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,

Petitioner,

v.

JERRY M. LEHOCKY, IN HIS OFFICIAL CAPACITY AS

BOARD CHAIR OF THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA, ET AL.,

__________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE U.S.

COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

BRIEF OF AMICI CURIAE FIRST LIBERTY

INSTITUTE AND INDEPENDENCE LAW

CENTER IN SUPPORT OF PETITIONER

__________

RANDALL L. WENGER

JEREMY L. SAMEK

JANICE MARTINO-GOTTSHALL

INDEPENDENCE LAW CENTER

23 North Front Street

Harrisburg, PA 17101

(717) 657-4990

rwenger@indlawcenter.org

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

1331 Penn. Ave. NW, Ste. 1410

Washington, DC 20004

KELLY J. SHACKELFORD

Counsel of Record

JEFFREY C. MATEER

DAVID J. HACKER

JUSTIN E. BUTTERFIELD

FIRST LIBERTY INSTITUTE

2001 W. Plano Pkwy, Ste. 1600

Plano, TX 75075

(972) 941-4444

kshackelford@firstliberty.org

Counsel for Amici Curiae

i

QUESTION PRESENTED

Does amending or supplementing a complaint to

include new factual developments absolve the

government of its burden to prove mootness?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ................................................................3

I.

The decision below unfairly shifted the

burden to Petitioner by analyzing

standing rather than mootness. .................3

A. Two circuits have now defied this Court’s

pre-enforcement precedent by removing

standing because the plaintiffs have not

yet experienced the harms they seek to

avoid ...........……………………………………3

B. By improperly applying standing doctrine

instead of mootness, the court tipped the

scales in favor of the government whose

policy is at issue...........................................7

II.

Pennsylvania’s modified Rule 8.4(g)

disproportionately

chills

the

constitutional

rights

of

religious

attorneys ....................................................11

A. Rule

8.4(g)

violates

the

First

Amendment by censoring the speech of

religious attorneys. ..................................14

B. Rule 8.4(g) deters lawyers from zealously

representing faith-based and other pro

bono clients. ..............................................18

CONCLUSION ..........................................................25

iii

TABLE OF AUTHORITIES

Cases

303 Creative v. Elenis,

600 U.S. 570 (2023) ........................................... 5, 22

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

570 U.S. 205 (2013) ................................................ 14

American Legion v. American Humanist Association,

139 S. Ct. 2067 (2019)………………………………….1

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ........................................... 13

Babbit v. UFW Nat’l Union,

442 U.S. 289 (1979) ............................................. 6, 7

Brown & Smith v. Alaska Airlines, Inc., et.al.,

No. 2:22-cv-668 (W.D. Wash. filed May 17, 2022).22

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ................................................. 6

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................... 24

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ............................................... 15

Carson v. Makin,

596 U.S. 767 (2022)……………………………………1

iv

Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ............................................... 16

Citizens United v. FEC,

558 U.S. 310 (2010) ............................................... 13

Doe v. Boyertown Area Sch. Dist.,

893 F.3d 179 (3d Cir. 2018) ................................... 24

Downtown Soup Kitchen v. Mun. of Anchorage,

576 F. Supp. 3d 636 (D. Alaska 2021) ............ 20, 21

Elrod v. Burns,

427 U.S. 347 (1976) ............................................... 12

EXC, Inc. v. Kayenta District Court,

No. SC-CV-07-10 (Navajo Nation Supreme Court,

Sept. 10, 2010)......................................................... 20

Fellowship of Christian Athletes v. San Jose Unified

Sch. Dist. Bd. of Educ.,

82 F.4th 664 (9th Cir. 2023) ............................. 24, 25

Friends of the Earth, Inc. v. Laidlaw Env’t Serv., Inc.,

528 U.S. 167 (2000) .......................................... 7, 8, 9

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ............................................... 25

Gentile v. State Bar of Nev.,

501 U.S. 1030 (1991) ............................................. 15

Groff v. DeJoy,

600 U.S. 447 (2023)…………………………………....1

v

In re Primus,

436 U.S. 412 (1978) ................................................ 16

Janus v. American Fed’n of State, Cty., & Mun. Emp.,

Council 31,

138 S. Ct. 2448 (2018) ..................................... 14, 15

John and Jane Parents 1 v. Montgomery Cnty. Bd. of

Educ.,

78 F.4th 622 (4th Cir. 2023), cert. docketed, No.

23-601 .................................................................. 3, 4

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................... 1, 15, 17, 25

Kloosterman v. Metropolitan Health,

No. 1:22-cv-00944 (W.D. Mich. Sept. 20, 2023)...... ..

