Zachary Greenberg v. Jerry M. Lehocky, 81 F.4th 376

Pennsylvania Supreme Court adopted Rule of Professional Conduct 8.4(g) prohibiting, in the practice of law, "knowingly" engaging in harassment or discrimination based on listed protected characteristics and added comments excluding most out‑of‑context speech (e.g., many speeches/publications) from "practice of law."
Zachary Greenberg, a Pennsylvania lawyer who gives CLE presentations quoting offensive judicial language and advocating controversial First Amendment positions, sued claiming the Rule is vague and violates the First Amendment; he sought declaratory and injunctive relief.
The District Court preliminarily enjoined enforcement, finding Greenberg had standing and that the Rule raised constitutional problems; the Pennsylvania regulators thereafter amended the Rule’s commentary and the Chief Disciplinary Counsel declared Greenberg’s planned speech would not be treated as violative.
On cross‑motions for summary judgment the District Court again ruled for Greenberg and permanently enjoined enforcement; defendants appealed.
The Third Circuit reversed: it held Greenberg lacked Article III standing because his planned speech was not arguably proscribed by the Rule, defendants disavowed enforcement, there is little history of comparable discipline, and the attorney‑discipline process screens frivolous complaints—so any enforcement threat was speculative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing — injury in fact	Greenberg will be chilled and faces imminent disciplinary risk from Rule 8.4(g) for quoting epithets and advocating controversial views at CLEs	Rule does not arguably reach his planned speech; regulators disavow enforcement; process weeds out frivolous complaints	No standing; injury not concrete or imminent
Whether Rule 8.4(g) arguably bans Greenberg’s speech	Rule’s language could be read to prohibit offensive speech at CLEs, creating uncertainty	Rule applies only to knowing/intentional harassment or discrimination targeted at identifiable persons, not academic discussion	Rule, as written and interpreted, does not arguably proscribe his planned speech
Credible threat of enforcement	Past social and institutional pressures show officials may discipline offensive speakers	Chief Disciplinary Counsel formally disavowed enforcement for Greenberg’s conduct; no track record of comparable enforcement in PA	No credible threat; disavowal and lack of enforcement history defeat standing
Self‑censorship / chill	Fear of investigations and reputational harm causes Greenberg to alter or avoid speech	Any investigation is likely to be dismissed as frivolous without response; speculative burdens insufficient	Self‑censorship not objectively reasonable or fairly traceable to Rule 8.4(g); cannot confer standing

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (plaintiff must show injury that is concrete and imminently threatened; speculative chains do not suffice)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (establishes injury‑in‑fact, traceability, redressability requirements)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre‑enforcement standing when plaintiff faces credible threat of enforcement)
Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988) (recognized chilled speech/self‑censorship as cognizable harm when objectively reasonable)
Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018) (official disavowal and notice can defeat a credible threat of enforcement)
Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020) (pre‑enforcement standing where official statements implied enforcement despite disavowals)
Wilson v. State Bar of Georgia, 132 F.3d 1422 (11th Cir. 1998) (no standing where bar consistently stated rule did not apply to plaintiff’s conduct)