Lawyer Speech Code Held Unconstitutional

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.

13 thoughts on “Lawyer Speech Code Held Unconstitutional

  1. B. McLeod

    The Pensylvania version was already scaled-back from the ABA rule. It rejected the “knows or should know” nebulousness and linked discrimination and harassment restrictions to standards recognized under existing law. It also stopped short of extending “the practice of law” to all bar and social activities, cutting the concept off at bar activities for which CLE credits are available.

    Still, though, it retained the “by words . . .knowingly manifest bias or prejudice” formulation, which is a facial attempt to restrict lawful speech. Not surprisingly, the court readily recognized the rule as viewpoint-based discrimination clearly violating the First Amendment.

    It isn’t as though ABA wasn’t warned. At least two of its own sections filed positions noting the constitutional defects in the rule. However, with its manifest disregard for the rule of law and the United States Constitution, the ABA House of Delegates rammed it through anyway. This, despite the lack of fit between the age-discrimination prohibition and ABA’s own age-discriminatory dues structure.

    By its adoption of Rule 8.4(g), the ABA, at a stroke, demonstrated its hypocrisy, its incompetence, its disregard for the rule of law, and its fundamental unfitness to speak for the legal profession on any matters whatsoever. It is little wonder that the organization has widely come to be seen as an embarrassment, no longer supported by 88% of the nation’s attorneys.

  2. rxc

    This sort of thing is also making its way into the engineering organizations, so thanks for noting that at least one court has found that it is unconstitutional, at least in PA.

    The march thru the institutions continues.

  3. Harvey Silverglate

    The reasons that The Foundation for Individual Rights in Education has its headquarters in Philadelphia — which you say eludes you — are that (1) when FIRE was founded (I was a co-founder), the rents for office space in Philadelphia were much lower than the rents in other cities that would have been convenient (e.g., New York or Boston or Washington), (2) Philadelphia had great symbolic value since it was the site of the Constitutional Convention and the Liberty Bell, (3) one of FIRE’s co-founders was on the faculty of Penn, (4) Philadelphia was centrally located between two major areas of FIRE’s interests and activities — New York City and Washington. In fact, FIRE did have a small outpost in Manhattan for a brief time, at office space donated by a supporter. Today, FIRE maintains a second office, in Washington, with Philadelphia being the main and by far the larger of the two.
    Harvey A. Silverglate
    FIRE’s co-founder and current member of the Board of Directors

    1. SHG Post author

      But Harvey, the Eagles, for crying out loud. Or as W.C. Fields’ epitaph is reputed to say, “I’d rather be dead than in Philadelphia.”

      1. B. McLeod

        Fields missed his time. Today, “Last week, I went to Philadelphia, but it was closed” would be much closer to the mark


    I opposed the speech code portion of Rule 8.4(g), but I don’t see the logic of enjoining enforcement of that provision in its entirety. The First Amendment does not protect harassment or discrimination.

    1. SHG Post author

      That largely depends on what’s claimed to be harassment or discrimination, and the context. Much of time, it does. Which is among the many problems Rule 8.4(g) fails to address.

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