...................................................................... 22, 23

NAACP v. Button,

371 U.S. 415 (1963) ............................................... 16

National Institute of Family & Life Advocates

(“NIFLA”) v. Becerra,

585 U.S. 755 (2018) .......................................... 16, 17

Northeastern Fla. Chapter v. Jacksonville,

508 U.S. 656 (1993) .................................................. 5

Reed v. Town of Gilbert, Ariz.,

576 U.S. 155 (2015) ................................................ 16

Reno v. ACLU,

521 U.S. 844 (1997) .......................................... 13, 14

vi

Secretary of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947 (1984) ........................................ 6, 7, 14

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ................................................. 5

Strader v. CVS Health Corporation,

No. 4:23-cv-00038-P (N.D. Tex. Jan. 11, 2023) ... 22

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................. 6, 7

Thomas v. Review Bd. of Ind. Emp. Security Div.,

450 U.S. 707 (1981) ................................................ 25

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) .......................................... 4, 5

United States v. Stevens,

559 U.S. 460 (2010)…………………………….……10

U.S. Navy Seals 1-26 v. Biden,

72 F.4th 666 (5th Cir. 2023) ............................... 8, 9

U.S. Navy SEALs 1-26 v. Biden,

No. 4:21-cv-01236-O (N.D. Tex. Feb. 14, 2024) ...... 9

Village of Schaumburg v. Citizens for a Better

Environment,

444 U.S. 620 (1980) ................................................. 6

Virginia v. American Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) ................................................. 7

vii

Walsh v. Georgia Dep’t of Public Health, et al.,

No. 1:16-cv-01278 (N.D. Ga. dismissed Feb. 15,

2017) ..................................................................... 23

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ......................................... 14, 17

Other Authorities

Davis & Reaves, The Point Isn’t Moot: How Lower

Courts Have Blessed Government Abuse of

Voluntary-Cessation Doctrine,

129 YALE L.J. FORUM 325 (2019)............................. 7

First Liberty Institute, Public Comment on Section

1557 NPRM (Oct. 3, 2022) ..................................... 20

Josh Blackman, ABA Model Rule 8.4(g) in the States,

68 CATH. U. L. REV. 629 (2019) .............................. 17

Kiarash Aramesh, Perspectives of Hinduism and

Zoroastrianism on abortion: a comparative study

between two pro-life ancient sisters,

J. MED. ETHICS HIST. 12:9 (2019) .......................... 20

Leslie Griffin, The Relevance of Religion to a Lawyer’s

Work: Legal Ethics,

66 FORDHAM L. REV. 1253 (1998) .................... 17, 18

Religious Landscape Study, PEW RESEARCH CENTER

(2014) ...................................................................... 19

Rules

Pa. Rule of Professional Conduct 8.4(g)…….11, 18, 19

1

INTEREST OF AMICI CURIAE 1

First Liberty Institute is a nonprofit, public

interest law firm dedicated to defending religious

liberty for all Americans. First Liberty has won

several religious freedom cases at this Court,

including Groff v. DeJoy, 600 U.S. 447 (2023); Kennedy

v. Bremerton School District, 597 U.S. 507 (2022);

Carson v. Makin, 596 U.S. 767 (2022); and American

Legion v. American Humanist Association, 139 S. Ct.

2067 (2019). First Liberty provides pro bono legal

representation to individuals and institutions of all

faiths and has represented people of the Catholic,

Islamic, Jewish, Native American, Protestant,

Muslim, Falun Gong, and other faiths. First Liberty

attorneys are barred in many states including

Pennsylvania. First Liberty attorneys desire freedom

to represent clients and speak on matters of public

concern without fear of bar discipline.

Independence Law Center is a Pennsylvania-based

public interest civil rights law firm and nonprofit

§ 501(c)(3) organization that works to promote the

family, improve education, protect human rights, and

preserve religious liberty. Independence Law Center

attorneys, who are primarily barred in Pennsylvania,

advance this work through legal advocacy, the media,

and state and local policy development. Independence

Law Center provides pro bono services not only to

1 All parties were timely notified of the filing of this brief. No

counsel for a party authored this brief in whole or in part, and no

party or counsel for a party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity other than amici curiae or their counsel made a

monetary contribution to this brief’s preparation or submission.

2

individuals but also to schools, businesses, churches,

and nonprofits. Its attorneys often present testimony

before legislative bodies and speak to groups on these

topics. From time to time, Independence Law Center

attorneys are also invited to provide their perspective

on these issues for continuing education programs.

Independence Law Center attorneys also serve on

nonprofit boards.

SUMMARY OF ARGUMENT

The First Amendment protects unpopular

viewpoints. But for its protections to carry real

meaning for non-lawyers, those protections must

extend to lawyers who represent unpopular clients. To

protect his freedom of speech and the freedoms of

thousands of other Pennsylvania-barred attorneys,

Zachary Greenberg brought a pre-enforcement

challenge to Pennsylvania’s Rule 8.4(g). But after over

a year of litigation, the Third Circuit held that one

government declaration removed his standing,

making the Rule nearly impossible to challenge. The

Third Circuit’s extreme justiciability rule shoehorns

traditional mootness analysis into the doctrine of

standing in a way that dramatically harms religious

liberty claimants if left unchecked.

Here, not only did the Third Circuit’s holding

improperly erase Plaintiff’s standing to challenge Rule

8.4(g), but it also left many attorneys, like amici,

without any safeguard against the state’s

unconstitutional rule. Religious attorneys cannot rely

on the declaration’s passing acknowledgement that

they may still have “the right to express intolerant

religious views,” because that subjective assessment

could change at any time—and is itself discriminatory.

