Amicus Curiae Brief — Zachary Greenberg, Petitioner v. Jerry Lehocky, in His Official Capacity as Board Chair of the Disciplinary Board of the Supreme Court of Pennsylvania, et al.

No. 23-833

In the

Supreme Court of the United States

__________________

ZACHARY GREENBERG,

v.

Petitioner,

JERRY LEHOCKY, IN HIS OFFICIAL CAPACITY AS

BOARD CHAIR OF THE DISCIPLINARY BOARD OF

THE SUPREME COURT OF PENNSYLVANIA, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

__________________

BRIEF OF AMICUS CURIAE

INSTITUTE FOR FAITH AND FAMILY

IN SUPPORT OF PETITIONER

__________________

Tami Fitzgerald

Deborah J. Dewart

Counsel of Record

The Institute for Faith

Attorney at Law

And Family

111 Magnolia Lane

9650 Strickland Road

Hubert, NC 28539

Suite 103-222

Raleigh, NC 27615

(910) 326-4554

lawyerdeborah@outlook.com

(980) 404-2880

tfitzgerald@ncvalues.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. RULE 8.4(g) INFRINGES A PUBLIC POLICY

ORGANIZATION’S RIGHT TO ENGAGE IN

ISSUE ADVOCACY.. . . . . . . . . . . . . . . . . . . . . . . 4

II. RULE 8.4(g) VIOLATES CORE FIRST

AMENDMENT RIGHTS TO SPEECH,

RELIGION, AND ASSOCIATION. . . . . . . . . . . . 7

A. Rule 8.4(g) violates the Free Speech Clause. . 8

B. Rule 8.4(g) violates the Free Exercise

Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Rule 8.4(g) violates the First Amendment

right to association. . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii

TABLE OF AUTHORITIES

Benton v. Maryland,

395 U.S. 784 (1969). . . . . . . . . . . . . . . . . . . . . . . 15

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983). . . . . . . . . . . . . . . . . . . . . . . . 16

Bostock v. Clayton Cty.,

140 S. Ct. 1731 (2020). . . . . . . . . . . . . . . . . . . . . . 5

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000). . . . . . . . . . . . . . . . . . . . 16, 18

Brown v. Entm’t Merchs. Ass’n.,

564 U.S. 786 (2011). . . . . . . . . . . . . . . . . . . . . . . . 9

Cent. Hudson Gas & Elec. Corp. v. Public Serv.

Comm’n of N.Y.,

447 U.S. 557 (1980). . . . . . . . . . . . . . . . . . . . . . . 16

Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993). . . . . . . . . . . . . . . . . . . . . . . . 9

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984). . . . . . . . . . . . . . . . . . . . . . . . 7

Gentile v. State Bar of Nev.,

501 U.S. 1030 (1991). . . . . . . . . . . . . . . . . . . . . . . 6

Girouard v. United States,

328 U.S. 61 (1946). . . . . . . . . . . . . . . . . . . . . . . . 15

Greenberg v. Goodrich,

593 F.Supp. 3d 174

(E.D. Pa. 2022) . . . . . . . . . . . . . . . . 6, 8-14, 16, 18

iii

Greenberg v. Lehockey,

81 F.4th 376 (3d Cir. 2023). . . . . . . . . . . . . . . . 3, 7

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group,

515 U.S. 557 (1995). . . . . . . . . . . . . . . . . . . . 15, 16

Iancu v. Brunetti,

139 S. Ct. 2294 (2019). . . . . . . . . . . . . . . . . . . . . 12

In re Primus,

436 U.S. 412 (1978). . . . . . . . . . . . . . . . . . . . . . . . 9

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022). . . . . . . . . . . . . . . . . . 17, 18

