joined by SPECTOR and joined by GONZALEZ, Justices, as to Parts I and II, dissenting.
Today the Court holds that in some aspects Rule 3.06(d) is not void for vagueness. The Court concludes (1) that it can avoid holding “harass” vague by furthering defining the term, (2) that “embarrass” is facially vague, and (3) that “influence” is not vague. However, I believe that Rule 3.06(d) is unconstitutionally vague in all respects. Furthermore, because Rule 3.06(d) is unconstitutionally vague, and that conclusion disposes of the Commission’s appeal, the Court should not reach Benton’s First Amendment, Equal Protection, or overbreadth challenges. Because the Court concludes otherwise, I respectfully dissent.
I. STANDARD OF REVIEW
It is a basic principle of due process that a statute or regulation is void for vagueness if it does not sufficiently identify the conduct that it prohibits. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Unconstitutionally vague laws are void for three reasons: (1) to *454avoid punishing people for behavior that they could not have known was forbidden; (2) to avoid subjective enforcement of laws based on arbitrary or discriminatory interpretations by government officials; and (3) to avoid any chilling effect on the exercise of free speech rights. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294.
The traditional test for vagueness in regulatory prohibitions is whether the regulation is “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” 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) (reviewing the constitutionality of former Texas Disciplinary Rule 1-102(A)(5)); Musslewhite v. State Bar, 786 S.W.2d 437, 441 (Tex.App. — Houston [14th Dist.] 1990, writ denied) (reviewing the constitutionality of former Texas Disciplinary Rule 2-101). Also important is the particular context in which the regulation applies. See Gentile v. State Bar, 501 U.S. 1030, 1048, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Thus, when reviewing a disciplinary rule that only applies to attorneys, the “ordinary person” becomes the “ordinary lawyer.” See Howell, 843 F.2d at 208. The ordinary lawyer is different because lawyers have “the benefit of guidance provided by case law, court rules and the ‘lore of the profession.’ ” Howell, 843 F.2d at 208 (citing In re Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985)).
In analyzing statutes or rules, courts draw distinctions between civil and criminal statutes. In general, there is “greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In Texas, disciplinary proceedings are civil in nature. See State Bar v. Evans, 774 S.W.2d 656, 657 n. 1 (Tex.1989). However, there is a competing interest that requires this Court to review Rule 3.06(d) under a higher standard than normally applied to civil regulations.
The United States Supreme Court has held that when a regulation is capable of interfering with a party’s right to free speech, courts should “demand[] a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); see also Grayned, 408 U.S. at 109 n. 5, 92 S.Ct. 2294. The Supreme Court has stated that “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If ... the law interferes with the right of free speech ... a more stringent vagueness test should apply.” Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. 1186.
While courts have repeatedly held that a lawyer’s free speech rights can be restricted more than that of the ordinary person, this does not mean that the First Amendment does not constitutionally protect a lawyer’s speech. See Gentile, 501 U.S. at 1071, 111 S.Ct. 2720. “[A] lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice.” In re Sawyer, 360 U.S. 622, 666, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Frankfurter, J., dissenting). Thus, though the state may regulate a lawyer’s speech, his or her speech is nonetheless constitutionally protected speech.
Here, the Court recognizes that Rule 3.06(d) is capable of interfering with lawyers’ free speech rights and that Benton’s letter was political speech. 980 S.W.2d 436. And, though the Court concludes that Rule 3.06(d) is a constitutional regulation of speech, that does not change the fact that the Rule is capable of interfering with speech. Therefore, irrespective of the Rule’s civil nature and irrespective of whether Rule 3.06(d) is a constitutionally permissible restriction on speech, the more stringent void-for-vagueness standard applies and greater degree of specificity is required. See Smith, 415 U.S. at 572-73, 94 S.Ct. 1242; see also Gentile, 501 U.S. at 1051, 111 S.Ct. 2720 (concluding that though a lawyer disciplinary rule was a constitutional restriction on speech, a more stringent void-for-vagueness standard applied because the rule prohibited speech).
