3d Circuit Reverses Holding Pennsylvania Rule 8.4(g) Unconstitutional

While the Third Circuit, in an opinion by Senior Judge Anthony Scirica, didn’t come out and hold that the district court erred in holding Pennsylvania’s adoption of a variation of ABA Model Rule 8.4(g) was constitutional, it all but sloughed off the complaints of FIRE’s Zach Greenberg when it held he lacked standing to challenge the nefarious rule.

In a facile decision of stunning naïveté, the court held that the ramifications of a lawyer speech code prohibiting knowing harassment, defined in such vague terms as to cover pretty much anything, in any aspect of the practice of law based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, and socioeconomic status.” Zach pre-emptively sought to enjoin the rule, arguing that it would form the basis for discipline, or chill his speech, when he taught continuing legal education courses.

Judge Scirica shrugged it away, finding that this wasn’t a by-product of the salutary rule to eliminate discrimination in the practice of law, but general social issues.

Greenberg alleges his speech will be chilled. But his allegation is largely informed by his perception of the social climate, not Rule 8.4(g). Even if Greenberg feels uncomfortable speaking freely and fears professional liability, such chill must be fairly traceable to Rule 8.4(g). He cites studies on public attitudes toward protections for offensive speech; law professors facing informal complaints and, at times, academic sanctions based on their speech; and “dozens” of nonattorneys who “lost their jobs or suffered other negative repercussions for words or  conduct perceived to manifest racial bias or prejudice.” But those situations do not give rise to a reasonable fear of attorney discipline against him. Those individuals suffered consequences outside the attorney discipline process. Greenberg may choose to alter his CLE presentations in concern for his “professional reputation, available job opportunities, and speaking  opportunities,” but such censorship cannot be fairly traced to discipline under Rule 8.4(g). Considering Greenberg faces no imminent injury from disciplinary proceedings under Rule 8.4(g), his self-censorship based on Rule 8.4(g) is not objectively reasonable. Any reasonable chill he suffers cannot be fairly traced to Rule 8.4(g). Thus, he lacks standing to maintain this suit.

What the court failed to grasp is that Rule 8.4(g) is the very “social climate” it notes as manifested by the overly-woke ABA to apply to lawyers. It provides the mechanism by which this “social climate” can be used to bludgeon lawyers into submission at the risk of their licence to practice law. While some rando on social media who utters a thought, such as America is a melting pot or we should be racially colorblind, can be mobbed into submission, somebody figured out that lawyers have rules that can be weaponized to control their speech at the whim of anyone listening, who can then grieve their violation and potential suffer discipline.

Lose their ticket? Certainly possible. Chilling speech? There is no question whatsoever.

We note that our determination that Greenberg has not shown a credible threat that Rule 8.4(g) will be enforced against him necessarily depends on our assessment of the present situation. The Rule was enacted only recently, and Defendants have not begun enforcing it, so there has been no opportunity to observe its effects. If facts develop that validate Greenberg’s fears of enforcement, then he may bring a new suit to vindicate his constitutional rights. Our decision, as always, is limited to the record before us, and we express no opinion on the merits of his suit.

On the one hand, the court contends that the better way to address a rule dictating permisslble lawyer speech is to wait and see how many lawyers are disciplined or disbarred because of it,  the “no harm, no foul” rule. Of course, this provides no comfort for those whose speech is chilled for fear of being the whipping boy for the court’s “wait and see” solution.

On the other hand, this is tantamount to leaving unconstitutional law in the hands of the prosecutor, as if the answer to a bad law is to trust the bar disciplinary counsel to exercise discretion and not use the rule as a bludgeon whenever someone grieves the violence of a lawyer giving a “knowing and intentional” CLE lecture on the potential legal issues arising from a transgender woman stripping in the YMCA locker room in the face of a five-year-old girl.

In constructing any anticipatory action against a law or rule that’s facially unconstitutional, there will invariably be a good amount of speculation as to how it will apply and what its impact will be since it has not yet happened. And Zach Greenberg put himself on the line to make the case against this rule in Pennsylvania using his ordinary activities, such as giving CLE lectures, framed in such a way as to make clear how the rule would affect him.

Others, like Eugene Volokh, who reject the notion that court opinions using “bad words” should be sanitized so that the word never emits from an academics mouth. People can differ on this point, but this rule prohibits differing and puts the speaker at risk for knowingly reading a court decision verbatim.

Sine the ABA became a captive organization of the unduly passionate, and lost most of its dues paying members who would prefer to decide politics for themselves rather than defer to the sensibilities of radical prawfs or baby lawyers, it has pushed to impose its vision of purity on the legal profession. Why a senior judge like Scirica was unable to see this, or felt that the  implementation of Rule 8.4(g) would somehow be immune from this excesses of this social climate is inexplicable. But unless you want to be the poster boy for attorney discipline, watch what you say in Pennsylvania or you could lose your ticket.