3

JA275 (C.A. Dkt. 23-2) at 148. Further, the declaration

says nothing about client representation—the central

work of most attorneys—which Rule 8.4(g) clearly

governs. This broad-sweeping rule directly restricts

speech and targets viewpoints on subjects which are

often matters of public concern and must be open to

free debate. Consequently, its chilling effect on

attorneys who commonly represent clients in such

matters is very significant.

ARGUMENT

I.

The decision below unfairly shifted the

burden to Petitioner by analyzing

standing rather than mootness.

Procedural rules such as standing and mootness

are foundational to constituional judicial review. Here,

however, by ignoring this Court’s pre-enforcement

precedents and improperly applying standing instead

of mootness, the lower court created a novel rule that

empowers government defendants to ensure that

religious plaintiffs can never have their rights secured

until they have already been trampled upon.

A. Two circuits have now defied this

Court’s pre-enforcement precedent by

removing

standing

because

the

plaintiffs have not yet experienced the

harms they seek to avoid.

In another petition for certiorari currently pending

before this Court, John and Jane Parents 1 v.

Montgomery County Board of Education, 2 the same

question is at stake: in cases bringing pre-enforcement

2 Petitioners in John and Jane Parents 1 filed their petition for

certiorari on Nov. 13, 2023. The Response is due March 18, 2024.

4

challenges based on constitutional rights, can an

appellate court remove standing because the plaintiff

has not yet experienced the harm he seeks to avoid?

There, parents sued anonymously to protect their

families’ safety, challenging a school policy that

requires school staff to conceal gender transitions from

parents that they subjectively deem will not be

“sufficiently supportive.” 78 F.4th 622, 646 (4th Cir.

2023) (Niemeyer, J., dissenting), cert. docketed, No. 23601. Although Montgomery County never questioned

plaintiffs’ standing, the Fourth Circuit found sua

sponte that plaintiffs lacked standing because their

children had not yet actually begun gender

transitions—even though the policy at issue hid that

information from parents. Id. at 626; see also id. at 642

(Niemeyer, J., dissenting) (300 secret transitions have

taken place).

Here, Petitioner finds himself in a similar catch-22.

Unless and until he is actually investigated for his

CLE presentations, is the subject of a bar complaint

for representing an unpopular client, or loses his bar

license, he cannot challenge a Rule that imposes clear

limitations on his constitutional rights. Therefore, this

Court should intervene because both the Third and

Fourth Circuits have wrongly removed standing from

plaintiffs who brought pre-enforcement challenges,

simply because they had not yet experienced the full

extent of the harm they sued to avoid.

These outlier opinions ignore longstanding

Supreme

Court

precedent

recognizing

preenforcement challenges as vehicles to challenge

facially unconstitutional laws or policies. See, e.g.,

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204-

5

2205 (2021) (noting that intangible, constitutional

harms are concrete and confer standing); Spokeo, Inc.

v. Robins, 578 U.S. 330, 347 (2016) (Thomas, J.,

concurring) (“Our contemporary decisions have not

required a Plaintiff to assert an actual injury beyond

the violation of his personal legal rights to satisfy the

‘injury-in-fact’ requirement.”); Northeastern Fla.

Chapter v. Jacksonville, 508 U.S. 656, 665-666 (1993)

(plaintiff had standing to challenge policy that would

potentially deny him government benefit, even if he

did not allege it would actually do so).

In 303 Creative v. Elenis, this Court reaffirmed the

longstanding doctrine that plaintiffs have standing to

bring pre-enforcement challenges. Lorie Smith needed

only to “show ‘a credible threat’ existed that Colorado

would, in fact seek to compel speech from her that she

did not wish to produce.” 600 U.S. 570, 580 (2023).

Likewise, here, Zachary Greenberg needed only to

show a credible threat that Pennsylvania’s Rule 8.4(g)

would be enforced against him. His initial complaint

clearly made that showing. App. 188a-202a. By the

Third Circuit’s logic, in 303 Creative, the Colorado

Civil Rights Commission could have devised a midlitigation declaration and deprived Smith of standing

two years into her lawsuit. But declarations do not

eliminate the chill to constitutional speech, which is

the injury at issue. 303 Creative, 600 U.S. at 597

(reaffirming that “Ms. Smith faces a credible threat of

sanctions unless she conforms her views to the State’s”)

(emphasis added).

This Court has long recognized pre-enforcement

challenges as an important safeguard to constitutional

rights. “[W]hen there is a danger of chilling free

6

speech,” “[l]itigants . . . are permitted to challenge a

statute not because their own rights of free expression

are violated, but because of a judicial prediction or

assumption that the statute’s very existence may

cause others not before the court to refrain from

constitutionally protected speech or expression.”