*455The Commission argues that because Benton’s conduct clearly violated Rule 3.06(d) and he admitted attempting to influence the jurors that this Court should preclude Benton from challenging Rule 3.06(d) for vagueness. The Commission relies on Village of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186, to support its argument. But, Village of Hoffman Estates did not involve a statute interfering with First Amendment rights. Village of Hoffman Estates states that “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Village of Hoffman Estates, 455 U.S. at 495 n. 7,102 S.Ct. 1186 (emphasis added). However, the United States Supreme Court has held in other cases that when a statute purports to prohibit speech, a defendant may challenge it for vagueness though the statute is not vague as applied to the defendant’s conduct. See Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (White, J., dissenting). Otherwise, the “continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Coates, 402 U.S. at 620, 91 S.Ct. 1686 (White, J., dissenting); see also Gooding, 405 U.S. at 521, 92 S.Ct. 1103.
II. FACIAL VAGUENESS CHALLENGE
A statute or regulation is vague on its face not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, “men of common intelligence must necessarily guess at its meaning.”
Coates, 402 U.S. at 614, 91 S.Ct. 1686 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Rule 3.06(d) provides:
After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of the jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
Tex. DISCIPLINARY R. PROf’l Conduct 3.06(d) (1990).
Neither Rule 3.06(d) nor its comments define “harass,” “embarrass,” or “influence.” Additionally, Texas courts have never interpreted Rule 3.06(d). Nationwide, nineteen other states have rules the same or similar to Rule 3.06(d).1 However, only a few cases have applied or discussed the Rule. Of the cases that did discuss the Rule, none dealt with its constitutionality. See Elisovsky v. State, 592 P.2d 1221 (Alaska 1979); Lind v. Medevac, Inc., 219 Cal.App.3d 516, 268 Cal. Rptr. 359 (Cal.Ct.App.1990); In re Respondent A, 1 Cal. State Bar Ct.Rptr. 255 (Cal. Bar Ct.1990); In re Berning, 468 N.E.2d 843 (Ind.1984); State v. Socolofsky, 233 Kan. 1020, 666 P.2d 725 (1983); Commonwealth v. Solis, 407 Mass. 398, 553 N.E.2d 938 (1990); In re Hansen, 318 N.W.2d 856 (Minn.1982); Willoughby v. City of Oklahoma City, 706 P.2d 883 (Okla.1985); State v. Thomas, 813 S.W.2d 395 (Tenn.1991); State v. McCarter, 1990 WL 166614 (Tenn.Crim.App.1990). Consequently, these cases provide little, if any, guidance.
The Commission has not offered any insight to interpreting the terms “harass,” “embarrass,” or “influence.” Instead, the Commission simply claims that an ordinary lawyer should understand what each term means. Thus, I must look to the terms’ ordinary meaning and the interpretation courts have given analogous regulations. See Grayned, 408 U.S. at 104, 92 S.Ct. 2294.
A. HARASS AND EMBARRASS
Black’s Law Dictionary defines “harassment” as “words, gestures and actions which tend to annoy, alarm and abuse (verbally) *456another person.” Black’s Law Dictionary 717 (6th ed.1991). Generally, harassment is a course of conduct or repeated action. See Black’s Law Dictionary 717 (6th ed.1991); WebsteR’s New InteRnational Dictionary 1136 (2d ed.1960). The term “embarrass” implies some influence that makes one feel uneasy, usually in the presence of strangers. See Webster’s New International DictioNARY 835 (2d ed.1960). The problem with these definitions is that they are inherently vague. See generally Kramer v. Price, 712 F.2d 174, 178 (5th Cir.1983) (vacated on rehearing after statute repealed) (stating that there is an inherent vagueness in attempting to define what annoys people). The definitions show that both “harass” and “embarrass” are based on an individual’s subjective feelings. Thus, what might harass or embarrass one person may not harass or embarrass another. See Coates, 402 U.S. at 614, 91 S.Ct. 1686.
