Court Strikes Down Pennsylvania Lawyer Speech Code
March 24, 2022 | Tags: free speech, REASON
Today's decision in Judge Chad Kenney (E.D. Pa.) in Greenberg v. Goodrich holds unconstitutional the revised Pennsylvania Rule of Professional Conduct 8.4(g):
It is professional misconduct for a lawyer to: … in the practice of law, knowingly engage in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules….
[Comment 3] For the purposes of paragraph (g), conduct in the practice of law includes (1) interacting with witnesses, coworkers, court personnel, lawyers, or others, while appearing in proceedings before a tribunal or in connection with the representation of a client; (2) operating or managing a law firm or law practice; or (3) participation in judicial boards, conferences, or committees; continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered. The term "the practice of law" does not include speeches, communications, debates, presentations, or publications given or published outside the contexts described in (1)- (3).
[Comment 4] "Harassment" means conduct that is intended to intimidate, denigrate or show hostility or aversion toward a person on any of the bases listed in paragraph (g). "Harassment" includes sexual harassment, which includes but is not limited to sexual advances, requests for sexual favors, and other conduct of a sexual nature that is unwelcome.
[Comment 5] "Discrimination" means conduct that a lawyer knows manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in paragraph (g); to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.
The court finds that the Rule violates the First Amendment; here are some excerpts, though there is much more going on in the opinion as well (it's 78 pages long):
[Speech vs. conduct:] The first point of contention between the parties is whether the Amendments regulate speech, as Plaintiff asserts, or conduct and potentially incidentally burden speech, as Defendants claim. The Court finds that the Amendments regulate speech, not merely conduct, and therefore the burden placed on freedom of expression is not incidental to the enforcement of Rule 8.4(g). Unfortunately for Defendants, "[t]he government cannot regulate speech by relabeling it as conduct." Otto v. City of Boca Raton (11th Cir. 2020). Furthermore, "a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights." NAACP v. Button (1963)….
"When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications." Saxe v. State College Area School Dist. (3d Cir. 2001). The anti-harassment policy in Saxe and the Amendments here both use versions of the same terms, "intimidate," "denigrate," and "hostile" in similar contexts, all of which necessitate the policing of expression. The Third Circuit explicitly rejected the argument that anti-harassment statutes are categorically not subject to the First Amendment protections on free speech and further decided that the policy "prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law." The Court adopts similar reasoning here. Rule 8.4(g)'s prohibition on denigrating another a person, like the Saxe policy's prohibition on disparaging speech directed at a person, causes this Court First Amendment concern.
The Amendments also lack the necessary protection of free speech identified by the Third Circuit in DeJohn v. Temple Univ. (3d Cir. 2008). "Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work—the policy provides no shelter for core protected speech."
Furthermore, both the plain language of the Amendments and the statements made by Defendants during oral argument prove there is no genuine dispute that the regulation restricts speech on its face and not incidentally. Comment Three to Rule 8.4(g) states that "the practice of law does not include speeches, communications, debates, presentations, or publications given or published outside the contexts described" earlier in the Comment. Pa.R.P.C. 8.4 cmt. 3. The Court interprets that plain language to mean all of those are included within the scope of Rule 8.4(g) if they occur within the listed contexts of a legal proceeding, representation of a client, operating or managing a law firm or practice, and various activities and conferences where CLE credits are offered. Thus, a plain reading of the Amendments restricts speeches, communications, debates and presentations—all of which obviously involve speech—at conferences, seminars, and other activities. Defendants, through counsel, confirmed to the Court during oral argument that "speeches, communications, debates, presentations, or publications" made within the contexts described in (1)—(3) of Comment Three are included in the scope of Rule 8.4(g). This language and counsel's statements convince the Court that attorneys' speech is not incidentally burdened here, it is targeted by Rule 8.4(g) and will continue to be broadly monitored and subject to government censure under this Rule….