Secretary of State of Md. v. Munson Co., 467 U.S. 947,

956-957 (1984) (quoting Broadrick v. Oklahoma, 413

U.S. 601, 612 (1973)); see also Village of Schaumburg

v. Citizens for a Better Environment, 444 U.S. 620, 634

(1980) (“Given a case or controversy, a litigant whose

own activities are unprotected may nevertheless

challenge a statute by showing that it substantially

abridges the First Amendment rights of other parties

not before the court”). In Munson, the Court upheld a

charity’s facial challenge, even if the statute might not

restrict its own First Amendment rights, because

“[f]acial challenges to overly broad statutes are

allowed not primarily for the benefit of the litigant, but

for the benefit of society—to prevent the statute from

chilling the First Amendment rights of other parties

not before the court.” 467 U.S. at 958.

In Susan B. Anthony List v. Driehaus, this Court

held that petitioners, who “intend[ed] to criticize

candidates for political office, [were] easy targets” of

the challenged statute. 573 U.S. 149, 164 (2014).

Because the statute subjected petitioners to a credible

threat of enforcement, the Court ruled that preenforcement review was warranted. Id. at 167-168.

See, e.g., Babbit v. UFW Nat’l Union, 442 U.S. 289,

301-302 (1979) (pre-enforcement review justified

where statute could unconstitutionally penalize

inadvertent erroneous statements made during free

debate); Virginia v. American Booksellers Ass’n, Inc.,

7

484 U.S. 383, 393 (1988) (pre-enforcement review

justified where facially over-broad law subjected

booksellers to actual and well-founded fear the law

would be used against them, thus risking selfcensorship).

Here, anyone could file a complaint with the

Disciplinary

Board,

instigating

review

and

enforcement action against Greenberg and any other

Pennsylvania-barred attorney. “Because the universe

of potential complainants is not restricted to state

officials who are constrained by explicit guidelines or

ethical obligations,” the “credibility of [the] threat is

bolstered.” SBA List, 573 U.S. at 164. Under Munson

and SBA List, Greenberg has standing to bring his

pre-enforcement challenge both to protect his own free

speech from the chilling effect he has already

experienced, and to protect others whose First

Amendment rights are at stake.

B. By improperly applying standing

doctrine instead of mootness, the court

tipped the scales in favor of the

government whose policy is at issue.

Government defendants are already at an

advantage when courts apply the mootness doctrine,

because the voluntary cessation exception tips the

scales. See, e.g., Davis & Reaves, The Point Isn’t Moot:

How Lower Courts Have Blessed Government Abuse of

Voluntary-Cessation Doctrine, 129 YALE L.J. FORUM

325, 329-331 (2019). But at least with mootness, it is

the defendant’s duty to prove that voluntary cessation

has occurred. This is a “heavy burden” to satisfy. See

Friends of the Earth, Inc. v. Laidlaw Env’t Serv., Inc.,

528 U.S. 167, 170 (2000). Under this Court’s

8

precedents, the only way a defendant can satisfy this

burden is by repudiating the alleged conduct. Here,

the Third Circuit shifted this burden onto Petitioner,

forcing him to re-prove that he has standing at all, or

as he describes, forcing him to “prove non-mootness.”

Pet. 30. That is not the law.

When the faulty application of justiciability rules

shifts the burden to the plaintiff, this unfairly

advantages the government. For example, in U.S.

Navy Seals 1-26 v. Biden, 72 F.4th 666, 671 (5th Cir.

2023), the Fifth Circuit mooted an interlocutory

appeal challenging the Navy’s vaccine mandate after

Congress directed the Navy to rescind its policy. But

despite this rescission, “[t]he Secretary of Defense

maintained his fervent opposition to Congress’s repeal

of his mandate.” Id. at 677 (Ho, J., dissenting). The

Navy still sought to implement as much of the

mandate as it could: (1) telling military commanders

they could still consider vaccination status in making

deployment decisions, (2) “refus[ing] to admit

illegality or assure the SEALs that their religious

convictions would be respected in the future,” id. at

677 (Ho, J., dissenting), and (3) conceding that “it

could implement a new vaccine mandate in the

future.” Id. at 674. Despite all this, the Fifth Circuit

gave the government defendant a presumption that it

was acting in good faith and that, absent any evidence

to the contrary, it was not changing course as a mere

litigation tactic. Id. at 675. The Fifth Circuit dismissed

9

the preliminary injunction appeal as moot, id. at 676,

but the rest of the case is proceeding. 3

The Fifth Circuit’s approach in U.S. Navy Seals 126 cannot be justified under this Court’s precedents.

Indeed, the party seeking to defeat the voluntary

cessation doctrine “bears the formidable burden of

showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to

recur.” Friends of the Earth, 528 U.S. at 190. Under

Friends of the Earth, the presumption is that the

defendant will re-engage in the conduct in question

unless it proves otherwise. Under this Court’s

precedents, the defendant must prove it will not

reengage in that conduct.