Other Texas statutes contain the terms “harass” or “embarrass.” See, e.g., Tex. Fam. Code § 85.022 (protective orders); Tex. Fam. Code § 156.005 (frivolous filing of suits for modifying parent-child relationship); Tex. Fin.Code § 392.302 (debt collection); Tex. Pen.Code § 42.07 (anti-stalking law and telephone harassment law). However, courts have not defined the terms as used in these statutes either.
Only one of these statutes has been attacked for vagueness — Texas Penal Code section 42.07 — and the attacks were not based on any of the terms at issue in Rule 3.06(d). See Long v. State, 931 S.W.2d 285 (Tex.Crim.App.1996). In Long, the defendant attacked the 1993 stalking statute, section 42.07(a) of the Texas Penal Code, claiming that it was unconstitutionally vague.2 The Court of Criminal Appeals struck the statute down for vagueness, but specifically based its decision only upon the words “annoy” and “alarm.” See Long, 931 S.W.2d at 289. The Court of Criminal Appeals reasoned that these terms were unconstitutionally vague because the statute (1) did not specify whose sensitivities had to be offended and (2) lacked an objective standard for measuring whether conduct was annoying or alarming. See Long, 931 S.W.2d at 288. While the Court of Criminal Appeals did not rule on the terms “harass” or “embarrass,” it did state that they too “are susceptible to uncertainties of meaning.” Long, 931 S.W.2d at 289.
Other courts have also struck down statutes for using the term “annoy” or “alarm.” These cases are instructive because the terms “annoy” and “alarm” are included in the definition of harass. In Coates, 402 U.S. at 611, 91 S.Ct. 1686, the United States Supreme Court reviewed a statute that prohibited people from assembling and conducting themselves in an annoying manner.3 The Supreme Court concluded that the term “annoy” did not provide a standard of conduct to which a person could conform and thus, the statute was vague. In essence, whether a person committed an offense depended on the sensitivities of some unknown person. See Coates, 402 U.S. at 614, 91 S.Ct. 1686. Likewise, the Fifth Circuit struck down a predecessor to section 42.07 because the *457term “annoy” allowed enforcement officers too much discretion in determining what was annoying and provided no notice to the common person of what conduct the statute prohibits.4 The Fifth Circuit, in line with other courts, was concerned that “annoy” was a subjective feeling and relied on the sensitivities of an unknown individual. See Kramer, 712 F.2d at 177-78.
Courts differ about whether the term “harass” is vague. In State v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996), the Kansas Supreme Court held that the term “harass” as used in a stalking statute was vague.5 The court reasoned that because the statute did not define the term “harass” in relation to an objective standard, the statute did not specify a standard of conduct. See Bryan, 910 P.2d at 218. Furthermore, the court noted that under a subjective standard one must ask: “Will this person whom I intend to follow be seriously alarmed, annoyed, or harassed by my act? If so, then a crime will be committed.” Bryan, 910 P.2d at 220.
On the other hand, some courts have determined that the term “harass” is not vague. In State v. Hoffman, 149 N.J. 564, 695 A.2d 236 (1997), the New Jersey Supreme Court reviewed a harassment statute.6 The defendant challenging the statute had been convicted for harassment because he tore up two child support orders and mailed the pieces to his ex-wife. In holding that the term “harass” was not vague, the court stated that “the specific state of mind required [by statute] ... serves to clarify any vague phrases.... ” Hoffman, 695 A.2d at 245. Additionally, the court noted that the statute specified the conduct that was prohibited. Hoffman, 695 A.2d at 245-46. The court was initially concerned that the phrase “any other manner likely to cause annoyance or alarm” was too broad. However, the court applied the concept of ejusdem generis and determined that the phrase was intended to prohibit conduct that would intrude upon a person’s “legitimate expectation of privacy.” Hoffman, 695 A.2d at 246. In reaching this conclusion, the court reasoned that the phrase was a general prohibition following specific prohibitions. Therefore, the phrase should be interpreted consistent with the specific prohibitions — proscribing interference with a persons right to privacy.
