense, an ordinary lawyer would proba*451bly understand the word “calculated” in the statute, followed by the modifier “merely,” to require specific intent. See Corson v. State, 148 Tex.Crim. 680, 190 S.W.2d 726, 728 (1945) (holding that the word “willfully” in a criminal statute meant not only that the act was intended, but “ ‘that the means used by him were calculated to maim’”) (citation omitted) (emphasis added); John Schmole-sky, Criminal Law, 38 Sw. L.J. 497, 506 n. 76 (1984) (equating “calculation” with “specific intent”). Also, even though the “influence” provision of Rule 3.06(d), on its face, seems directed to communications calculated to sway jurors in future cases, the Court focuses on the offensiveness of Benton’s letter. Whether “calculated” means “intended” or simply “likely to,” Rule 3.06(d)’s influence provision has been misapplied to Benton’s letter.
I do not believe that there is any basis for characterizing Benton’s letter as being calculated, that is, specifically intended, to predispose future jurors to a particular lawyer, firm, or side of the docket or to discourage them from future service. Benton admits that he attempted to influence the jurors in future cases, but not in those ways. Benton admits only that he intended to chastise the jurors for their decision and influence them to decide fairly in future cases.
Similarly, it would be presumptuous to impute self-serving motives to Thomas Clay Hollis, the attorney representing the defendant in the underlying ease, who also wrote a letter to the jurors. Hollis’s letter was respectful and courteous. It influenced the jurors to be willing to serve again.
If, however, the lawyers’ motives are irrelevant, then it could be argued that Hollis’s letter, like Benton’s, had improper effects on the same jurors, making them more likely to favor him, his firm, or his clients in future cases. What is sauce for the goose is sauce for the gander. See Lewis v. Peoples Savings and Loan, 463 S.W.2d 284, 287 (Tex.Civ.App. — Austin 1971, writ ref d n.r.e.).
The bane of Benton’s letter was not that it influenced the jurors to be partial to one side or the other in a future case. The substantive evil of Benton’s letter was its “abusive and insulting” character. 980 S.W.2d at 433. Nowhere, however, does the “influence” provision distinguish “encouraging” speech from “abusive and insulting” speech. Both kinds of speech are undoubtedly influential, and both kinds of speech may be tainted with improper, self-serving motives.
In Cox v. Louisiana, 379 U.S. 536, 557-58, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the Supreme Court held that a broad prohibitory statute susceptible to selective enforcement was the equivalent of a statute “providing a system of broad discretionary licensing power” — the classic prior restraint. The Committee for Lawyer Discipline, with the Court’s approval, acts like an administrative censor, selectively enforcing Rule 3.06(d) against speech it deems to negatively influence ex-jurors. See Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (condemning prior restraints because “the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable”). These characteristics of Rule 3.06(d), which resemble those of a prior restraint, belie the Court’s attempt to distinguish Davenport.
Ill
Rule 3.06(d), however, does not withstand either the compelling interest test applicable to political speech or the substantial interest test of Gentile. While insulting remarks to the members of a discharged jury are repugnant, it is an exaggeration to hold that they are substantially likely to materially prejudice an adjudicative proceeding. Benton’s letter to the discharged jurors did not threaten anyone’s fair trial rights. It did not disrupt or burden any other court proceeding, much less his own. While Benton’s letter' justifiably offends this Court, it had at most a remote potential impact on the administration of justice.
When negotiating our citizens’ precious First Amendment freedoms, courts should be careful not to overstate the supposed harms caused by the exercise of those freedoms. Cf. Ex Parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104, 105 (1935) (“It appears to us that respondent unduly stresses the tenden-*452ey of accurate newspaper reports of public trials to embarrass the administration of justice.”) (emphasis added); Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting) (“[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required_”). This is especially true where political speech is at issue. See, e.g., In re Primus, 436 U.S. at 434-36, 98 S.Ct. 1893 (holding that “[w]here political expression or association is at issue,” proscriptions on lawyer speech cannot be justified by a “very distant possibility of harm”); NAACP v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (holding NAACP solicitation was constitutionally protected despite potential conflict of interest).
The Court reasons that a potential juror’s mere anticipation of critical post-verdict speech poses a substantial likelihood of materially prejudicing future adjudicative proceedings. According to the Court, “the threat of verbal attacks by disappointed lawyers creates an atmosphere of intimidation during trial that can affect jurors’ impartiality.” 980 S.W.2d at 434.