Here, the district court correctly applied mootness

doctrine rather than standing. It held that the Farrell

Declaration and Pennsylvania’s amendments to the

Rule did not moot the case because Defendants

continued to “defend the constitutionality” of the Rule

and “vigorously assert the compelling need to regulate

attorneys” and “eradicate[] discrimination and

harassment,” and to insist that “incidental” burdens in

speech are permissible. App. 62a-63a. Further,

“[d]efendants effectively ask Plaintiff to trust them not

to regulate and discipline his offensive speech even

though they have given themselves the authority to do

so,” and “there remains the constant threat that the

3 The district court allowed the SEALs’ remaining claims to

proceed, holding that “live harm remains due to allegations

regarding the Navy’s broader religious accommodations process,”

and that “Plaintiffs retain a concrete interest in the outome of

this litigation.” U.S. Navy SEALs 1-26 v. Biden, No. 4:21-cv01236-O (N.D. Tex. Feb. 14, 2024), at 5, 16 (cleaned up).

10

Rule will be engaged as the plain language of it”

promises. App. 148a (emphasis added). The district

court’s analysis echoes United States v. Stevens, which

held that “the First Amendment protects against the

Government; it does not leave us at the mercy of

noblesse oblige. We would not uphold an

unconstitutional statute merely because the

Government promised to use it responsibly.” 559 U.S.

460, 480 (2010).

In contrast, the Third Circuit got the analysis—and

the timing—backwards. Instead of looking to the

original complaint to analyze jurisdiction, the court

looked only at the supplemental complaint, and used

a mid-litigation declaration filed after the

supplemental complaint to remove Petitioner’s

standing. App. 20a-24a. Because the lower court

abdicated its constitutional gatekeeping role, Rule

8.4(g) is alive and well, and Petitioner is being told to

risk his bar license, career, and livelihood on the

government’s say-so that it won’t enforce the Rule

against him. This outcome ignores the thousands of

other Pennsylvania attorneys who face enforcement of

a facially unconstitutional rule. 4

4 Granted,

other Pennsylvania attorneys can sue to challenge

Rule 8.4(g). But Respondents could file more declarations

promising not to enforce the Rule against those specific attorneys.

It is difficult to see how any attorney can have standing to

challenge the Rule until they actually lose their bar license or face

a career-destroying investigation—the exact harms that

Greenberg’s pre-enforcement challenge seeks to avoid.

11

II.

Pennsylvania’s modified Rule 8.4(g)

disproportionately

chills

the

constitutional rights of religious

attorneys.

As the district court correctly held, Rule 8.4(g) is

“an unconstitutional infringement of free speech”

under the First Amendment. App. 127a. Patterned

after ABA Model Rule 8.4(g), the Disciplinary Board of

the Supreme Court of Pennsylvania (the “Board”)

adopted a modified version:

It is professional misconduct for a lawyer

to: . . . (g) 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.

Rule 8.4(g) (App. 38a, n.3). Because the Rule expressly

includes “sex, gender identity or expression . . . sexual

orientation,” and “marital status” as prohibited

categories, it raises concerns for religious attorneys, as

well as non-religious attorneys who represent

religious clients. Dozens of faith groups believe that

sex is biological and cannot or should not be changed

to conform with gender identity, and that abortion is

12

morally wrong because human life is sacred. Given the

diverse group of attorneys and clients that could be

targeted by this Rule because of their religious beliefs

about these sensitive topics, the vigorous protection of

First Amendment rights plays an important role in

preserving viewpoint diversity in the legal profession.

As the district court held and Respondents

conceded below, Rule 8.4(g) constitutes viewpointbased and content-based discrimination, App. 100a;

Resp’ts Br. (C.A. Dkt. 22) at 2, 16, and such

discrimination violates the Free Speech Clause. Its

complaint-driven, case-by-case enforcement provides a

vehicle for viewpoint discrimination by the Board.

App. 95a-100a. The district court also correctly held

that the Rule is unconstitutionally vague under the

Fourteenth Amendment. App. 127a.

The Third Circuit acknowledged that Greenberg

“asserts standing based on an ongoing chill to his

speech.” App. 20a. Yet it dismisses his concern as not

“objectively reasonable or fairly traceable to the

challenged Rule,” ignoring that the injury here is the

chilling effect on speech. Id. In Elrod v. Burns, where

this Court held that “the loss of First Amendment

freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury,” one of

the plaintiffs had merely been threatened with

discharge, and others had agreed to support the

Democratic Party to avoid the threat of discharge. 427

U.S. 347, 373-374 (1976). Those plaintiffs still had

standing and still deserved injunctive relief. So too

here. It is enough that Greenberg’s speech and First

Amendment activities are threatened by the Rule,

that multiple attorneys and students have told him

13

they took offense at his presentations, App. 228a, and

that he has curtailed his talks to avoid investigation

or discipline. App. 233a (Greenberg “will refrain from

conducting speaking engagements on controversial

issues as a result [of the Rule]” and “Greenberg’s selfcensorship will extend to excluding, limiting, and

sanitizing the examples used in his speaking

engagements to illustrate his points, in order to reduce

the risk of an audience member reporting his

expression to ODC.”). That chilling effect violates the

First Amendment.

This Court has consistently held that laws which

have a chilling effect on speech—or pose a risk of

chilling speech—violate the First Amendment.

“Premised on mistrust of governmental power, the

First Amendment stands against attempts to disfavor

certain subjects or viewpoints.” Citizens United v.

