593 F.Supp.3d 174
E.D. Pa.2022Background
- Plaintiff Zachary Greenberg, a Pennsylvania-licensed attorney and CLE speaker, challenged Pennsylvania Rule of Professional Conduct 8.4(g) (adopted after notice-and-comment and later revised) as violating the First and Fourteenth Amendments before it took effect.
- The Board initially adopted a version of ABA Model Rule 8.4(g) (the "Old Amendments") that prohibited, in the practice of law, words or conduct that "manifest bias or prejudice"; the Pennsylvania Supreme Court later issued revised text and comments (the "Amendments"/"Rule").
- The Old Amendments prompted this pre-enforcement suit; the district court previously granted Greenberg a preliminary injunction, finding a credible chill and viewpoint-based restriction; defendants appealed then voluntarily dismissed the appeal and revised the Rule.
- The Office of Disciplinary Counsel (ODC) submitted a declaration (Farrell Declaration) promising not to interpret the Rule to prohibit general discussion of case law or controversial positions and stating it would not pursue discipline for the kinds of CLE speech Greenberg described.
- The parties filed cross-motions for summary judgment. The court considered standing and mootness (including voluntary cessation and the Farrell Declaration), then ruled on the merits: First Amendment (viewpoint/content discrimination; professional-speech doctrine) and Fourteenth Amendment void-for-vagueness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Mootness: Does Greenberg retain a live controversy after the Rule was revised and ODC declared a narrow non-enforcement position? | Greenberg argues he had standing at suit commencement (credible threat, chill) and post-adoption changes raise mootness issues that defendants must prove; the Farrell Declaration and revision do not eliminate risk (investigation chill; Board not bound). | Defendants argue the Farrell Declaration and revised Rule eliminate any credible threat of enforcement against Greenberg, so the case is moot. | Court: Greenberg had standing at suit commencement; defendants failed to meet heavy burden to show mootness (voluntary cessation exception applies). The controversy remains live. |
| First Amendment — Speech vs. Conduct: Does Rule 8.4(g) regulate speech (requiring strict scrutiny) or only conduct with incidental speech effects (lesser review)? | Greenberg: Rule targets speeches/communications at CLEs and similar contexts and uses terms ("denigrate," "hostility") that regulate expressive content; it therefore regulates speech. | Defendants: Rule targets discriminatory/harassing professional conduct; any burden on speech is incidental and within state's broad power to regulate the legal profession. | Court: Rule regulates speech on its face (comments expressly include speeches/CLEs); professional-speech exceptions do not permit this breadth; full First Amendment protection applies. |
| First Amendment — Viewpoint/Content Discrimination: Is Rule 8.4(g) viewpoint- or content-based and thus subject to strict scrutiny? | Greenberg: Definitions ("denigrate," targeting protected classes) turn on the message and the speaker's intent; Rule disfavors a subset of messages (offensive viewpoints). | Defendants: Rule is neutral and applies equally to all attorneys; targeting requirement prevents viewpoint discrimination; ODC limiting construction insulates against viewpoint bias. | Court: Rule constitutes viewpoint-based (and content-based) discrimination; it targets disfavored messages and cannot survive First Amendment exacting scrutiny. |
| Fourteenth Amendment — Vagueness: Are key terms ("harassment," "denigrate," "manifest an intention to treat a person as inferior") unconstitutionally vague? | Greenberg: Definitions are novel, subjective, and untethered to established law; they fail to give fair notice and invite arbitrary enforcement, chilling speech. | Defendants: Terms are familiar to attorneys; context and professional norms provide adequate notice; civil (not criminal) standard tolerates some imprecision. | Court: Rule is unconstitutionally vague under the Due Process Clause—definitions provide insufficient notice and encourage arbitrary enforcement. |
Key Cases Cited
- Matal v. Tam, 137 S. Ct. 1744 (2017) (government may not ban speech because it is offensive; "giving offense is a viewpoint")
- Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) (anti-harassment policy struck where it prohibited substantial protected expression; policing of purpose/intent problematic)
- DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (regulation that reaches expressive conduct without severity/pervasiveness requirement unconstitutionally burdens speech)
- Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (Supreme Court declined to recognize a distinct "professional speech" category that receives diminished First Amendment protection)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based laws presumptively unconstitutional and subject to strict scrutiny)
- NAACP v. Button, 371 U.S. 415 (1963) (state may not evade First Amendment limits by relabeling speech as professional misconduct)
- McCauley v. Univ. of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (vagueness and overbreadth concerns where terms like "offensive" are hopelessly ambiguous)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (defendant bears heavy burden to show that voluntary cessation moots claim)