In State v. Martel, 273 Mont. 143, 902 P.2d 14 (1995), the Montana Supreme Court found that the term “harass” as used in a stalking statute was not vague because the statute included a specific mental state.7 The court *458stated that the United States Supreme Court has long recognized that “the requirement of a mental state to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.” Martel, 902 P.2d at 19-20 (citing Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). In a similar ease, a Pennsylvania state court reviewed Pennsylvania’s stalking statute and reached the same conclusion. The court reasoned that a party who acts intentionally cannot claim confusion about what conduct the statute prohibits. See Commonwealth v. Hendrickson, 453- Pa.Super. 533, 684 A.2d 171, 178 (1996).
The United States Supreme Court has held that statutes lacking any objective standard do not give notice of the conduct prohibited and are open to arbitrary and discriminatory enforcement. See Coates, 402 U.S. at 614, 91 S.Ct. 1686; accord Kramer, 712 F.2d at 178.8 Conspicuously missing from Rule 3.06(d) is a reasonable person or reasonable juror standard for determining what is harassing or embarrassing. The Rule prohibits a lawyer from communicating in a manner “calculated merely to harass or embarrass the juror.” However, these terms deal with subjective feelings, and something that harasses or embarrasses one person may not necessarily harass or embarrass another. See Coates, 402 U.S. at 614, 91 S.Ct. 1686. That the Rule regulates lawyers does not make the terms any clearer because the law does not generally define the terms “harass” and “embarrass.” Therefore, a lawyer can only rely on the terms’ ordinary meanings and does not have any more of an advantage than the common person to know what may or may not harass or embarrass a person.9 See generally Gentile, 501 U.S. at 1049, 111 S.Ct. 2720 (concluding that the terms “general” and “elaboration” did not have “settled usage or tradition of interpretation of in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of general to the forbidden sea of elaborated.”).
Further complicating matters is that Rule 3.06(d) does not state by whose sensitivities we judge the conduct. See Coates, 402 U.S. at 614, 91 S.Ct. 1686. An argument could be made that the comments to the Rule establish jurors as the persons upon whose sensitivities a violation depends. The comment makes a general statement that “[w]hen extrajudicial communication with a juror is permitted by law, it should be made ... with deference to the personal feelings of the juror.” Tex. DISCIPLINARY R. PROF. Conduct 3.06 cmt. 1. Yet, this comment seems to apply only to extrajudicial communication the Rule permits, not those that violate Rule 3.06(d). However, even if the Rule does establish that the Commission should use each particular juror’s sensitivities to decide whether a lawyer has violated the Rule, there is still the problem that a violation relies on the subjective feelings of each discharged juror. The Rule simply does not establish any objective reasonable person or reasonable juror standard. See Coates, 402 U.S. at 613, 91 S.Ct. 1686.
The Court tries to bootstrap an objective standard into the Rule by concluding that the term “calculated” means likely. However, many cases have decided otherwise. These cases hold that the word’s connotation of conscious analysis indicates that calculated refers to a specific mental state of knowledge or intent. See Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1191 (5th Cir.1980); Herrick v. Superior Court, 188 Cal.App.3d 787, 233 Cal.Rptr. 675, 676 (1987); Moody v. Hurri*459cane Creek Lumber Co., 290 Or. 729, 625 P.2d 1306, 1310 (1981). I agree with these courts — the term “calculated” as used in Rule 3.06(d) means specific intent.