FEC, 558 U.S. 310, 340 (2010) (finding that First

Amendment prohibited law banning corporate

expenditures for electioneering communications,

because it chilled political speech). “The Government

may not by these means deprive the public of the right

and privilege to determine for itself what speech and

speakers are worthy of consideration.” Id. at 341. See

also Americans for Prosperity Found. v. Bonta, 141 S.

Ct. 2373, 2388 (2021) (law’s donor requirement

disclosure may deter association, thereby creating “a

risk of a chilling effect” which was enough to violate

the First Amendment because such “freedoms need

breathing space to survive”) (internal citations

omitted). In Reno v. ACLU, the Court found that the

Communications Decency Act was “a content-based

regulation of speech” that was unconstitutionally

vague and overbroad. 521 U.S. 844, 871 (1997). In

14

particular, “[t]he vagueness of such a regulation raises

special First Amendment concerns because of its

obvious

chilling

effect

on

free

speech,”

and “this increased deterrent effect, coupled with the

‘risk of discriminatory enforcement’ of vague

regulations, poses great[] First Amendment

concerns.” Id. at 871-872 (internal citations omitted).

see also Munson, 467 U.S. at 957 (statute regulating

fundraising activity “create[d] an unnecessary risk of

chilling free speech” and was subject to facial attack

due to imprecise and overbroad language).

A. Rule 8.4(g) violates the First

Amendment by censoring the speech

of religious attorneys.

Government officials may not prevent citizens from

speaking religious messages or compel them to speak

messages that violate their sincere religious beliefs.

See West Virginia Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943) (“If there is any fixed star in our

constitutional constellation, it is that no official, high

or petty, can prescribe 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.”). Government officials may not

condition a public benefit on affirming or abjuring a

specific set of beliefs or policy statements. See Agency

for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.

205, 218 (2013) (“By requiring recipients to profess a

specific belief, the Policy Requirement goes beyond

defining the limits of the federally funded program to

defining the recipient.”). Simply put, compelling

individuals to mouth support for views they find

objectionable violates the Free Speech Clause. See

15

Janus v. American Fed’n of State, Cty., & Mun. Emp.,

Council 31, 138 S. Ct. 2448, 2463-2464 (2018).

These protections are even more robust when

religious speech is implicated. As this Court held in

Kennedy v. Bremerton School District, the Free

Exercise and Free Speech Clauses “work in tandem.”

597 U.S. 507, 523 (2022). “Where the Free Exercise

Clause protects religious exercises, whether

communicative or not, the Free Speech Clause

provides overlapping protection for expressive

religious activities.” Id. This double protection for

religious speech is “no accident,” because “‘government

suppression of speech has so commonly been

directed precisely at religious speech that a freespeech clause without religion would be Hamlet

without the prince.’” Id. at 523-524 (quoting Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,

760 (1995) (emphasis in original)).

By participating in the legal profession, attorneys

do not forfeit the First Amendment’s protections. This

Court has long held that “disciplinary rules governing

the legal profession cannot punish activity protected

by the First Amendment.” Gentile v. State Bar of Nev.,

501 U.S. 1030, 1054 (1991). Respondents’ assertion

that “[o]rdinary First Amendment standards do not

apply” to the regulation of attorneys is unfounded.

Resp’ts Br. at 26-28. In National Institute of Family &

Life Advocates (“NIFLA”) v. Becerra, this Court held

that “governments have no power to restrict

expression because of its message, its ideas, its subject

matter, or its content.” 585 U.S. 755, 766 (2018)

(internal citations omitted). The Court held that the

First Amendment protects professional speech,

16

including attorney speech, when the government seeks

to regulate its content. Id. at 771. The only instances

when professional speech receives less protection are

when

laws

require

disclosure

of

“factual,

noncontroversial information,” or when laws seek to

regulate professional conduct rather than speech. Id.

at 768. The Court repeatedly mentioned lawyers as

professionals deserving First Amendment protection,

“appl[ying] strict scrutiny to content-based laws that

regulate the noncommercial speech of lawyers.” Id. at

771 (citing Reed v. Town of Gilbert, Ariz., 576 U.S. 155,

167 (2015); NAACP v. Button, 371 U.S. 415, 438-439

(1963); and In re Primus, 436 U.S. 412, 432 (1978)).

The Court acknowledged that professionals often

disagree about important issues affecting their duties;

for example, “lawyers and marriage counselors might

disagree about the prudence of prenuptial agreements

or the wisdom of divorce.” Id. at 772. The Court

concluded that “the people lose when the government

is the one deciding which ideas should prevail.” Id.

Explicitly rejecting the notion that the professionalspeech doctrine removes First Amendment protections

from lawyers merely because States have imposed a

licensing requirement, the Court held that “[s]tates

cannot choose the protection that speech receives

under the First Amendment, as that would give them

a powerful tool to impose ‘invidious discrimination of

disfavored subjects.’” Id. at 773 (quoting Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 423-424, n.19

(1993)).