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . 15

Little Sisters of the Poor Saints Peter & Paul Home

v. Pennsylvania,

140 S. Ct. 2367 (2020). . . . . . . . . . . . . . . . . . . . . . 5

Matal v. Tam,

582 U.S. 218 (2017). . . . . . . . . . . . 3, 13, 14, 16, 17

McCauley v. Univ. of the Virgin Islands,

618 F.3d 232 (3d Cir. 2010) . . . . . . . . . . . . . . . . 11

McCullen v. Coakley,

573 U.S. 464 (2014). . . . . . . . . . . . . . . . . . . . . . . . 7

NAACP v. Button,

371 U.S. 415 (1963). . . . . . . . . . . . . . . . . . . . . 8, 11

Nat’l Inst. of Fam. & Life Advocs. v. Becerra

(“NIFLA”),

138 S. Ct. 2361 (2018). . . . . . . 2, 3, 7-9, 11, 12, 16

iv

Ne. Pennsylvania Freethought Soc’y v. Lackawanna

Transit Sys.,

938 F.3d 424 (3d Cir. 2019) . . . . . . . . . . . . . . . . 13

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020). . . . . . . . . . . . . . . . 8

Palko v. Connecticut,

302 U.S. 319 (1937). . . . . . . . . . . . . . . . . . . . 14, 15

Reed v. Town of Gilbert,

576 U.S. 155 (2015). . . . . . . . . . . . . . . . . . . . . . . 12

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995). . . . . . . . . . . . . . . . . . . . . . . 13

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) . . . . . . . . . . 10, 11, 13

Schneiderman v. United States,

320 U.S. 118 (1943). . . . . . . . . . . . . . . . . . . . . . . 15

Sypniewski v. Warren Hills Reg’l Bd. of Educ.,

307 F.3d 243 (3d Cir. 2002) . . . . . . . . . . . . . . . . 11

Startzell v. City of Phila.,

533 F.3d 183 (3d Cir. 2008) . . . . . . . . . . . . . . . . 13

Texas v. Johnson,

491 U.S. 397 (1989). . . . . . . . . . . . . . . . . . . . . . . 14

Turner Broadcasting Sys., Inc. v. FCC,

512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . 7, 12, 13

United States v. Playboy Ent. Grp.,

529 U.S. 803 (2000). . . . . . . . . . . . . . . . . . . . . . . 12

v

United States v. Schwimmer,

279 U.S. 644 (1929). . . . . . . . . . . . . . . . . . . . . . . 17

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . . . . 15

Wooley v. Maynard,

430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . . . . 15

OTHER AUTHORITIES

ABA Model Rule 8.4(g). . . . . . . 1-4, 6-9, 11, 12, 14-19

ABA Comm. on Ethics & Pro. Resp.,

Formal Op. 493 (2020) . . . . . . . . . . . . . . . . . . . . 10

1

INTEREST OF AMICUS CURIAE1

Amicus curiae urges this Court to grant the Petition

for Writ of Certiorari and reverse the decision of the

Third Circuit.

The Institute for Faith and Family (“IFF”) is a

North Carolina nonprofit organization that exists to

preserve and promote faith, family, and freedom

through public policies that protect constitutional

liberties, including the right to live and work according

to conscience and faith. See https://iffnc.com. Since IFF

is an expressive organization engaged in issue advocacy

and its Executive Director (Tami Fitzgerald) is a

licensed attorney, Rule 8.4(g) could have a devastating

impact on the organization’s ability to advocate the

policies and positions it was established to promote and

preserve. The ability to speak freely, often on

contentious public matters, is critical to IFF’s ongoing

existence and advocacy.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

ABA Model Rule 8.4(g) is a constitutional

catastrophe. It is a grave danger to the speech,

religious, and association rights of licensed attorneys,

public policy organizations, and the persons they serve.

The Rule was fatally flawed when it was adopted in

1

Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae’s intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than amicus

curiae, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

2016 and its defects have only been magnified by this

Court’s intervening precedent. Any State Bar that

adopts this rule is stepping into a hornet’s nest by

regulating the content of speech, passing judgment on

the popularity of political beliefs, and determining

whether unpopular advocacy should be disciplined.

Amicus curiae writes to emphasize the disastrous

impact of the Rule on expressive associations,

particularly those that participate in legal advocacy.

It is a sad reality that we live in a world where

many people, including lawyers, are willing to suppress

and punish the free speech of those with whom they

disagree. Rule 8.4(g) can be deployed as a weapon to

discipline attorneys for their speech on controversial

issues—speech unquestionably protected by the First

Amendment. The Rule jeopardizes fundamental First

Amendment rights to Free Speech, Free Exercise,

association, issue advocacy, and participation in the

political process. It does nothing to further the

administration of justice. On the contrary, it denies

justice to the very persons entrusted with upholding it.