[Professional speech:] Even if the Amendments target speech directly, Defendants assert that the state has broad authority to regulate professional speech and thus Rule 8.4(g) should not be subject to strict constitutional evaluation. The Court disagrees yet again and finds no genuine dispute on this issue either…. Pennsylvania has an important interest in regulating licensed attorneys and their conduct related to the fair administration of justice. That interest, however, does not give the government the authority to regulate attorneys' speech without limits.
The Supreme Court "has not recognized 'professional speech' as a separate category of speech." While the Supreme Court has recognized that an attorney's speech while representing a client or appearing in the courtroom could be limited, Pennsylvania's Rule 8.4(g) expands far beyond regulation of speech within a judicial proceeding or representing a client. It is by no means limited to the legal process, as the Amendments explicitly apply to activities such as seminars or conferences where legal education credits are offered….
"[S]peech is not unprotected merely because it is uttered by 'professionals.'" NIFLA v. Becerra (2018). There are only two circumstances in which professional speech is "afforded less protection" and the Amendments do not fit into either category. First, courts may apply "more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their 'commercial speech.'" This does not apply here as Rule 8.4(g) is not a regulation of commercial speech. Second, "[s]tates may regulate professional conduct, even though that conduct incidentally involves speech." The Court determined above there is no genuine dispute that the Amendments do not merely regulate conduct, the Amendments directly restrict speech…. [The Amendments] restrict speech outside of the courtroom, outside of the context of a pending case, and even outside the much broader playing field of administration of justice. It is a stretch to consider statements made by attorneys outside of those situations to be considered professional speech merely because it is uttered by an attorney….
Furthermore, while the Court admires the ideal of high standards of professionalism and benevolence which the Rule would have Pennsylvania lawyers aspire to, the state simply does not have the authority to police professionals in their daily lives to root out speech the state deems to be below "common decency." That nebulous notion of decency, combined with the exceptional authority the state would have if allowed to monitor attorneys outside of judicial proceedings and representation of a client and determine whether they are "decent" enough causes this Court grave concern….
[Viewpoint discrimination:] "Viewpoint discrimination is an 'egregious form of content discrimination.'" … It "targets … particular views taken by speakers[,]" which "violates the First Amendment's most basic promise." It is a "core postulate of free speech law: The government may not discriminate against speech based on the ideas or opinions it conveys." …
Plaintiff relies on Matal v. Tam, in which the Supreme Court considered the constitutionality of a prohibition on the registration of trademarks that may "disparage" or bring "contemp[t] or disrepute any persons, living or dead." The Court found that the provision violated the First Amendment because "[s]peech may not be banned on the ground that it expresses ideas that offend." Id. The Supreme Court encouraged that viewpoint discrimination be considered in a broad sense and even if the provision "prohibits disparagement of all group[s]," it should still be seen as viewpoint discrimination because "[g]iving offense is a viewpoint." Defendants assert that all attorneys are equally affected by Rule 8.4(g) thus it cannot be viewpoint discrimination, but Justice Kennedy specifically addresses this argument in Matal. Justice Kennedy adds, "[t]o prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so."
Similarly, the Amendments state that it is professional misconduct for an attorney to "knowingly engage in […] harassment" that is "intended to denigrate or show hostility or aversion toward a person[.]" Just as the provision in Matal prohibited trademarks that disparage, or show contempt or disrepute towards a person, Rule 8.4(g) prohibits the denigration of or hostility or aversion to a person based on the provided list of categories: race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. Defendants have "singled out a subset of message," namely language that knowingly engages in denigration or hostility or aversion of a person, "for disfavor based on the views expressed."
Again here, Saxe is on point regarding whether Rule 8.4(g) prohibits offensive language. The Third Circuit found that the anti-harassment policy in Saxe focused too heavily on the purpose of the speech or conduct and ignored federal harassment law, which imposes liability when harassment has a profound effect on the institution. Here, both the definitions of harassment and discrimination begin with the speaker's intentions—intended to intimidate and manifests an intention—thereby extending the regulation "to speech that merely has purpose of" harassing another. By focusing on the speaker's intention, the regulation extends to simple offensive acts that are generally insufficient for federal anti-harassment liability.