Here, Rule 8.4(g) triggers strict scrutiny under the

Free Speech Clause because it regulates speech based

on content and viewpoint, and the First Amendment

protects attorneys in both instances. Neither of the

17

narrow exemptions the NIFLA Court identified

applies here. Respondents freely admit that Rule

8.4(g) regulates “harassing and discriminatory

speech,” and the sweeping scope of the Rule goes far

beyond factual disclosures. Resp’ts Br. at 57; see also

Josh Blackman, ABA Model Rule 8.4(g) in the States,

68 CATH. U. L. REV. 629, 637 (2019). Furthermore,

because many lawyers hold sincere religious beliefs

that inform their viewpoints and client interactions,

including beliefs about marriage, gender identity, and

human life, the Rule also impinges on attorneys’ free

exercise rights. Given that the Free Speech Clause and

Free Exercise Clause provide overlapping protection

for religious speech, Kennedy, 509 U.S. at 523-524, the

Rule violates both clauses by impermissibly

discriminating against religious viewpoints on issues

of public concern, such as marriage and gender

identity. As this Court recognized in both Barnette and

NIFLA, society benefits when diverse viewpoints are

welcomed rather than stamped out by the

government. Religious attorneys offer a particularly

valuable perspective by drawing from the moral and

ethical norms inherent in their own traditions. “It may

be a theological teaching that convinces an attorney

that a professional ethical standard is incomplete, and

the attorney may be right.” Leslie Griffin, The

Relevance of Religion to a Lawyer’s Work: Legal Ethics,

66 FORDHAM L. REV. 1253, 1261 (1998). Furthermore,

“[t]he legal profession needs criticism to improve its

own standards,” and “from their own tradition,

religious adherents may gain the insight and the

wisdom to know that an ethical standard is deficient.”

Id. Instead of acknowledging the value that diverse

religious viewpoints can bring to the legal profession,

18

Rule 8.4(g) short-circuits them by censoring religious

speech on important matters of public concern.

B. Rule 8.4(g) deters lawyers from

zealously representing faith-based

and other pro bono clients.

If enforced, Rule 8.4(g) will curtail pro bono legal

work. ABA Model Rule 6.1 requires lawyers to provide

legal services to those unable to pay, suggesting that

lawyers provide a “substantial majority” of their pro

bono

hours

to

“charitable”

or

“religious”

organizations.”

ABA

Model

Rule

6.1(a)(2).

Pennsylvania Rule 6.1 likewise encourages lawyers to

provide pro bono services. Religious attorneys are

often more inclined to engage in pro bono work

because their faith motivates them to serve

underprivileged communities free of charge. See, e.g.,

Griffin, supra, at 1257 (“[R]eligion will influence some

to spend their legal careers in service of the poor and

others to resist the material pressures of the

profession[.]”). For example, a large network of

Christian legal aid clinics provide pro bono legal

services, prayer, and holistic support to those who

cannot afford legal assistance. However, because Rule

8.4(g) applies to the “practice of law,” which includes

pro bono work, it would infringe on attorneys’ ability

to provide pro bono assistance that aligns with their

religious and philanthropic missions. Many legal aid

organizations focus on specific populations; for

example, immigrants from certain regions facing

violence or seeking asylum, children who are

undocumented, and women and girls facing domestic

violence. Under Rule 8.4(g), these clinics and the

attorneys serving them could be charged with

19

“discriminating” on the basis of religion, sex, national

origin, or age.

For the millions of Americans whose faith serves

an important role in their daily lives, 5 Rule 8.4(g)

would especially harm their religious communities by

decreasing access to quality legal representation.

Because this Rule expressly includes “sex, gender

identity or expression . . . sexual orientation,” and

“marital status,” it raises concerns for attorneys who

represent religious clients or organizations.

Regardless of the attorney’s own religious affiliation

(or lack thereof), the Rule would have a chilling effect

on the attorney’s ability to zealously represent a faithbased client because the attorney could be disciplined

for “discrimination” in that client representation. In

Obergefell v. Hodges, this Court emphasized that

“religions, and those who adhere to religious doctrines,

may continue to advocate with utmost, sincere

conviction that, by divine precepts, same-sex marriage

should not be condoned,” and it encouraged “an open

and searching debate” on the issue. 576 U.S. 644, 679680 (2015).

At a cultural moment when controversy about

abortion, gender identity, and marriage runs high, it

is crucial to recognize how many diverse religious

groups have long held sincere beliefs about these

issues. At least 20 different faith groups believe that

According to the Pew Research Center, 53% of Americans

reported that their religion is “very important in their daily life.”

Of this group, 73% believe that abortion should be illegal in all or

most cases, and 76% oppose same-sex marriage. “Importance of

religion in one’s life,” Religious Landscape Study, PEW RESEARCH

CENTER (2014), https://perma.cc/BP9L-5NR9.