Attorneys should treat every person with dignity

and respect, even where opinions differ on matters of

fundamental conviction. But in today’s contentious

cultural climate, even the gentlest, most respectful

expression of a “politically incorrect” opinion on a

sensitive matter—marriage, sexual orientation, gender

identity, abortion—could be perceived as

“discrimination” or “harassment.” Rule 8.4(g) unleashes

the potential for the “unfettered discretion” and

viewpoint discrimination that spelled constitutional

doom for the statutes invalidated in Nat’l Inst. of Fam.

3

& Life Advocs. v. Becerra, 138 S. Ct. 2361, 2374 (2018)

(“NIFLA”) and Matal v. Tam, 582 U.S. 218 (2017).

Model Rule 8.4(g) attacks the very Constitution

attorneys are sworn to uphold. Coercing the speech,

attitudes, and even thoughts of licensed

attorneys—without any guardrails to confine the

regulation to a context where it might arguably be

relevant—will have a negative impact on the

administration of justice, particularly for those who

cannot subscribe to the prevailing cultural orthodoxy.

The Third Circuit failed to affirm the District Court, a

well-reasoned ruling that would have helped halt the

Rule’s unnecessary intrusion on liberties of speech,

religion, and association. The circuit court skirted the

massive constitutional questions, concluding that

Greenberg’s “planned speech does not arguably violate

the Rule, and he faces no credible threat of

enforcement.” Greenberg v. Lehockey, 81 F.4th 376, 384

(3d Cir. 2023). A concurring judge acknowledged that

“someday an attorney with standing will challenge

Pennsylvania Rule of Professional Responsibility

8.4(g),” suggesting the State Bar “c[ould] amend the

Rule preemptively to eliminate many of the

constitutional infirmities alleged by Greenberg in this

case.” Id. at 390 (Ambro, J., concurring).

This case raises questions that are crucial to

preserving basic American freedoms. This Court should

affirm Petitioner Greenberg’s standing, paving the way

to a timely resolution of the urgent underlying

constitutional questions.

4

ARGUMENT

I. RULE 8.4(g) INFRINGES A PUBLIC POLICY

ORGANIZATION’S RIGHT TO ENGAGE IN

ISSUE ADVOCACY.

The breathtaking scope of Model Rule 8.4(g), even

as recently amended, would have a punitive and

chilling impact on the issue advocacy of expressive

organizations, particularly public policy organizations

whose centerpiece is advocacy. Issue advocacy requires

the skills of licensed attorneys to navigate the judicial

process. Entire organizations exist for purposes of

advocacy, and they represent a variety of competing

viewpoints. Rule 8.4(g) would squelch the speech of

some organizations while amplifying the voices of

others, even when there is a feeble attempt to exclude

advocacy from the clutches of the Rule.

There are a multitude of potential problems

impacting public policy organizations, including:

• Advocacy would potentially be limited to

whatever issues or policy positions are

“politically correct” and acceptable to State Bar

officials;

• The organization’s employment policies might be

restricted, including the ability to hire and

retain those who are committed to the

organization’s mission;

• Lobbying might be considered “sexual

orientation discrimination” if an organization

holds a traditional view of marriage (one man,

one woman) and lobbies for conscience

5

protections of those who hold that viewpoint, or

lobbies against a proposed state law or local

ordinance that would add new protected classes

(e.g., sexual orientation and gender identity) to

existing anti-discrimination laws.

• Lobbying for pro-life laws (limiting abortion or

protecting the health and safety of pregnant

women) might be considered “discrimination”

against women.

• Amicus briefs presenting a “politically incorrect”

position concerning marriage or the right to life

of an unborn child in the womb might be deemed

“discrimination,” e.g. (1) an amicus brief in

Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020)

arguing that the funeral home owner had the

right to fire an employee who was hired as a

man but later desired to represent himself to

grieving clients as a woman; (2) a brief in Little

Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 140 S. Ct. 2367 (2020) arguing

that a group of nuns has the right to fight a

government mandate that they pay for

abortifacients and contraceptives in their health

plan. Would these amicus briefs be considered

“discrimination” within the meaning of the Rule?