Criticism, especially as harsh as Benton’s, is often unpleasant. Criticism prompts a wide range of reactions, from remorse to anger and intimidation to indignation, as diverse as the personalities subjected to it. But the danger is far-fetched that all six or twelve members of a jury panel, aware of some attorney’s tendency to verbalize his contempt for jurors, will be intimidated into reaching a verdict that avoids his or her criticism. It is common sense that acting contemptuously toward juries is more likely to diminish rather than enhance a lawyer’s chances of gaining a favorable verdict. Indeed, the juror who testified of her reluctance to serve on future panels also stated that “[a]s a direct result of Benton’s letter,” she was “now supporting lawsuit abuse reform.”
The Court’s more plausible concern is that post-verdict speech critical of jurors discourages them and others who hear of such diatribes from further jury service. But these evils are not without alternative remedies. The salutary speech of judges and other “officers” of the court may overcome the baneful influences of a lawyer’s ill remarks. See Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”) (emphasis added). Moreover, the exercise of moral suasion from the bench and the bar will deter most other lawyers from imitating Benton’s contemptuous behavior. See Texas v. Johnson, 491 U.S. at 419, 109 S.Ct. 2533 (“The way to preserve the flag’s special role is not to punish those who feel differently [but] to persuade them that they are wrong.”). Our federal and state constitutions protect Benton’s right to ridicule others, but they also protect the rights of the public, the bar, and our courts to criticize him.
Even if the possibility of receiving a rude letter so deterred the population of potential jurors that no jury could be assembled, I am not convinced that it would justify a complete prohibition on such communications. Cf. Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting) (arguing that free speech should prevail even if it finds its meaning and consequence in a proletarian dictatorship). In a similar vein, others have argued that communist speech discourages democratic values, see Gitlow, 268 U.S. at 667, 45 S.Ct. 625 (holding that communist speech was subversive of representative democracy), and that flag-burning is so demoralizing that it threatens national security. See Texas v. Johnson, 491 U.S. at 426, 109 S.Ct. 2533 (Rehnquist, J., dissenting) (discussing the demoralizing effect of flag desecration on American troops). But the speech of communists and flag-burners, however inconsistent with bedrock American values, has been protected. I cannot believe that Benton’s letter poses any greater threat.
When a court considers whether to impose or enforce a prophylactic rule against speech, *453it should at the very least discount the supposed gravity of the evil by its improbability. See United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950) (L.Hand, J.) (“In each case [a court] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”), aff'd, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (adopting Judge Hand’s famous formula). It is extremely unlikely that Benton’s letter, by itself, presents a substantial threat to the administration of justice. Such vitriol would have to be widely imitated to create a “substantial” threat to the jury system. However, this is equally improbable.
In his affidavit and at his disciplinary hearing, Benton stated that he wished he had never sent the letter, explaining:
My position is, first of all, that I don’t do myself — in a small community like this, I do not do myself any favors by writing angry, critical letters to jurors. Even if I believe they are wrong, I don’t help myself at all by criticizing them, because they may be on a jury or they may be a future client. They may influence future clients.
The vast majority of lawyers have enough decorum and good sense not to antagonize jurors, even when they are upset with their verdicts. The trial judge in the underlying case, admitted to the bar in 1949, testified that in all of his years in practice and as a judge, only one other time had he encountered a lawyer who improperly contacted a juror. Attorneys who antagonize jurors undercut their professional reputation and economic self-interest, especially in a small community, so few can be expected to do so. Only a very pessimistic view of the bar justifies the belief that a prophylactic rule is necessary in order to stop others from repeating Benton’s obnoxious example. See Zauderer, 471 U.S. at 648, 105 S.Ct. 2265 (“[W]e are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule.”). We should employ moral suasion, not just legal rules, to deter attorneys from behavior unbecoming of the profession.
CONCLUSION
The Court’s holding today strikes out part of Rule 3.06(d) but preserves the rule’s sanction on “a substantial amount of expression that — however repugnant — is shielded by the First Amendment.” R.A.V., 505 U.S. at 413, 112 S.Ct. 2538 (White, J., concurring in the judgment). Five years ago a plurality of this Court wrote:
Today our court continues to favor the growth and enhancement of freedom!,] not its constraint. The fact that vigorous debate of public issues in our society may produce speech considered obnoxious or offensive by some is a necessary cost of that freedom. Our Constitution calls on this court to maintain a commitment to expression that is strong and uncompromising for friend and foe alike.
Ex Parte Tucci, 859 S.W.2d 1, 8 (Tex.1993) (opinion of Doggett, J.). I hope today’s opinion proves to be only a narrow exception to that trend.
I dissent.