Defendants insist that the listener's subjective feelings of offense are irrelevant to Rule 8.4(g) but that seems impossible from both the plain language of the regulation and its administrative process. By using the terms "denigrate," "hostility," and "aversion," as well as questioning when an attorney "manifests an intention: to treat a person as inferior," the Amendments prohibit offensive language. The listener, regardless of whether that person is the person targeted by the derogatory remarks, subjectively determines if they are offended enough to file a complaint. It is nonsensical for Defendants to assert that an individual's perception is irrelevant where the Rule relies on complaints filed by the public and whether an individual perceives another's expression to be welcome or unwelcome is a basic premise of harassment. An individual's perception is exactly what compels them to file a complaint. Then it is the reviewing employee at ODC who determines whether the language is offensive enough to proceed towards discipline.
Defendants promise, through the Farrell Declaration, not to consider whether one is offended in investigating complaints. That promise, however, is completely untenable. If the Amendments were tied to judicial proceedings or the representation of a client, then ODC could evaluate more objectively the impact of an attorney's conduct on the proceeding or representation and whether it prevented equal access or the fair administration of justice. But without that sort of tethering, the Rule floats in the sea of whatever the majority finds offensive at the time.
The standards for ODC's assessment are, at best, subjective, and, at worst, completely unknown to both Pennsylvania attorneys like Mr. Greenberg and even ODC itself. Mr. Greenberg cites to numerous instances where speakers or panelists at legal conferences and seminars made objectively benign, yet subjectively offensive to some, statements and the uproar against the speaker was significant. Indeed before its promulgation, Rule 8.4(g)'s stated government purposes included to "affirm that no lawyer is immune from the reach of law and ethics." The inclusion of ethics in the public introduction of the Rule is very telling in how the Board imagined the regulation would be implemented and applied. This Court finds no genuine dispute that Rule 8.4(g) invites disciplinary action on the occasions where listeners are offended and appears to be a thinly veiled effort to police attorneys for having undesirable views and bad thoughts.
"[T]here is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs." Here, the Court agrees with Mr. Greenberg that Rule 8.4(g) ultimately turns on the perceptions of the public to Plaintiff's speech and then the judgment of the government agents to investigate the incident or administer some form of discipline. Therefore, the Court finds that the Amendments, including Rule 8.4(g) and Comments  and , constitute viewpoint-based discrimination in violation of the First Amendment….
[Compelling interest:] According to Defendants, Pennsylvania has a compelling interest in "eradicating discrimination and harassment, ensuring that the legal profession functions for all participants, maintaining the public confidence in the legal system's impartiality, and its trust in the legal profession as a whole." Rule 8.4(g) was thus created to allow Pennsylvania to regulate the attorneys it licenses to ensure "the efficient and law-based resolution of disputes and guaranteeing that its judicial system is equally accessible to all." Defendants also aim to "protect the integrity and fairness of [Pennsylvania's] judicial system[.]" Defendants go further to state Pennsylvania must protect the reputations of its lawyers by preventing them from engaging in something "deplorable and beneath common decency[.]" …
It is difficult for the Court to credit Defendants for presenting a compelling government interest when they have instead provided amorphous justifications untethered to attorneys or Pennsylvania or any of the contexts listed in the Amendments. There may also be a concern regarding public distrust and unequal access in the medical profession, but surely that is not a compelling reason to regulate doctors to never make offensive statements in a forum tangentially related to the practice of medicine just so public perception of doctors will improve. There is public distrust in large banks but surely that is not a compelling reason to regulate bankers to never make offensive statements. This notion of public distrust used as an anchor for government regulation could conceivably extend to every industry in which the state has licensing authority and serve as an invitation to those regulatory agencies to engage in censoring unfavorable speech, deemed subjectively unworthy of those in their industry. Such broad strokes have a corrosive effect on the ability of the Constitution to protect individual rights and hold back the of-the-moment popular movements that seek to limit those rights. It is a concerning slippery slope for government to involve itself in the manner and direction of public discourse that cannot be overstated….