• There are a myriad of other scenarios where an

offended member of the audience might

potentially file a complaint: Panel discussions,

presentations (citizens, churches, schools, other

audiences), op-eds, media interviews, social

media posts, white papers, law review articles,

candidate endorsements.

6

These concerns are not speculative but represent

real threats to the common activities of public policy

organizations. Rule 8.4(g) regulates speech far beyond

the normal scope of professional rules. “Pennsylvania’s

Rule 8.4(g) expands far beyond regulation of speech

within a judicial proceeding or representing a client.”

Greenberg v. Goodrich, 593 F.Supp. 3d 174, 208 (E.D.

Pa. 2022), citing Gentile v. State Bar of Nev., 501 U.S.

1030, 1071-72 (1991). The Rule’s poorly defined

language sweeps much too broadly, encroaching on

organizational advocacy as well as the lives of

individual attorneys. Constitutional flaws include the

unfettered discretion granted to officials to determine

whether a violation has occurred, content and

viewpoint discrimination, vagueness, overbroad

applications, speech control bordering on thought

control, and the possibility that, even if the Rule’s

application were limited to unlawful discrimination (as

defined by state law), the underlying antidiscrimination law itself may be unconstitutional.

The District Court discussed Comment Three to

Rule 8.4(g), which states that “the practice of law does

not include speeches, communications, debates,

presentations, or publications given or published

outside the contexts described” in an earlier portion of

the Comment. Greenberg, 593 F.Supp. 3d at 208. This

convoluted statement does not salvage the

constitutionality of the Rule. As the District Court

correctly concluded, these activities “are included

within the scope of Rule 8.4(g) if they occur within the

listed contexts,” such as legal proceedings, client

representation, operating a law practice, or conferences

offering CLE credits. Greenberg, 593 F.Supp. 3d at 208

7

(emphasis in original). Petitioner Greenberg “regularly

gives continuing legal education presentations about

First Amendment protections for offensive speech,” an

activity virtually certain to fall within the scope of the

Rule. Greenberg v. Lehockey, 81 F.4th at 379. A

nonprofit public interest law firm, or a conservative

association of lawyers holding a similar conference,

would fall within the broad sweep of the Rule.

II. RULE 8.4(g) VIOLATES CORE FIRST

AMENDMENT RIGHTS TO SPEECH,

RELIGION, AND ASSOCIATION.

Attorneys speak on behalf of their clients as well as

themselves as individuals. To censor attorney speech is

to broadly censor the speech of all Americans.

Attorneys are sworn to uphold the Constitution in their

practice of law. Government speech suppression

obstructs this duty.

The practice of law is a profession subject to

reasonable regulation, but it is not exempt from the

First Amendment. As this Court warned, regulating

the content of professional speech “pose[s] the inherent

risk that the Government seeks not to advance a

legitimate regulatory goal, but to suppress unpopular

ideas or information.” NIFLA, 138 S. Ct. at 2374,

quoting Turner Broadcasting Systems, Inc. v. FCC, 512

U.S. 622, 641 (1994) (emphasis added). Speech

regulation threatens to destroy the “uninhibited

marketplace of ideas in which truth will ultimately

prevail.” NIFLA, 138 S. Ct. at 2374, quoting McCullen

v. Coakley, 573 U.S. 464, 476 (2014) (quoting FCC v.

League of Women Voters of Cal., 468 U.S. 364, 377

(1984) (internal quotation marks omitted)). Rule 8.4(g),

8

like the law implicated in NIFLA, is unconstitutional

because it suppresses unpopular ideas and restricts the

“marketplace of ideas” central to free speech, religion,

and association.

A. Rule 8.4(g) violates the Free Speech Clause.

The District Court correctly recognized and

explained that the Rule chills speech that is “at best,

tangentially related to the administration of justice

and, at worst, completely irrelevant to it.” Greenberg,

593 F.Supp. 3d at 219. The “investigatory process

itself” could have “a chilling effect,” causing attorneys

“to self-censor” even if officials promise not to enforce

the Rule “in the way its plain language suggests.” Id. at

199. Investigation of an attorney’s alleged

“discrimination” could easily cause “reputational

damage,” “inhibit[ing] [the attorney’s] ability to obtain

clients, retain employment, be admitted in other

jurisdictions,” and other adverse results. Id. at 224.