Statutes with a specific intent requirement can avoid a vagueness problem. However, that is not always the case. In Smith, the Supreme Court stated that irrespective of whether the statute required the prohibited conduct to be intentional or inadvertent, the statute still did not clarify the prohibited conduct. Smith, 415 U.S. at 578-81, 94 S.Ct. 1242. Along the same line, the Fifth Circuit held that “specifying an intent element does not save [a statute] from vagueness because the conduct which must be motivated by intent, as well as the standard by which the conduct is to be assessed, remains vague.” Kramer, 712 F.2d at 178.
Importantly, the Long court noted that courts were more likely to determine that a specific intent requirement saved a statute from being vague when the First Amendment was not involved and courts reviewed the statute under a more deferential standard. See Long, 931 S.W.2d at 293 (discussing statutes that courts held not vague because of a specific intent requirement). In essence, when the First Amendment is implicated, courts are concerned with the possibility of chilling free speech and an intent requirement may not be enough to clarify vague terms. Thus, even with a specific intent requirement, people will steer far wider than necessary from the prohibited conduct. See Grayned, 408 U.S. at 109, 92 S.Ct. 2294.
Here, Rule 3.06(d) contains an intent requirement of “calculated to harass or embarrass.” Tex. Disciplinaby R. Professional Conduct 3.06(d) (1990). Yet, as in Smith and Kramer, the intent requirement here does not clarify what “harass” or “embarrass” means and does not give a lawyer any more notice about what conduct would harass or embarrass a juror. See Smith, 415 U.S. at 579-82, 94 S.Ct. at 1250-51; Kramer, 712 F.2d at 178. The Rule still applies a subjective standard of conduct and does not specify by whose sensitivities a lawyer’s actions are judged. Moreover, Rule 3.06(d) directly prohibits speech. And as stated in Long, when free speech is involved an intent requirement is generally not enough to clarify vague terms. See Long, 931 S.W.2d at 293. Accordingly, Rule 3.06(d)’s intent requirement does not clarify the terms “harass” or “embarrass” and cannot be used to save the Rule from vagueness.
While courts have allowed certain restrictions on lawyers’ speech, the rules regulating lawyers cannot be unconstitutionally vague. See Gentile, 501 U.S. at 1049-50, 111 S.Ct. 2720. Rule 3.06(d) does not state what conduct it considers harassing or embarrassing. Furthermore, the Rule does not set an objective standard for making that determination. Instead, a violation of Rule 3.06(d) rests entirely on the subjective feelings of some unknown person. Thus, Rule 3.06(d) is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates, 402 U.S. at 614, 91 S.Ct. 1686.
While the Court improperly concludes that “calculated” means likely, the Court still reaches the correct conclusion that “embarrass” is vague. However, the Court erroneously fails to recognize that “harass” suffers from the same pitfalls as “embarrass.” Even assuming that the Court’s definition of “calculated” is correct, the reasoning the Court applies to determine that “embarrass” is vague applies equally as well to the term “harass.”10 Just as with “embarrass,” “harass” is an entirely subjective feeling. What may harass one person may not harass another. To avoid concluding that “harass” is vague the Court decides to borrow harassment definitions from statutes outside of this state. Yet, just because other states have had the foresight to define the term “harass” does not save this Rule from vagueness. Rather, the fact that the Court deemed it necessary to look to statutes with specific definitions evinces the fact that “harass” as *460used in Rule 3.06(d), without any definition, is vague.
More importantly though, the Court’s added definition of “harass” also suffers severe vagueness problems. The Court borrows its definition from stalking statutes. These stalking statutes do not seek to regulate speech, but rather seek to regulate conduct. See, e.g., Johnson v. State, 264 Ga. 590, 449 S.E.2d 94, 96 (1994) (stating that the stalking statute does not prohibit conduct that is protected expression under the First Amendment); State v. Fonseca, 670 A.2d 1237, 1240 (R.I.1996) (stating that the defendant’s First Amendment interests were not threatened by the statute). Thus, the statutes that the Court uses to create its definition of harassment were all reviewed under a standard different from that which applies in this ease. As the Court of Criminal Appeals recognized: “If the First Amendment can be removed from the arena, a stalking statute can be evaluated under more deferential due process standards, and is thus more likely to survive scrutiny.” See Long, 931 S.W.2d at 293. If Rule 3.06(d) regulated only conduct, the term “harass” may very well not have been vague.