Further, it is not the role of the government to ensure that all lawyers are noble guardians of the profession or well-liked by the public. That is equivalent to requiring that all public school teachers love children or insisting all doctors develop a good bedside manner. Would we prefer that in an ideal world? Sure. But it is not for the government to enact regulations that monitor the type of people who work in a particular profession. Ultimately, Defendants want the Court to blindly accept anti-harassment and anti-discrimination policy as an overwhelming good that is justified in and of itself, and the Court cannot do so without more focus in the state's interests for enacting this particular rule. This nebulous good is insufficient to serve as a compelling interest to restrict freedom of speech and expression….
The court also holds that the Amendments are unconstitutionally vague: "they do not provide fair notice of the prohibited conduct to Pennsylvania attorneys, and they invite imprecise enforcement from ODC and the Board."
On the first ground for vagueness, the Amendments include made-up definitions that do not comport with the definitions of similar terms in similar contexts. That is to say—ODC makes up its own definitions for the purpose of this rule alone. Starting with harassment, Comment Four to Rule 8.4(g) defines it broadly as "conduct that is intended to intimidate, denigrate or show hostility or aversion toward a person on any of the bases listed in paragraph (g)." This definition is unlike other definitions of harassment in similar contexts….
The definition of discrimination provided in Comment Five is hardly an improvement. It is unclear to the Court how an attorney "manifests an intention" or "disregard[s] relevant characteristics" in violation of this Rule. The Amendments offer no clarification as to what those relevant characteristics may be and that prevents ordinary attorneys from understanding what they must take into account in order to avoid any manifestation of discrimination. Both definitions, critical to the application of Rule 8.4(g) to attorneys, are unfamiliar and untenable. Since there is a significant risk that Rule 8.4(g) will inhibit free speech, its boundaries must be well-defined, yet there is minimal, if any, connection to the substantive law of discrimination and harassment statutes. There is additional reason to consider the "reputational injury" that may occur if an attorney is accused of discrimination or harassment under Rule 8.4(g), which the Court takes seriously when considering if fair notice is provided. An investigation into an attorney's alleged discrimination or harassment could inhibit their ability to obtain clients, retain employment, be admitted in other jurisdictions, and the list goes on of potential reputational harm that this attorney could incur. While the Court takes any harassment or discrimination in the practice of law seriously, this does not excuse the Board from drafting such regulations that provide attorneys with fair notice.
Second, … the Amendments as written invite arbitrary or discriminatory enforcement of Rule 8.4(g)…. In the plain language of the Amendments, harassment is defined as "conduct that is intended to intimidate, denigrate, or show hostility or aversion" and by using the terms "denigrate" or "aversion," among others, the Board is encouraging subjective interpretation and enforcement. What is considered to denigrate a person will necessarily vary depending on the member of ODC reviewing the complaint. See e.g., McCauley v. Univ. of the Virgin Islands (3d Cir. 2010) (finding the ban on offensive signs "hopelessly ambiguous and subjective"); Dambrot v. Cent. Michigan Univ. (6th Cir. 1995) (holding policy unconstitutionally vague where it turned on the "subjective reference" whether speech was "negative" or "offensive"). The definition of discrimination has similarly vague terms to require the attorney "manifest an intention" and "to disregard relevant considerations of individual characteristics or merit," which will give ODC complete discretion to determine whether an attorney has manifested anything under the regulation or to determine what relevant characteristics should have been considered….
Congratulations to Adam Schulman of the Hamilton Lincoln Law Institute, who represents plaintiff.
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