The Rule’s burden on speech is beyond

“incidental.” Because Rule 8.4(g) “regulate[s] speech,

not merely conduct,” its burden on free expression is

not incidental to its enforcement. Greenberg, 593

F.Supp. 3d at 206. “The government cannot regulate

speech by relabeling it as conduct.” Otto v. City of Boca

Raton, 981 F.3d 854, 865 (11th Cir. 2020). Nor may the

government, “under the guise of prohibiting

professional misconduct, ignore constitutional rights.”

NAACP v. Button, 371 U.S. 415, 439 (1963). Some

professional rules incidentally involve speech but do

not target any specific viewpoint—client

confidentiality, candor, truthfulness, and conflict of

interest disclosures. Rule 8.4(g) sweeps more broadly,

9

intruding on the personal and even religious life of the

lawyer. “Sexual orientation” and “gender identity,”

protected categories under the Rule, are contentious

issues that implicate deeply personal beliefs about

morality and religion. The government has no business

stepping into this legal quicksand by attempting to

regulate attitudes or thoughts about such matters.

The Rule is broad, imprecise, and vague. Rule

8.4(g) stretches far beyond reasonable licensing

requirements and encroaches on attorneys’ personal

lives and beliefs. “Professional speech” has never been

defined with precision. NIFLA, 138 S. Ct. at 2375,

citing Brown v. Entm’t Merchs. Ass’n., 564 U.S. 786,

791 (2011). That ambiguity creates a grave danger that

states could achieve “unfettered power to reduce a

group’s First Amendment rights by simply imposing a

licensing requirement.” NIFLA, 138 S. Ct. at 2375,

quoting Cincinnati v. Discovery Network, Inc., 507 U.S.

410, 423-424 n. 19 (1993). The state could thereby

brandish “a powerful tool to impose invidious

discrimination of disfavored subjects.” Id.

The District Court acknowledged “the danger of

censorship through selective enforcement of broad

prohibitions” and the need to regulate with “narrow

specificity” to preserve the “breathing space” required

for First Amendment liberties. Greenberg, 593 F.Supp.

3d at 209, citing In re Primus, 436 U.S. 412, 432-433

(1978). Even the ABA has admitted the “important

constitutional principle” that “an ethical duty that can

result in discipline must be sufficiently clear to give

notice of the conduct that is required or forbidden.”

Greenberg, 593 F.Supp. 3d at 222 (emphasis added),

10

quoting ABA Comm. on Ethics & Pro. Resp., Formal

Op. 493 (2020) (emphasis added). Even after the recent

Amendments, the Pennsylvania Rule fails to “provide

fair notice” and “invite[s] imprecise enforcement”

through its inclusion of “made-up definitions that do

not comport with the definitions of similar terms [e.g.,

harassment] in similar contexts.” Greenberg, 593

F.Supp. 3d at 222-22.

Imprecision is especially troublesome with respect

to “discrimination” and “harassment.” These poorly

defined terms easily invade the First Amendment.

Their definitions “begin with the speaker’s intentions”

and consequently, “regulation extends to simple

offensive acts” beyond the requirements for federal

anti-harassment liability. Greenberg, 593 F.Supp. 3d at

211. Attorneys do not cease to be citizens but retain the

same First Amendment rights as all others. As the

Third Circuit explained in an earlier case, “we cannot

turn a blind eye to the First Amendment implications”

when laws against “harassment” regulate expression,

no matter how “detestable the views expressed may

be.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,

206 (3d Cir. 2001) (Alito, J.). The government’s

allegedly “compelling” interest in eliminating

“discrimination” relies on “amorphous justifications

untethered to attorneys or Pennsylvania or any of the

contexts listed in the Amendments.” Greenberg, 593

F.Supp. 3d at 214. These “broad strokes” have a

“corrosive effect” on the Constitution’s ability to protect

individual rights and to restrain “popular movements

that seek to limit those rights.” Id. at 214.