Here though, Rule 3.06(d) regulates speech. As stated earlier this requires the Rule to have a higher degree of specificity. See Smith, 415 U.S. at 573, 94 S.Ct. 1242.' In applying this heightened standard, the Court’s new definition for “harass” is still vague. First, the term “distress” falls prey to the same inherent vagueness problems as “harass” and “embarrass.” Simply, what may distress one person may not distress another. See Coates, 402 U.S. at 614, 91 S.Ct. 1686. Moreover, the statutes that the Court uses for creating its definition of “harass” either included specific conduct that would be considered harassing or provided an objective measure for determining what was harassing. See Snowden v. State, 677 A.2d 33, 36 n. 1 (Del.1996) (“ ‘Harass’ means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.”) (quoting 11 Del.Code § 1312A (b)(1)); Johnson, 449 S.E.2d at 95-97 (stating that the statute defines “harass” as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death of bodily harm to himself or herself or to a member of his or her immediate family_”) (quoting Ga.Code § 16-5-90); Fonseca, 670 A.2d at 1238 (“ ‘Harasses’ means an knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person and which services no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, or be in fear of bodily injury.”) (quoting R.I. Gen. Laws § 11 — 59— 1(2)); Luplow v. State, 897 P.2d 463, 465 (Wyo.1995) (“ ‘Harass’ means to engage in a course of conduct including but not limited to verbal threats, written threats, vandalism or nonconsensual physical contact_”) (quoting Wyo. Stat. § 6-2-506(a)(iii)). The Court’s definition conspicuously lacks this specificity.
Second, and perhaps more dangerous, is the no legitimate purpose prong of the “harass” definition. See Langford v. City of Omaha, 755 F.Supp. 1460,1464 (D.Neb.1989) (stating that the phrase “without purpose of legitimate communication” was unconstitutionally vague). Under this prong, the Commission is free to arbitrarily enforce the Rule because it can determine what communications are “legitimate” and what communications are not. Additionally, lawyers will be left to guess which communications serve a “legitimate purpose” and which communications do not. See Langford, 755 F.Supp. at 1464. The Constitution simply demands greater specificity. Accordingly, I do not believe that the Court’s new definition of “harass” passes constitutional muster and thus it cannot save Rule 3.06(d) from vagueness.
B. Influence
Rule 3.06(d) prohibits lawyers from communicating with discharged jurors in a man*461ner calculated “to influence [jurors’] actions in future service.” Tex. DISCIPLINARY R. Prof’l Conduct 3.06(d) (1990). But again, the Rule does not state what conduct it prohibits. For example, in Texas state courts, it is common practice for attorneys to send letters to discharged jurors thanking them for their service. I know of no lawyer that has been disciplined for sending a letter of this nature, even though it is obvious that these letters are sent to influence jurors in future jury service. However, in at least one other jurisdiction, the term “influence” prohibits these types of letters. Under Virginia’s rule precluding communication with jurors after their discharge, it is improper for a lawyer to send a letter to jurors thanking them for how they completed their service.11 The Virginia Ethics Committee was concerned that such a letter might create at least the appearance that a party was attempting to influence jurors’ future service. See Va.Code of Legal Ethios and unauthorized PRACTICE, Le. Op. No. 415 & 416 (1993). Thus, even within the legal profession, lawyers do not agree about what conduct Rule 3.06(d) prohibits.
