The ABA’s attempt to impose its social justice speech code on the legal profession by way of Model Rule 8.4(g) was ugly enough, with only one state, Vermont, having embraced it. Of course, it wasn’t an ethics rule at all, but an effort by a progressive political organization to dictate ideology to its members. As a result, its members fled.

The notion of restricting professional speech had been an accepted restriction on the First Amendment, that by voluntarily becoming a member of a regulated profession, one chose to accept certain restrictions on speech. For example, lawyers were ethically prohibited from deceiving their clients, even though the deception involved nothing more than speech. Then again, such deception could also be deemed unprotected under the crime/fraud exception as well.

But Rule 8.4(g) was a flagrant rule having no bearing on the practice of law whatsoever. Only by some extraordinarily flexible mental gymnastics could one connect the dictates of controversial sexuality acceptance to the fertile octogenarian rule. That there were true believers was beyond doubt, and they were nasty scolds of limited intelligence and even less persuasion, but the Inquisitors never seem to be pleasant folks. It’s like a bona fide occupational qualification.

So the battle was joined over conversion of the Model Rule by state bar authorities. One is the ABA’s self-indulgence in importance. The other is real life, as contrary to the grasp of the public, and most journalists, the ABA is just a no-account membership organization. And the ABA has fared just as poorly with state bars as it has with members. And with its judicial ratings, but that’s another story.

As Josh Blackman writes, the lines in this battle have shifted markedly, perhaps terminally, following the Supreme Court’s decision in National Institute of Family and Life Advocates v. Becerra.

In recent years, several circuit courts of appeals have strictly regulated speech associated with a regulated profession—that is “professional speech”—when “it involves personalized services and requires a professional license from the State.” Id. at 2375. However, such a regime, the Supreme Court explained, “gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” Id. The Court expressed caution with applying laxer scrutiny to so-called “professional speech,” as that standard “would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others.” Id. at 2375 (emphasis added). Stated simply, the government lacks an “unfettered power” to regulate the speech of “lawyers,” simply because they provide “personalize services” after receiving a “professional license.”

There are two aspects of this concern worth noting. The first is use of professional licensing as a means of imposing speech codes, rather than serving legitimate ends. While it’s one thing to license lawyers to assure a minimum degree of competence, it’s another to do so for the primary purpose of compelling lawyers to be politically correct.

The second aspect is “unfettered power,” as opposed to fettered power. Restricting speech directly involved in the practice of law is very different than a generic speech code to promote an ancillary ideology that has no particular bearing on the performance of the regulated job. The ABA wanted lawyers to be leaders in non-discrimination, which was nice but no different than leaders in not harming animals by becoming vegans, or leaders in eliminating global warming by only driving Priui. To be “fettered” by directly relevant limits is one thing, but once restrictions become untethered from the profession itself, there’s no limit to where they could go.

The Court identified two narrow exceptions to this rule, neither of which turned on the fact that professionals were speaking.” Id. at 2372. In the first circumstance, the Court has “applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’” Id. at 2372 (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)). This first condition is not relevant to the Proposed Amendments: Speech uttered “in the practice of law” does not “require professionals to disclose factual, noncontroversial information.”

Second, the Court noted that “States may regulate professional conduct, even though that conduct incidentally involves speech.” Id. at 2372. This standard is directly relevant to the proposed rule: the state can “regulate professional conduct . . . that . . . incidentally involves speech,” but it cannot regulate speech that incidentally involves professional conduct. The Proposed Amendment, by its own terms, straddles that line. It applies to both “conduct” “in the practice of law” and “words” (that is speech|) “in the practice of law.” If the Board struck the phrase “words,” and focused solely on “conduct” “in the practice of law,” the Proposed Rule would potentially fall within the second exception identified in NIFLA. But as drafted, the regulation of “words” would be subject to traditional strict scrutiny.

The holding in NIFLA, as Josh notes, does not eliminate the ability of state regulators to restrict speech per se, as applied to “factual, noncontroversial” speech. Then again, what’s factual, what’s noncontroversial, is up for grabs these days. Completely anodyne words a year ago will bring a mob down on you in a flash today, and “truth” is regularly substituted for objective fact in the minds of the unduly passionate. These words may not have been the best choices to make this point.

But there remains a distinction, expressed somewhat cutely, that “the state can ‘regulate professional conduct . . . that . . . incidentally involves speech,’ but it cannot regulate speech that incidentally involves professional conduct.” While the speech/conduct dichotomy has always presented a difficult issue, as most things involve a bit of both to some extent, the NIFLA decision makes clear that nonfactual, controversial speech restrictions that primarily regulate speech and only touch on conduct are unconstitutional.

When applied to Rule 8.4(g), which is as much of a speech code as possible, the argument that this is a violation of the First Amendment rights of lawyers, which was extremely strong before, now takes on force that should be overwhelming to state bar regulators. No matter how strongly the social justice warriors of the ABA believe it’s the right thing to do, state bars can’t constitutionally force lawyers to only speak happy words.