11

Instead of precision, Rule 8.4(g) follows the culture’s

coercive redefinition of reality that erodes core rights to

expression. Words like marriage and sex are

increasingly redefined in a way that jeopardizes free

speech and religious liberty. Sexuality is central to the

religious and moral convictions of many—including

attorneys. “Sex,” an objective term that describes the

biological reality of male or female, has been expanded

to encompass “sexual orientation” and “gender

identity,” two highly subjective concepts that depend on

an individual’s shifting perceptions and desires.

The Rule is so broad that its very existence

chills expression. The District Court correctly noted

that the “very existence” of this broadly formulated

Rule “will inhibit free expression to a substantial

extent.” Greenberg, 593 F.Supp. 3d at 218, quoting

McCauley v. Univ. of the Virgin Islands, 618 F.3d 232,

241 (3d Cir. 2010) (quoting Sypniewski v. Warren Hills

Reg’l Bd. of Educ., 307 F.3d 243, 258 (3d Cir. 2002)

(internal quotation marks omitted). Here, the “very

existence” of Rule 8.4(g) “will inhibit . . . the speech of

third parties who are not before the Court” (Saxe, 240

F.3d at 214)—specifically, every attorney governed by

the Rule. The Rule “permits the government to restrict

speech outside of the courtroom,” “the context of a

pending case,” or “the administration of justice.”

Greenberg, 593 F.Supp. 3d at 216. Even as amended,

the Rule “extend[s] far beyond situations that would

necessarily affect the administration of justice.” Id. at

218. “Precision . . . must be the touchstone” when it

comes to regulations of speech, which “so closely

touch[es] our most precious freedoms.” NIFLA, 138

S. Ct. at 2376, quoting Button, 371 U.S. at 438. Neither

12

Rule 8.4(g) nor the regulations it spawns can satisfy

the demands of the First Amendment.

The Rule reeks of both content and viewpoint

discrimination. In NIFLA, Justice Kennedy wrote

separately “to underscore . . . the apparent viewpoint

discrimination . . . inherent in the design and structure

of th[e] Act” which he considered to be a matter of

“serious constitutional concern.” NIFLA, 138 S. Ct. at

2378-79 (Kennedy, J., concurring). Similarly, the

viewpoint discrimination “inherent in the design” of

Rule 8.4(g) is a “serious constitutional concern.” It

creates a “substantial risk of excising certain ideas or

viewpoints from the public dialogue.” Turner

Broadcasting, 512 U.S. at 642. This is “poison to a free

society.” Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019)

(Alito, J., concurring) (striking down a provision

forbidding “immoral or scandalous” trademarks

because the ban “disfavors certain ideas”).

The Rule contains content-based discrimination

because it impacts “the perception of lawyers by the

public.” Greenberg, 593 F.Supp. 3d at 213, citing United

States v. Playboy Ent. Grp., 529 U.S. 803, 811 (2000)

(“concern for the effect of the subject matter on

[listeners] . . . is the essence of content-based

regulation”). Even if the motivation for the Rule were

innocent or even admirable, there is a residual danger

of censorship because “future government officials may

one day wield [the Rule] to suppress disfavored

speech.” Reed v. Town of Gilbert, 576 U.S. 155, 167

(2015).

13

The District Court also found viewpoint

discrimination, “an egregious form of content

discrimination.” Ne. Pennsylvania Freethought Soc’y v.

Lackawanna Transit Sys., 938 F.3d 424, 432 (3d Cir.

2019), quoting Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819, 829 (1995). Viewpoint

discrimination is present in laws that favor (or

disfavor) speech based on “the ideas or views

expressed.” Greenberg, 593 F.Supp. 3d at 210, quoting

Startzell v. City of Phila., 533 F.3d 183, 193 (3d Cir.

2008) (quoting Turner Broadcasting, 512 U.S. at 643).

Rule 8.4(g) prohibits discrimination based on “gender

identity or expression, religion, . . . sexual orientation,”

comparable to the provision in Matal that “prohibited

trademarks that disparage, or show contempt or

disrepute towards a person.” Greenberg, 593 F.Supp. 3d

at 211. The Rule represents “the essence of viewpoint

discrimination” because it “reflects the [g]overnment’s

disapproval of a subset of messages it finds offensive.”