However, the major problem with the term “influence” is not its failure to give notice of what conduct the Rule prohibits, but instead the danger of arbitrary and discriminatory enforcement of the Rule. See Kolender, 461 U.S. at 357-58, 103 S.Ct. 1855 (quoting Smith, 415 U.S at 574, 94 S.Ct. 1242) (“Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine ‘is not actual notice, but the other principle [sic] element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’”). When a statute fails to establish minimal guidelines for enforcement it is susceptible to arbitrary and discriminatory enforcement and is unconstitutionally vague. See Gentile, 501 U.S. at 1051, 111 S.Ct. 2720; Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294; Cox v. Louisiana, 379 U.S. 536, 557-58, 85 S.Ct. 453 (1965). In particular, courts have continually warned legislatures that statutes regulating First Amendment rights must contain guidelines for enforcement. Without these guidelines there is a serious risk that enforcers will exercise their own form of censorship or viewpoint discrimination. See, e.g., Kolender, 461 U.S. at 358, 103 S.Ct. 1855 (stating that the Supreme Court was concerned with the potential for arbitrary suppression of First Amendment liberties); Smith, 415 U.S. at 575, 94 S.Ct. 1242 (stating that standardless statutes allow “policemen, prosecutors, and juries to pursue them personal predilections”); Grayned, 408 U.S. at 113 n. 22, 92 S.Ct. 2294 (stating that the Supreme Court has “condemned broadly worded licensing ordinances which grant such standardless discretion to public officials that they are free to censor ideas and enforce their own personal preferences”). Under a facial challenge “[t]he question is not whether discriminatory enforcement occurred here ... but whether the Rule is so imprecise that discriminatory enforcement is a real possibility.” Gentile, 501 U.S. at 1051, 111 S.Ct. 2720. This case is an excellent example of how discriminatory enforcement under Rule 3.06(d) is in fact a reality.
Just like Benton, defense counsel in the underlying case sent a letter to the discharged jurors. His letter praised the jurors’ efforts and encouraged them to serve as jurors again in the future. And just like Benton, the defense lawyer testified that he intended to influence the former jurors in future jury service. Two former jurors who testified for the Commission stated that the defense lawyer’s letter was successful in influencing them to participate in future jury service. Yet, the Commission did not pursue disciplinary proceedings against the defense lawyer for his letter to the jurors. Moreover, the Commission called the defense lawyer as a witness against Benton. It is obvious that the Commission disciplined Benton merely because it did not like his letter’s content. Thus, this ease clearly illustrates “censorship through selective enforcement” *462and shows that discriminatory enforcement under Rule 3.06(d) is more than just a possibility. See Gentile, 501 U.S. at 1051, 111 S.Ct. 2720; Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294. Because Rule 3.06(d) lacks any enforcement guidelines and provides an opportunity for obvious and disdainful viewpoint discrimination, it is unconstitutionally vague.
Today the Court not only sanctions the Commission’s selective enforcement of Rule 3.06(d), but the Court itself engages in selective and arbitrary enforcement of the Rule. The Court begins with the improper premise that Rule 3.06(d) only punishes communications that are abusive and discourage future jury service. How the Court reaches this conclusion is beyond me. As stated above, the Rule does not define “influence.” No case law defines the term either. The Rule proscribes communications “calculated merely ... to influence [the juror’s] actions in future jury service.” Tex. DISCIPLINARY R. Prof. Conduct 3.06(d) (1990). There is no qualifying language that states that the influence must be encouraging or discouraging. The Court’s conclusion that the defense attorney’s encouraging letter does not fall within Rule 3.06(d)’s parameters merely highlights the problems with Rule 3.06(d). The Rule provides no standards for determining the prohibited conduct. Thus, while Court may want letters similar to the defense’s letter to fall outside the Rule’s purview, the Rule is simply too vague to reach that conclusion.
Without more specificity about what the term “influence” means, lawyers will be left to guess about what the Commission will deem improper and will be forced to “steer far wider of the unlawful zone ... than if the boundaries of the forbidden area were clearly marked.” Grayned, 408 U.S. at 109, 92 S.Ct. 2294 (internal quotations omitted). Thus, speech that is constitutionally permissible will necessarily be chilled. The Court’s conclusion that Benton should have been punished for sending the letter does not save the Rule from the dangers of vagueness — the Commission has unfettered discretion to wield the mighty sword of censorship against those ideas that it finds offensive.
