Lawyer speech codes enforce 'rigid ideological orthodoxy,' chill 'unpopular views,' SCOTUS told

Federal appeals court punished free-speech lawyer for amending his lawsuit to claim revised Pennsylvania ethics rule was still unconstitutional, outside briefs argue.
American Bar Association

Can states compel lawyers to give up their First Amendment rights, at least implicitly, as a condition of practicing law?

It's not a farfetched law school exam question but a live issue in desperate need of Supreme Court intervention, legal and policy advocacy groups said in friend-of-the-court briefs last week seeking reinstatement of a lawsuit against Pennsylvania's legal ethics rules.

The Manhattan Institute, Mountain States Legal Foundation, Southeastern Legal Foundation and former Trump administration Department of Education civil rights lawyer Hans Bader, a recurring Biden administration irritant, filed a joint brief.

The Institute for Faith and Family, Foundation for Moral Law and New Civil Liberties Alliance, which is challenging a somewhat different Connecticut legal ethics rule, each filed individual briefs.

Last summer the 3rd U.S. Circuit Court of Appeals overturned a lower court that blocked Pennsylvania's implementation of the American Bar Association's Model Rule 8.4(g), challenged by Foundation for Individual Rights and Expression lawyer Zach Greenberg.

"Any State Bar that adopts this rule is stepping into a hornet’s nest by regulating the content of speech, passing judgment on the popularity of political beliefs, and determining whether unpopular advocacy should be disciplined," according to the brief by North Carolina's IFF, which advocates for abortion restrictions and sex-based public restroom access among other causes.

If enforced in The Tar Heel State against IFF's executive director, a lawyer, the rule "could have a devastating impact" on its ability to carry out its mission by rendering "even the gentlest, most respectful expression of a 'politically incorrect' opinion on a sensitive matter" as harassment.

The foundation's brief argues the rule "was promulgated with the intent to suppress criticism of the LGBT agenda including advocacy of causes contrary to the LGBT agenda."

Even under the revised version of Pennsylvania's rule, an attorney could violate it by offering evidence on behalf of a client that "the LGBT lifestyle is unhealthy and/or immoral" or "the transgender lifestyle may be harmful to children," according to the foundation.

Under the initial provision, the Pennsylvania Supreme Court's Disciplinary Board prohibited unspecified conduct "related to the practice of law" – also undefined – that the lawyer "knows or reasonably should know is harassment or discrimination" on the basis of several protected traits including race, sexual orientation and gender identity.

Greenberg alleges the board could discipline him for quoting offensive language from First Amendment cases in his continuing legal education presentations, citing "audience members … who expressed offense at the language and topics" and a disciplinary investigation of 5th Circuit Judge Edith Jones for alleged racial bias in a law school speech.

The 3rd Circuit ruled Greenberg lacked legal standing because the Keystone State made the rule more specific after he sued and the board's chief disciplinary counsel said his CLE presentations weren't punishable.

The appeals court claimed the revised wording "arguably" did not cover Greenberg's speech, which he contested.

NCLA President Mark Chenoweth mocked the "standing gymnastics" of the 3rd Circuit in a statement Monday accompanying its brief.

Relying on "nonbinding, personal assurance" to Greenberg that he wouldn't get in trouble, and forcing him to show the case wasn't moot, "encourages government gamesmanship," the public interest law firm said.

It's a get-out-of-lawsuit-free card that lets defendants "purport to exempt anyone who threatened to sue, while leaving the Rule in place to chill everyone else’s speech," according to NCLA.

Without SCOTUS intervention, the 3rd Circuit ruling will halt "percolation of the underlying merits issues" in pre-enforcement challenges in its jurisdiction of Delaware and New Jersey, which have "antidiscrimination provisions in their rules of professional conduct," and the U.S. Virgin Islands, which "fully" adopted the ABA model rule, NCLA's brief says.

Its "conflation of strategic mooting with standing will also discourage courts across the country from vindicating the constitutional rights of harmed parties," the brief says.

Unlike legal ethics rules by Connecticut and New York also based on the ABA model rule, Pennsylvania's did not include limiting language or carveouts for particular forms of speech or settings such as CLE presentations.

Shortly after the 3rd Circuit threw out Greenberg's case, the 2nd Circuit suggested in oral argument it would go the other way and reinstate NCLA's lawsuit against Connecticut's rule, which limits harassment to "severe or pervasive" conduct, also dismissed for lack of standing.

The 2nd Circuit noted the Constitution State's officials hadn't made the same representation of non-punishment as the chief disciplinary counsel in Pennsylvania. The docket shows no activity since that Sept. 8 hearing, meaning no direct circuit split yet that could draw SCOTUS interest.

Greenberg's lawyers at the Hamilton Lincoln Law Institute filed their petition to SCOTUS Jan. 31, arguing the 3rd Circuit punished Greenberg for amending his lawsuit to allege the revised Pennsylvania rule was still unconstitutional.

The Philadelphia-based appeals court ignored a 200-year-old precedent written by Chief Justice John Marshall, that jurisdiction "depends upon the state of things at the time of the action brought" and "cannot be ousted by subsequent events," the petition says.

Pennsylvania "strategically" disavowed the rule's application to Greenberg "after over a year of litigation … an aborted appeal" and finally "non-material revisions" that were missing the "gloss" the disciplinary counsel had put on the rule.

The 3rd Circuit did "more than reopen the door to gamesmanship. It blows the door off its hinges by demanding the opposing party prove non-mootness," a particular challenge for student lawsuits against universities, the petition says: "Jurisdictional questions ought not turn on how many angels dance on the head of a pin."

The Pennsylvania rule "enforces a rigid ideological orthodoxy" that will invariably be enforced by "low-level officials on an ad-hoc basis," says the joint brief led by the Manhattan Institute.

Without the "severe or pervasive" qualifier in Connecticut's rule – a threshold "normally required by federal law to constitute a hostile work environment" – the rule leaves speakers "to guess what words or phrases will constitute harassment or discrimination," the brief says.

"Even with an intent test" in its current form, the rule would punish "speech that lacks malicious intent" such as "reading aloud racial epithets from a case decided by this Court," according to the groups.

The brief's co-counsel "had a 'lived experience' with free-ranging harassment and anti-discrimination policies that chill speech and embroil people in Kafkaesque inquisitions," it says, referring to Georgetown's four-month investigation of Ilya Shapiro for his self-described "inartful tweet" about President Biden's pledge to nominate a black woman for SCOTUS.