Id. at 210, quoting Matal, 582 U.S. at 249. Viewpoint

discrimination is only appropriate where “the

government itself is speaking or recruiting others to

communicate a message on its behalf.” Id. at 253

(Kennedy, J., concurring) (emphasis added).

The Rule attempts to regulate speech that is

“offensive” or “politically incorrect,” and

improperly relies on audience response. As this

Circuit recognizes, “there is . . . no question that the

free speech clause protects a wide variety of speech

that listeners may consider deeply offensive,” even

“statements that impugn another’s race or national

origin or that denigrate religious beliefs.” Saxe, 240

F.3d at 206. In Matal, this Court struck down the

14

“disparagement clause” of the Lanham Act because it

transgressed the “bedrock First Amendment principle”

that “the government may not prohibit the expression

of an idea simply because society finds the idea itself

offensive or disagreeable.” 582 U.S. at 244, quoting

Texas v. Johnson, 491 U.S. 397, 414 (1989). The

provision at issue in Matal prohibited registration of a

trademark “which may disparage . . . persons, living or

dead, institutions, beliefs, or national symbols, or bring

them into contempt, or disrepute.” Matal, 582 U.S. at

227. A prima facie case for disparagement could be

made where an examiner found a proposed mark to be

“disparaging in the context of contemporary attitudes.”

Id. at 228. This language is eerily similar to the “prima

facie” case that might be made for attorney discipline in

any state where Rule 8.4(g) is adopted. “Contemporary

attitudes” and “politically correct” attitudes are

virtually identical. Based on “the plain language of the

regulation and its administrative process,” enforcement

of the Rule inevitably “relies on complaints filed by the

public and whether an individual perceives another’s

expression to be welcome or unwelcome.” Greenberg,

593 F.Supp. 3d at 211. If enforcement were tethered to

“judicial proceedings or the representation of a client,”

there might be a more objective evaluation as to

whether the attorney’s conduct has “prevented equal

access or the fair administration of justice.” Id. at 212.

Instead, “the Rule floats in the sea of whatever the

majority finds offensive at the time.” Ibid.

The Rule’s viewpoint discrimination threatens

to impose thought control. Freedom of thought is

the “indispensable condition” of “nearly every other

form of freedom.” Palko v. Connecticut, 302 U.S. 319,

15

326-27 (1937)), overruled on other grounds by Benton v.

Maryland, 395 U.S. 784 (1969). The freedom of thought

that undergirds the First Amendment merits

“unqualified attachment.” Schneiderman v. United

States, 320 U.S. 118, 144 (1943). The victory for

freedom of thought recorded in the Bill of Rights

recognizes that in the domain of conscience there is a

moral power higher than the State. Girouard v. United

States, 328 U.S. 61, 68 (1946). Courts have an

affirmative “duty to guard and respect that sphere of

inviolable conscience and belief which is the mark of a

free people.” Lee v. Weisman, 505 U.S. 577, 592 (1992).

Rule 8.4(g) darkens the “fixed star in our

constitutional constellation” that forbids any

government official, “high or petty,” from prescribing

“what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

Regardless of how acceptable transgender ideology is in

the current culture, the State Bar’s interest in

disseminating that ideology “cannot outweigh [an

attorney’s] First Amendment right to avoid becoming

the courier for such message.” Wooley v. Maynard, 430

U.S. 705, 717 (1977). “Struggles to coerce uniformity”

of thought are ultimately futile, “achiev[ing] only the

unanimity of the graveyard.” Barnette, 319 U.S. at 640,

641. The government itself may adopt a viewpoint but

may never “interfere with speech for no better reason

than promoting an approved message or discouraging

a disfavored one, however enlightened either purpose

may strike the government.” Hurley v. Irish-American

Gay, Lesbian & Bisexual Group, 515 U.S. 557, 579

16

(1995). Gender identity may be “embraced and

advocated by increasing numbers of people,” but that is

“all the more reason to protect the First Amendment

rights of those who wish to voice a different view.” Boy

Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000).

