Among his other duties, Zach Greenberg gives presentations for FIRE, the Foundation for Individual Rights in Education, which has its offices in Philadelphia for reasons that elude me. In giving presentations, he might have to say some “bad” words to make his point. Except the Pennsylvania Supreme Court adopted a version of the ABA’s model rule 8.4(g) to dictate that lawyer speech and conduct be sufficiently woke to avoid disbarment.
Plaintiff alleged specific examples of individuals filing disciplinary and Title IX complaints against speakers who were presenting on similar topics as those discussed by Plaintiff, which he alleges will “force[ him] to censor himself to steer clear of an ultimately unknown line so that his speech is not at risk of being incorrectly perceived as manifesting bias or prejudice.” Therefore, in addition to showing that the “chilling effect on his speech … is objectively reasonable,” Plaintiff has shown that he will “self-censor as a result.”
What are the chances that someone using a racial slur in the course of a presentation to students might result in cries of discrimination, harassment and, if they can figure out how to do it, a bar complaint?
Plaintiff has also clearly shown a likelihood that the activity in which he intends to engage is “arguably proscribed” by the Amendments. Plaintiff has alleged that he intends to mention epithets, slurs, and demeaning nicknames as part of his presentation on First Amendment and Due Process rights. Rule 8.4(g) explicitly states that it is attorney misconduct to, “by words or conduct, knowingly manifest bias or prejudice.” Both parties agree that the language used in Rule 8.4(g) mirrors Pennsylvania Code of Judicial Conduct Rule 2.3, which provides, in Comment 2, that “manifestations of bias include … epithets; slurs; demeaning nicknames; negative stereotyping ….”
Plaintiff has shown that by repeating slurs or epithets, or by engaging in discussion with his audience members about the constitutional rights of those who do and say offensive things, he will need to repeat slurs, epithets, and demeaning nicknames. This is arguably proscribed by Rule 8.4(g).
This gave rise to a problem for Zach, and so he, represented by Ted Frank and Adam Schulman, challenged the rule. And won.
Defendants effectively ask Plaintiff to trust them not to regulate and discipline his offensive speech even though they have given themselves the authority to do so. So, despite asking Plaintiff to trust them, there remains the constant threat that the Rule will be engaged as the plain language of it says it will be engaged.
It can hardly be doubted there will be those offended by the speech, or the written materials accompanying the speech, that manifests bias or prejudice who will, quite reasonably, insist that the Disciplinary Board perform its sworn duty and apply Rule 8.4(g) in just the way the clear language of the Rule permits.
Eastern District of Pennsylvania Judge Chad F. Kenney’s decision is quotable throughout, point by point, and worth reading. It goes beyond the arguments as limited by Zach’s standing to challenge the rule.
The Court recognizes that Pennsylvania has an interest in licensing attorneys and the administration of justice. However, contrary to Defendants’ contention, speech by an attorney or by a professional is only subject to greater regulation than speech by others in certain circumstances, none of which are present here…. In contrast, Rule 8.4(g) does not limit its prohibition of “words … [that] manifest bias or prejudice” to the legal process, since it also prohibits these words or conduct “during activities that are required for a lawyer to practice law,” including seminars or activities where legal education credits are offered. Rule 8.4(g) does not seek to limit attorneys’ speech only when that attorney is in court, nor when that attorney has a pending case, nor even when that attorney seeks to solicit business and advertise. Rule 8.4(g) much more broadly prohibits attorneys’ speech.
The argument for the rule, in the lofty vision of the ABA, is that lawyers should be leaders in the fight against bias and prejudice, and who wouldn’t embrace that as a worthy goal? Except for the fact that our duty isn’t to serve only politically correct causes, clients or outcomes, but to represent clients. Are we to neglect our clients because it would require us to use words or ideas that might offend the woke?
You may wonder, what could a lawyer legitimately say that would violate the rule but not deserve sanction? And indeed, that’s very much part of the problem, since no one knows what words will offend someone at any given moment and, by dint of someone feeling harassed or discriminated against, whether for himself or on behalf of others, grieve.
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance.
This is not to argue that lawyers should engage in discrimination, but that lawyers should not be subject to discipline, even disbarment, if they transgress whatever the woke decide is acceptable at any given moment. As has been argued since the ABA came up with this model compelled speech code for lawyers, Rule 8.4(g), it violated the First Amendment and was unconstitutional. Judge Kenney’s decision is compelling, and demonstrates why this model rule was unconstitutional, just as was argued since its inception.