III. CONCLUSION
I conclude that Rule 3.06(d) is unconstitutionally vague. Therefore, I would affirm the court of appeals without reaching Benton’s other challenges. I regret that my view holds that a rule this Court promulgated is unconstitutionally vague, but a careful analysis of the Rule and the applicable law leaves no other alternative. Because the Court decides otherwise, I dissent.
. Rule 3.06(d), as well as the similar rules in other states, is taken from the ABA Model Code of Professional Responsibility DR 7-108(D). All include the terms "embarrass,” "harass," and "influence” without definitions.
. Former section 42.07 provided:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
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(7)(A) on more than one occasion engages in conduct directed specifically toward the other person, including following that person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person;
(B) on at least one of those occasions by acts or words threatens to inflict bodily injury on that person or to commit an offense against that person, a member of that person’s family, or that person’s property; and
(C) on at least one of those occasions engages in the conduct after the person toward whom the conduct is specifically directed has reported to a law enforcement agency the conduct described by this subdivision.
Act of June 19, 1993, 73 rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3677-78, amended by Act of June 14, 1995, 74 th Leg., ch. 657, § 1, 1995 Tex. Gen. Laws 3625, 3625. The court focused its vagueness analysis on section (a)(7)(A).
. City ordinance § 901-L6 provided:
It shall be unlawful for three or more persons to assemble ... on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings.
Cincinnati, Ohio, City Ordinances § 901-L6 (1956).
. The version of section 42.07.that the court reviewed in Kramer provided:
(A) A person commits an offense if he intentionally:
(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a course and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient.
Act of January 1, 1974, 63 rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 956, amended by Acts of September 1, 1983, 68 th Leg., R.S., ch. 411, 1983 Tex. Gen. Laws 2204.
. Kansas statute 21-3438 provided:
(a) Stalking is an intentional and malicious following or course of conduct directed at a specific person when such following or course of conduct seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.
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(d) For the purposes of this section, 'course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of ‘course of conduct.'
Kan. Stat. Ann. § 21-3438 (1994).
. The statute provides:
[A] person commits a petty disorderly person offense if, with the purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.
N.J. Stat. Ann. § 2C:33-4 (West 1991).
. Montana's statute provides:
(1) A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly:
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(b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.
*458Mont.Code Ann. § 45-5-220.
. The Long court did note that the absence of a reasonable person standard is not necessarily fatal to a statute's constitutionally. If a statute contains other provisions, such as setting out specifically prescribed conduct, the offense might be sufficiently defined to avoid vagueness. See Long, 931 S.W.2d at 291.
. Courts have recognized that lawyers can determine what is "professional” conduct. See In re Snyder, 472 U.S. at 645, 105 S.Ct. 2874. However, the situation Rule 3.06(d) presents is different. To determine what is professional conduct, a lawyer can rely on a written code of conduct and years of education. Under Rule 3.06(d) a lawyer is not given similar guidance. Rule 3.06(d)’s violation depends upon the subjective feelings of some unknown individual. Therefore, a lawyer can only base his decision on his own knowledge of human kind and what may harass or embarrass a person.
. Interestingly, if the Court is correct that the term "calculated” means likely or intended, its conclusion simply adds to the Rule’s vagueness problem. It is even more difficult for a person to determine what will "likely” harass or embarrass a juror.
. Virginia Disciplinary Rule 7-107(C) is exactly the same as Texas Rule 3.06(d) and states that "the lawyer shall not ask questions or make comments to a member of that jury that are calculated to merely harass or embarrass the juror or to influence his actions in future jury service." Va.Code of Prof’l Responsibility DR 7-107.