The District Court understood the threat, finding

that the call to discipline attorneys “where listeners are

offended . . . appears to be a thinly veiled effort to

police attorneys for having undesirable views and bad

thoughts.” Greenberg, 593 F.Supp. 3d at 212 (emphasis

added). Like the constitutionally defective statute in

NIFLA, Rule 8.4(g) is a “paradigmatic example of the

serious threat presented” when the government “seeks

to impose its own message in the place of individual

speech, thought, and expression,” coercing

individuals—here, attorneys at law—to become “an

instrument for fostering public adherence” to an

ideology they find unacceptable. NIFLA, 138 S. Ct. at

2378-79 (Kennedy, J., concurring).

Commercial Speech. Even if the Rule were

limited to the commercial context rather than

extending to an attorney’s personal life—and the line

is blurred—restrictions of commercial speech must be

“narrowly drawn” to serve a “substantial interest.”

Matal, 582 U.S. at 245, citing Cent. Hudson Gas &

Elect. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S.

557, 565 (1980). Moreover, “discrimination based on

viewpoint, including a regulation that targets speech

for its offensiveness,” is prohibited in the commercial

sphere, just as it is anywhere else. Matal, 582 U.S. at

251 (Kennedy, J., concurring, citing Bolger v. Youngs

Drug Products Corp., 463 U.S. 60, 65, 71-72 (1983)). In

17

Matal, the government proclaimed an interest in

protecting “underrepresented groups” from “demeaning

messages in commercial advertising.” Id. at 245. But

“that idea strikes at the heart of the First Amendment”

and cannot withstand constitutional scrutiny: “Speech

that demeans on the basis of race, ethnicity, gender,

religion, age, disability, or any other similar ground is

hateful; but the proudest boast of our free speech

jurisprudence is that we protect the freedom to express

the thought that we hate.” Matal, 582 U.S. at 246,

quoting United States v. Schwimmer, 279 U.S. 644, 655

(1929) (Holmes, J., dissenting) (internal quotations

omitted) (emphasis added).

B. Rule 8.4(g) violates the Free Exercise

Clause.

The imprecise terms “harassment” and

“discrimination” open the door for state officials to

discipline an attorney for expression of his or her

religious or moral viewpoint on sensitive, controversial

contemporary topics. To put it bluntly, “[t]o permit

viewpoint discrimination in this context . . . is to permit

Government censorship.” Matal, 582 U.S. at 252

(Kennedy, J., concurring). The Rule contains no

guardrails or limiting principles to prevent that result.

This clashes with the Free Exercise Clause, which

“protects not only the right to harbor religious beliefs

inwardly and secretly,” but even more importantly,

“the ability of those who hold religious beliefs of all

kinds to live out their faiths in daily life through the

performance of (or abstention from) physical acts.”

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421

18

(2022) (international citations and quotation marks

omitted).

The Rule’s content discrimination threatens

religious liberty. Its restrictions apply to “any attorney

at any event even tangentially related to the practice of

law” and consequently “depend[s] entirely on the

communicative content of the attorney’s speech.”

Greenberg, 593 F.Supp. 3d at 213 (emphasis added). An

official who opposes religious teachings against

abortion could “investigate a CLE presenter advocating

for restrictive abortion laws,” reasoning “such

teachings intend to treat women as inferior based on

their sex.” Ibid.

C. Rule 8.4(g) violates the First Amendment

right to association.

Rule 8.4(g) potentially infringes the First

Amendment rights of attorneys to engage in expressive

association, including the “right to associate with

others in pursuit of a wide variety of political, social,

economic, educational, religious, and cultural ends.”

Dale, 530 U.S. at 647. Association is crucial to

“preventing the majority from imposing its views on

groups that would rather express other, perhaps

unpopular, ideas.” Id. at 647-48. The Rule is worded so

broadly that even membership in an organization that

espouses views that some consider “harmful” or

“derogatory” might be deemed “discriminatory” or

“harassing.” There are no limiting principles that

would explicitly protect the right to belong to a church

or other religious or expressive organization. This

omission is as alarming as it is unconstitutional.

19

CONCLUSION

This Court should grant Certiorari and affirm

Petitioner’s standing to challenge Pennsylvania’s

version of Model Rule 8.4(g).

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

The Institute for Faith And Family

9650 Strickland Road, Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

Counsel for Amicus Curiae