Amicus Brief: Zachary Greenberg v. Jerry M. Lehocky, et al.

AMICUS BRIEF SUMMARY

NCLA opposes a rule creating an unconstitutional speech code for lawyers. Pennsylvania’s Rule 8.4(g) exposes attorneys to discipline—including sanctions that deprive lawyers of the ability to earn a livelihood—if, while in the practice of law, they knowingly communicate in a manner “constituting harassment or discrimination.” Both the Supreme Court and the Third Circuit have repeatedly stated that speech restrictions that discriminate on the basis of content or viewpoint expressed are constitutionally impermissible.

Pennsylvania has a long history of regulating both the conduct and speech of attorneys, where necessary, to maintain the integrity of the judicial system. Before Pennsylvania adopted Rule 8.4(g) of the Rules of Professional Conduct in 2020, it did not engage in viewpoint discrimination when regulating attorney speech. As the Disciplinary Board of the Supreme Court of Pennsylvania readily concedes, Rule 8.4(g) imposes viewpoint-based restrictions on speech: it prohibits speech that expresses disparaging views of another on the basis of any of eleven listed characteristics but permits laudatory comments on the same subjects.

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CASE: Zachary Greenberg v. Jerry M. Lehocky, et al.

STATUS: Active

ORIGINAL COURT: U.S. Supreme Court

ORIGINAL COURT: U.S. Court of Appeals for the Third Circuit

DOCUMENT: No. 22-1733 ; 23-833

COUNSEL OF RECORD: Peggy Little

FILED: October 27, 2022 ; September 19, 2023 ; March 1, 2024

CASE DOCUMENTS

March 1, 2024 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of Petitioner
Click here to read the full document.
October 3, 2023 | Order of the U.S. Court of Appeals for the Third Circuit Denying Rehearing en Banc
Click here to read the full document.
September 19, 2023 | Brief of The New Civil Liberties Alliance as Amicus Curiae in Support of Appellee’s Petition for Panel Rehearing or Rehearing en Banc
Click here to read the full document.
August 29, 2023 | Opinion of the U.S. Court of Appeals for the Third Circuit
Click here to read the full document.
October 27, 2022 | Amicus Curiae Brief of New Civil Liberties Alliance In Support of Appellee, Urging Affirmance
Click here to read the full document.

PRESS RELEASES

March 4, 2024 | NCLA Advises Supreme Court to Hear Case Against PA Ethics Rule’s Viewpoint-Based Discrimination

Washington, DC (March 4, 2024) – Late Friday, the New Civil Liberties Alliance filed an amicus curiae brief in Greenberg v. Lehocky, asking the Supreme Court to hear this important First Amendment case. NCLA’s brief encourages the Court to recognize that lawyers whose speech is chilled by Rule 8.4(g) of Pennsylvania’s Rules of Professional Conduct have standing to bring a pre-enforcement challenge. The Rule exposes attorneys to discipline—including sanctions that threaten their livelihoods—if the state bar decides their speech “constitut[es] harassment or discrimination” with respect to certain viewpoints whether in the practice of law or related thereto. A district court struck the Rule down, but the U.S. Court of Appeals for the Third Circuit reversed that decision, incorrectly contending that lawyer and law educator Zachary Greenberg lacked standing to challenge the Rule. NCLA’s brief is supporting Mr. Greenberg’s petition for a writ of certiorari from the U.S. Supreme Court.

Imposed by the Disciplinary Board of the Supreme Court of Pennsylvania, Rule 8.4(g) prohibits speech that expresses disparaging views of another person based on any of 11 listed characteristics. It permits laudatory comments on the same bases. Hence, Mr. Greenberg filed suit shortly before the Rule was scheduled to take effect in December 2020, alleging it violates the First Amendment by imposing content- and viewpoint-based speech restrictions, and is void for vagueness. In March 2022, the district court permanently enjoined a revised but essentially identical speech-restricting Rule, correctly holding that it would unlawfully chill Mr. Greenberg’s speech.

