491 F.Supp.3d 12
E.D. Pa.2020Background
- Pennsylvania amended Pa.R.P.C. 8.4 to add paragraph (g) and two comments, effective Dec. 8, 2020, making it professional misconduct for a lawyer "in the practice of law, by words or conduct, knowingly [to] manifest bias or prejudice, or engage in harassment or discrimination," and listing protected characteristics. The rule also states it does not preclude "advice or advocacy consistent with these Rules."
- Plaintiff Zachary Greenberg, a Pennsylvania lawyer who speaks at CLEs and public events on controversial First Amendment and related topics and who sometimes repeats or discusses epithets/slurs in that context, brought a pre-enforcement challenge alleging the Amendments are vague, overbroad, and constitute content- and viewpoint-based discrimination.
- The Office of Disciplinary Counsel (ODC) investigates complaints and may commence disciplinary proceedings under the Rules of Professional Conduct and Rules of Disciplinary Enforcement; disciplinary investigations and hearings can be burdensome even if they end without sanction.
- Defendants moved to dismiss for lack of standing and on the merits; Plaintiff moved for a preliminary injunction to block the Amendments before they took effect.
- The district court found Greenberg had Article III standing based on an objectively reasonable chill and credible threat of disciplinary investigation, and that the Rule regulates speech ("words") beyond the narrow professional contexts where speech may be more closely regulated.
- The court held Rule 8.4(g) and Comments 3–4 are viewpoint-based and content-based restrictions that violate the First Amendment, and granted a preliminary injunction; the court also denied the motion to dismiss as to the vagueness claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for pre-enforcement challenge | Greenberg will self-censor and faces a credible threat of disciplinary complaint/investigation from repeating epithets or discussing controversial views at CLEs and events. | Risk is speculative: no prior enforcement, ODC discretion makes prosecution unlikely, speech falls within safe-harbor advocacy. | Greenberg has standing: alleged chilling is objectively reasonable, his intended speech is arguably proscribed, and there is a credible threat of enforcement. |
| Does Rule 8.4(g) regulate speech or only conduct? | Rule explicitly bans "words" that "manifest bias or prejudice," so it regulates speech (including use of slurs/epithets). | The Rule targets discriminatory conduct (including harassment) and thus regulates conduct, not protected speech. | The Rule regulates speech; the court rejects defendants’ conduct-only framing. |
| Is Rule 8.4(g) professional/less-protected speech permitting greater regulation? | Even if targeted at professionals, the Rule does not fall into the narrow categories where professional speech gets reduced protection. | States have broad power to regulate the legal profession and maintain courtroom integrity; professional speech can be regulated more strictly. | The court holds the Rule does not fit the limited categories for reduced protection; full First Amendment scrutiny applies. |
| Content/viewpoint discrimination and preliminary relief | The Rule disfavors "biased" or "prejudiced" messages while allowing tolerant/respectful speech—i.e., viewpoint-based suppression; plaintiff likely to succeed and faces irreparable First Amendment harm. | The Rule is viewpoint-neutral because it applies to all attorneys and aims to prevent discrimination/harassment, not censor ideas. | The court finds the Rule is viewpoint-based and presumptively unconstitutional; plaintiff likely to succeed and irreparable harm warrants a preliminary injunction. |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing doctrine: credible threat of enforcement and chilling can supply injury-in-fact).
- Matal v. Tam, 137 S. Ct. 1744 (2017) (government may not ban speech because it offends; prohibiting disparagement is viewpoint discrimination).
- Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (Court rejected a broad "professional speech" category and limited circumstances where professional regulation warrants lower scrutiny).
- In re Primus, 436 U.S. 412 (1978) (states’ power to regulate lawyers is not unlimited; broad prophylactic rules affecting expression are suspect).
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney speech in courtroom and in pending cases may be more regulable but restrictions are context-dependent).
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (distinguishes regulation of conduct from regulation of speech when conduct is merely carried out by language).
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (content-based regulations trigger exacting scrutiny due to risk of suppressing ideas).
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination forbidden even in limited public forums).
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (standing requires alleged injury be concrete and not speculative).
- Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (finding certain content-based restrictions on expressive content unconstitutional).