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Attorneys have free speech rights. I’m suing to prove it.

Federal appellate court to decide whether Pennsylvania’s revised Rule 8.4(g) is a restrictive, unconstitutional speech code for attorneys or a valid ban on harassment and discrimination
Zach Greenberg

FIRE Senior Program Officer Zach Greenberg.

What are the rights of those who defend our rights? Do lawyers surrender their First Amendment freedoms when they pass the bar? When does zealous advocacy turn into harassment or discrimination? 

These are some of the questions I hope to see resolved in my lawsuit against the Disciplinary Board of the Supreme Court of Pennsylvania, whose rules regarding professional conduct chill the protected speech of the very people tasked with defending free speech rights.

For the first time, a federal appellate court will rule on the clash between the First Amendment and a new spate of restrictive ethical rules for attorneys advanced by the American Bar Association. The U.S. Court of Appeals for the Third Circuit will decide whether Pennsylvania’s revised Rule of Professional Conduct 8.4(g), designed to address harassment and discrimination in the legal profession, is a paternalistic speech code or a necessary restraint on attorney misconduct. 

For my lawsuit, when it comes to lawyers suing lawyers, the devil is in the details. Rule 8.4(g) bans “conduct that is intended to intimidate, denigrate, or show hostility or aversion toward a person” or conduct “that a lawyer knows manifests an intention: to treat a person as inferior … [or] to disregard relevant considerations of individual characteristics or merit.” It applies not only in courtrooms where attorneys practice law, but also at “judicial boards, conferences or committees; continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered.” 

Violators face disbarment. 

If we are going to create more tolerant attorneys, we must do so without stifling their voices.

Why impose this rule? Proponents perceive a pressing need to address “illegal and inappropriate harassment taking place at firm outings, dinners and bar association events.” They claim the rule “addresses misconduct that is antithetical to the administration of justice: attorney words and actions that constitute improper discrimination or harassment.”

However, we cannot sacrifice free speech on the altar of propriety. With help from the Hamilton Lincoln Law Institute, I sued the Pennsylvania disciplinary board to prevent the rule from taking effect. 

We argued that the First Amendment does not allow the government to redefine harassment and discrimination to censor protected speech — even for a noble purpose. We explained how words that “denigrate, or show hostility or aversion” encompass merely offensive speech fully protected by the First Amendment. This rule, ostensibly targeting harassment and discrimination, punishes speech far beyond already unlawful conduct. 

Attorneys like me and my FIRE colleagues who fight for free speech would have a hard time doing so if we could lose our law licenses when our advocacy upsets disciplinary committees. If we are going to create more tolerant attorneys, we must do so without stifling their voices.

In March 2022, a federal district court agreed: 

[W]hile the Court admires the ideal of high standards of professionalism and benevolence which the Rule would have Pennsylvania lawyers aspire to, the state simply does not have the authority to police professionals in their daily lives to root out speech the state deems to be below “common decency.” 

The U.S. District Court of the Eastern District of Pennsylvania’s decision in Greenberg v. Goodrich reflects the core First Amendment principle that high-minded censorship is still censorship, and well-intentioned gag orders are still gag orders. 

That decision is now on appeal before the Third Circuit, where the judges heard oral arguments in April. Legendary litigator Lisa Blatt defended the rule as well within the constellation of existing limits on attorney free speech rights. Citing the dearth of examples of attorneys punished for their ideology, Blatt argued any chilling effect of the 8.4(g) is “frivolous” and warrants dismissal of my suit. Compared to already permissible regulations of attorney speech, Blatt claimed Pennsylvania’s rule is “quite, you know, generous towards attorney speech.” 

We’re confident the Third Circuit will see this rule as it is: a sloppy, paternalistic attempt to conform attorney expression to whatever is acceptable to the government. 

Then my attorney Adam Schulman explained how the First Amendment does not allow the government to hold speech codes over attorneys’ heads if disciplinary boards promise to use this power responsibly. A rule as vague and broad as 8.4(g) is presumptively chilling on attorneys seeking to express controversial viewpoints. Discussing the many instances where mere “​​verbalization of the epithets that are in those [First Amendment] cases were enough to register complaints and incur discipline,” Schulman explained how 8.4(g) calls for prosecution of attorneys merely for offending others. 

A decision is expected next month. 

The stakes are high, as demonstrated by the dozens of amicus briefs from bar associations, civil liberties organizations, religious groups, law professors, and other interested parties. If we win, this precedential decision will deter states and the ABA from adopting similar restrictions on attorney expressive freedoms. 

If we lose, it will pave the way for greater incursions on the First Amendment rights of attorneys — and perhaps other professionals. 

We’re confident the Third Circuit will see this rule as it is: a sloppy, paternalistic attempt to conform attorney expression to whatever is acceptable to the government. 

We’ll keep our readers updated. 

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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