Eschewing the merits, the Third Circuit subsequently decided Mr. Greenberg lacked standing to challenge Rule 8.4(g). The Rule was revised in the middle of litigation, and he had received nonbinding, personal assurance that the Board would not discipline him for the speech used in his CLE courses. The Third Circuit’s decision freed the Board from its heavy burden of proving the case was moot, instead forcing Mr. Greenberg to reestablish standing. Thus shifting the appellant’s mootness burden to the appellee is not supported in law and encourages government gamesmanship. Greenberg’s allegations of chilled speech and content-and viewpoint-discrimination properly established his initial standing to sue under the relaxed standard the Supreme Court and other federal courts use to determine if a free speech claimant’s alleged injury supports standing. It was improper to revisit the question.

The Third Circuit’s erroneous decision could prevent pre-enforcement challenges to the Rule by allowing Defendants to purport to exempt anyone who threatened to sue, while leaving the Rule in place to chill everyone else’s speech. That approach jeopardizes the protection of free expression for many thousands of attorneys subject to similar state bar-adopted rules across the country. Rule 8.4(g) clearly engages in viewpoint- and content-based discrimination restricting the speech of attorneys, so it must be subject to normal First Amendment standing analysis. NCLA trusts the Justices will recognize the dangerous speech-suppressing precedent the Third Circuit set and restore Mr. Greenberg’s standing to protect his First Amendment liberties of speech and free expression.

NCLA released the following statements:

“The hasty mid-litigation amendment to Rule 8.4 and the non-binding assurances of a temporary bar official that Mr. Greenberg would not be prosecuted were obvious ploys to derail Mr. Greenberg’s successful challenge to the unconstitutional Rule. The Supreme Court should grant certiorari and put an end to the Pennsylvania bar’s unseemly gamesmanship that allows government officials to evade the Constitution.”
— Peggy Little, Senior Litigation Counsel, NCLA

“The First Amendment protects attorneys’ speech just as much as everyone else’s. The district court properly struck down this content- and viewpoint-discriminatory rule, and the Third Circuit’s standing gymnastics were not consistent with how standing and mootness ought to be analyzed on appeal. The Supreme Court should take this case, reverse the holding below on standing, and send it back to the Third Circuit for a ruling on the merits.”
— Mark Chenoweth, President, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

September 19, 2023 | NCLA Encourages en Banc Third Circuit to End Viewpoint-Based Discrimination in Penn. Ethics Rule

Washington, DC (September 19, 2023) – Rule 8.4(g) of Pennsylvania’s Rules of Professional Conduct for attorneys establishes an unconstitutional speech code for lawyers, exposing them to discipline—including sanctions that threaten their livelihoods—if they knowingly communicate in a manner “constituting harassment or discrimination” in the practice of law. Today, the New Civil Liberties Alliance filed an amicus curiae brief in Greenberg v. Lehocky, calling on the en banc U.S. Court of Appeals for the Third Circuit to topple this Rule.

Rule 8.4(g) prohibits speech that expresses disparaging views of another person based on any of 11 listed characteristics but permits laudatory comments on the same subjects. Zachary Greenberg filed suit shortly before the Rule was scheduled to take effect in December 2020, alleging it violated the First and Fourteenth Amendments by imposing content- and viewpoint-based speech restrictions, and was void for vagueness. A district court preliminarily enjoined its enforcement. In March 2022, the district court granted summary judgment and permanently enjoined a revised Rule, holding that Greenberg had demonstrated his speech was being chilled.

In district court, the Disciplinary Board of the Supreme Court of Pennsylvania denied engaging in content- and viewpoint-based discrimination. However, the Board switched strategies before a Third Circuit panel, arguing that the Rule is not subject to normal First Amendment constraints when restricting attorney speech, claiming, “First Amendment Rules against viewpoint and content discrimination do not apply when the government regulates the practice of law.” However, speech restrictions on lawyers can still violate the First Amendment.

The Third Circuit panel reversed the district court, ruling that Mr. Greenberg lacked standing to challenge the Rule. The Board averred that it would not prosecute Mr. Greenberg for what he planned to say, but it never specified what he could not say that would violate the Rule. NCLA’s brief urges the Third Circuit to find standing and grant a rehearing en banc, because the Rule’s broad definition of “harassment” will inevitably chill attorney speech, including speech on behalf of one’s clients. Attorneys will be less likely to speak out on topics related to the 11 protected categories if they know that doing so could jeopardize their law licenses and careers.

