At 3rd Circuit, Pennsylvania finds footing in free speech fight

PHILADELPHIA (CN) — After a federal court twice found that an anti-harassment and discrimination rule for Pennsylvania lawyers violates attorneys’ free speech rights, a lawyer for the state on Thursday urged a sympathetic Third Circuit panel to reverse the latest ruling.

The lawyer who has sued over that rule did not plan to “harass or discriminate against anyone” and therefore should not be allowed to keep challenging the rule’s existence, Lisa Blatt, an attorney for the Disciplinary Board of the Supreme Court of Pennsylvania, told the panel.

That lawyer, Zachary Greenberg, argues his work giving Continuing Legal Education (CLE) talks on First Amendment issues for the nonprofit Foundation for Individual Rights in Education (FIRE) puts him at risk of violating the rule. His examinations involve talking about the use of offensive and derogatory language, including racial and homophobic slurs, which some may find offensive, he has argued in court filings.

Those arguments have worked in federal court twice before — but at the Third Circuit on Thursday, U.S. Circuit Judge Thomas Ambro, a Bill Clinton appointee, seemed skeptical.

To bring a pre-enforcement challenge to a law, someone must face a “credible threat of prosecution,” Ambro said. In this case, “I have great difficulty thinking that there’s any threat of prosecution.”

Greenberg has won his free speech case against the rule twice at the federal court level. In his first complaint, Greenberg said it would be “nearly impossible” to teach about the First Amendment “without engaging in speech that at least some members of his audience will perceive as biased, prejudiced, offensive, and potentially hateful.”

Those arguments proved persuasive in lower court, with U.S. District Judge Chad Kenney, a Trump appointee, first siding with Greenberg against the rule in 2020.

The state initially appealed to the Third Circuit but then dropped the appeal, amending the rule slightly instead.

A previous version of the rule stated that attorneys must not “by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination.” The new rule says lawyers can’t “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.”

Undeterred, Greenberg sued again, arguing the state hadn’t changed the rule enough to skirt around a violation of the First Amendment. Under the new wording, he argued, he would still have to censor himself.

The rule would threaten Greenberg with discipline if an audience member “misconstrues his speech as denigrating” and “registers a complaint with the Office of Disciplinary Counsel,” Greenberg’s second amended complaint argued.

In response, the Disciplinary Board has argued that it does not bring cases based on misconstrued statements. The board has argued that Greenberg’s educational presentations do not raise an issue under the rule.

Still, Kenney once again ruled in Greenberg’s favor, finding that the rule was “overbroad” in violation of free speech rights. That decision prompted another appeal by Pennsylvania.

Presenting for the state on Thursday, Blatt argued Greenberg doesn’t have standing to challenge the American Bar Association-backed rule. She argued the facts of the case don’t support the lower judge’s finding that the rule violates the attorney’s free speech or is facially vague in violation of the Fourteenth Amendment.

“He does not allege that his CLE presentations arguably violate the rule,” Blatt said.

Greenberg’s lawyer, Adam Schulman, pushed back. “Several people have approached my client to tell him that his specific presentations were offensive and hostile toward them,” he said.

Still, Blatt contended that Greenberg’s planned CLE speeches wouldn’t put his status as an attorney under fire, as “meritless and frivolous complaints do not lead to any enforcement action.”

Despite nearly 30 years of attorney ethics rules barring harassment discrimination, Greenberg and his lawyers “cannot cite one example of any attorney who’s been disciplined under these rules for pure ideological or controversial speech," she noted.

U.S. Circuit Judge Michael Chagares, a George W. Bush appointee, pressed Schulman on this front.

“Your adversary pointed out that over 99% of the applications of this rule are going to be fine," he said. “Could you deal with that argument?”

Schulman argued that in the past, professors have gotten into trouble in the past for using inappropriate language when teaching.

“Just verbalization of the epithets in those cases were enough to register complaints and incur discipline," he said.

Ambro, the Clinton appointee, still seemed skeptical.

“Seven out of eight complaints are discarded pretty much at the get-go," he said. The situation did not “portend any type of harm coming to Mr. Greenberg based on what he is alleged in his complaint.”