US appeals court rejects free speech challenge to attorney bias rule
The United States Court of Appeals for the Third Circuit is seen in Philadelphia, Pennsylvania, U.S., June 10, 2021. REUTERS/Andrew Kelly Purchase Licensing Rights
Aug 29 (Reuters) - A U.S. appeals court on Tuesday revived a Pennsylvania anti-harassment and anti-discrimination professional rule for lawyers, rejecting a lawsuit that challenged the rule as unconstitutional.
Reversing a federal judge's decision, the 3rd Circuit U.S. Court of Appeals said that Zachary Greenberg, an attorney with the non-profit Foundation for Individual Rights and Expression, had not shown that the professional conduct rule threatened his free speech rights.
Greenberg's free speech claim is "not objectively reasonable or cannot be fairly traced to the rule," the court said, ordering his case dismissed for lack of standing.
The Pennsylvania rule, which is modeled after an American Bar Association rule, prohibits lawyers from knowingly engaging "in conduct constituting harassment or discrimination" based on race, sex, religion and other grounds.
Greenberg claimed he risked violating the rule because of presentations he gives about offensive and derogatory language. But the 3rd Circuit panel said the rule "does not arguably prohibit anything Greenberg plans to do."
"The rule covers only knowing or intentional harassment or discrimination against a person," the panel said. "Nothing in Greenberg’s planned speeches comes close to meeting this standard."
Greenberg's counsel Adam Schulman of the Hamilton Lincoln Law Institute said in an email they were still evaluating the decision, but said the 3rd Circuit "ruled on a narrower rule than what we sued on and the district court ruled on."
"The narrower interpretation achieves what we were hoping to achieve if Pennsylvania abides by it," Schulman said.
A lawyer representing Pennsylvania's state attorney disciplinary board did not immediately respond to a request for comment.
Greenberg said in court papers that the rule made him uncomfortable to speak freely on sensitive topics like race, citing law professors who have received complaints and others who have lost their jobs. But that is due to the "social climate" and not Pennsylvania's anti-harassment rule, the panel said.
The ruling is a victory for Pennsylvania's attorney disciplinary board, which first adopted the rule in 2020 and later amended it after Greenberg filed his initial lawsuit. An amended version of the rule was struck down as unconstitutional by U.S. District Judge Chad Kenney in March 2022.
After Kenney's decision, the board hired veteran appellate advocate Lisa Blatt of Williams & Connolly to argue against Greenberg at the 3rd Circuit.
The Pennsylvania rule attracted support from the American Bar Association and other bar groups. It was opposed by conservative, religious and civil rights groups that argued it was ripe for abuse.
In a short concurrence, Judge Thomas Ambro said Pennsylvania's anti-harassment rule could be struck down as unconstitutional in the future by a lawyer who can establish standing to challenge it. He advised that the state could preemptively amend its anti-harassment rule by narrowing its scope.
The case is Greenberg v. Lehocky, 3rd Circuit U.S. Court of Appeals, No. 22-1733.
For Zachary Greenberg: Ted Frank and Adam Schulman of the Hamilton Lincoln Law Institute
For the defendants: Lisa Blatt, Aaron Roper and Amy Mason Saharia of Williams & Connolly
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Reporting by David Thomas
Our Standards: The Thomson Reuters Trust Principles.