Representing two Connecticut-based attorneys, NCLA recently presented oral argument at the U.S. Court of Appeals for the Second Circuit in a First Amendment challenge to a similar Connecticut ethics rule.

NCLA released the following statement:

“The panel held that attorneys may not raise a First Amendment challenge to Rule 8.4(g) until after they have been charged with violating the Rule. That holding places attorneys in an untenable position. It forces them to relinquish their First Amendment rights by self-censoring their speech based on a fear that they will face disciplinary proceedings if they speak freely.”
— Rich Samp, Senior Litigation Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

October 31, 2022 | NCLA Calls on Third Circuit to Strike Down Viewpoint-Based Discrimination for PA Attorneys

Washington, DC (October 31, 2022) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an amicus curiae brief in Greenberg v. Lehocky, et al. NCLA opposes Pennsylvania officials’ attempt to revive a rule that would use overly vague language to govern objectionable speech by members of the legal profession. Pennsylvania’s Rule 8.4(g) exposes attorneys to discipline—including sanctions that deprive lawyers of the ability to earn a livelihood—if, while in the practice of law, they knowingly communicate in a manner “constituting harassment or discrimination.” The Rule creates an unwarranted speech code for lawyers. Both the Supreme Court and the Third Circuit have repeatedly stated that speech restrictions that discriminate on the basis of content or viewpoint expressed are constitutionally impermissible.

Pennsylvania has a long history of regulating both the conduct and speech of attorneys, where necessary, to maintain the integrity of the judicial system. Before Pennsylvania adopted Rule 8.4(g) of the Rules of Professional Conduct in 2020, it did not engage in viewpoint discrimination when regulating attorney speech. As the Disciplinary Board of the Supreme Court of Pennsylvania readily concedes, Rule 8.4(g) imposes viewpoint-based restrictions on speech: it prohibits speech that expresses disparaging views of another on the basis of any of eleven listed characteristics but permits laudatory comments on the same subjects.

Zachary Greenberg filed suit shortly before Rule 8.4(g) was scheduled to take effect in December 2020, alleging that the new rule violated the First and Fourteenth Amendments because it imposed content- and viewpoint-based speech restrictions and was void for vagueness. On December 7, 2020, the district court preliminarily enjoined enforcement of the Rule. In March 2022, the district court granted Greenberg’s motion for summary judgment and permanently enjoined a revised rule, holding that Greenberg had demonstrated a chilling effect on his speech.

In the district court proceedings, the Disciplinary Board of the Supreme Court of Pennsylvania denied engaging in content- and viewpoint-based discrimination. Now, in a change of tack before the U.S. Court of Appeals for the Third Circuit, they boldly assert that the Rule is not subject to normal First Amendment constraints when restricting attorney speech, arguing that “First Amendment rules against viewpoint and content discrimination do not apply when the government regulates the practice of law.” But the First Amendment analysis does not change simply because the speech restriction is imposed on a lawyer. The Rule’s broad definition of “harassment” will inevitably lead to the chilling of attorney speech, NCLA argues, including speech on behalf of one’s clients. An attorney will be less likely to speak out on topics related to the eleven protected categories if he or she knows that doing so could jeopardize his or her law license—and hence career.

NCLA also represents two Connecticut attorneys who have filed a First Amendment challenge to a Connecticut rule of professional conduct that is similar to Pennsylvania’s Rule 8.4(g).

NCLA released the following statement:

“Bar authorities are attempting to create a Constitution-free zone in Pennsylvania, a zone that, per Rule 8.4(g), encompasses not only courthouses, law offices, and client communications but even continuing legal education seminars and bar association activities. But the Supreme Court has held explicitly that lawyers are entitled to the same First Amendment rights enjoyed by all other citizens.”
— Rich Samp, Senior Litigation Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

OPINION

MEDIA MENTIONS

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