5

20

sex is biological and cannot or should not be changed

to conform with a person’s gender identity. These

include Christian denominations such as the Amish

community, Assemblies of God, and the Orthodox

Church, but they also include minority faith groups

such as Buddhism, Confucianism, the Falun Gong,

Jehovah’s Witnesses, and Shi’ah and Sunni Muslims. 6

These groups often face religious discrimination due to

cultural prejudice or a lack of understanding by

government officials, and thus it is especially

important that they receive high quality, affordable

legal counsel. Similarly, at least 13 different faith

groups—including Hindus, Navajos, and Zoroastrians

as well as Catholics and Protestants—believe that

abortion is morally wrong because human life is

sacred. 7

Since religious clients and organizations act

according to their sincerely held beliefs protected by

the First Amendment, their attorneys must respect

these beliefs in order to provide effective and zealous

advocacy and representation under the Rules. For

example, many faith-based homeless shelters such as

the Downtown Hope Center in Anchorage, Alaska,

have sex-segregated facilities or admit only biological

females because they care for women who have

6 See, e.g., First Liberty Institute,

Public Comment on Section

1557 NPRM (Oct. 3, 2022), at 4-9, https://perma.cc/97NU-VCMZ

(detailing religious beliefs of 20 different faith groups on sex and

gender).

7 See, e.g., Kiarash Aramesh, Perspectives of Hinduism and

Zoroastrianism on abortion: a comparative study between two

pro-life ancient sisters, J. MED. ETHICS HIST. 12:9 (2019); EXC,

Inc. v. Kayenta District Court, No. SC-CV-07-10 (Navajo Nation

Supreme Court, Sept. 10, 2010).

21

experienced domestic violence. When the Hope Center

was sued by a transgender plaintiff for allegedly

violating a local nondiscrimination policy, Christian

attorneys represented the Center in court. Downtown

Soup Kitchen v. Mun. of Anchorage, 576 F. Supp. 3d

636 (D. Alaska 2021). When one of the attorneys

zealously defended his client’s religious liberty, the

Anchorage Equal Rights Commission brought charges

against his firm, in addition to his client, for violating

local “non-discrimination” ordinances. Pamela Basler

v. Downtown Hope Center, and Brena, Bell &

Clarkson, P.C., No. 18-167 (AERC filed May 15, 2018).

This action violated the First Amendment rights of

both attorney and client and unlawfully interfered

with the attorney-client relationship.

As a nonprofit legal organization representing pro

bono clients of all faiths, First Liberty Institute

currently represents and has represented multiple

clients who were wrongfully accused of discrimination

because of their religious beliefs. Enforcing Rule 8.4(g)

against First Liberty attorneys may compromise their

representation, as they would be forced to choose

between zealously advocating for their client’s rights

and facing bar discipline. Below are a few

representative examples:

•

Melissa and Aaron Klein, devout Christians,

were accused of violating a local nondiscrimination ordinance when they declined

to create a custom cake for a same-sex wedding

because it conveyed a message that would

violate their Christian beliefs. State officials

issued a devastating $135,000 fine that put

them out of business. This Court granted,

22

vacated, and remanded the case in light of 303

Creative v. Elenis. Klein v. Or. Bureau of Lab.

& Indus., 143 S. Ct. 2686 (2023). First Liberty

continues representing the Kleins at the

Oregon Court of Appeals.

•

Robyn Strader is a Baptist nurse practitioner

whose religious beliefs prevent her from

prescribing contraceptives or abortifacient

drugs. CVS refused to grant her a religious

accommodation and fired her instead. First

Liberty filed suit in January 2023. Strader v.

CVS Health Corporation, No. 4:23-cv-00038-P

(N.D. Tex. Jan. 11, 2023).

• Lacey Smith and Marli Brown are Christian

flight attendants who were fired for asking

respectful questions about Alaska Airlines’

open support for the Equality Act. First Liberty

filed suit in May 2022, and currently awaits a

ruling on cross-motions for summary

judgment. Brown & Smith v. Alaska Airlines,

Inc., et al., No. 2:22-cv-668 (W.D. Wash. filed

May 17, 2022).

• Valerie Kloosterman is a Christian physician

assistant whose religious beliefs prevent her

from using biology-obscuring pronouns or

participating in gender-transition drugs or

procedures. University of Michigan Health

refused to grant her a religious accommodation

and fired her instead. First Liberty filed suit in

October 2022, and the court allowed her Free

Exercise, Equal Protection, Title VII, and

Elliot-Larsen Civil Rights Act claims to

23

proceed. Kloosterman v. Metropolitan Health,

No. 1:22-cv-00944 (W.D. Mich. Sept. 20, 2023).

• Dr. Johnson Varkey is a Christian biology

professor who was fired because a few students

complained when he taught that sex is

determined by X and Y chromosomes. First

Liberty reached a favorable settlement

ensuring his reinstatement in February 2024.

•

Dr. Eric Walsh is a devout Seventh-Day

Adventist who is a public health expert and

pastor. After Georgia hired him as district

health director, they listened to his sermons

and fired him because of their religious

content. After litigation, Georgia agreed to pay

Dr. Walsh $225,000 to remedy its religious

discrimination. Walsh v. Georgia Dep’t of

Public Health, et al., No. 1:16-cv-01278 (N.D.

Ga. dismissed Feb. 15, 2017).

•

U.S. Air Force Colonel Bohannon, despite

twenty years of decorated military service, was

accused of unlawful discrimination by Air

Force investigators because he requested a

religious accommodation from signing a samesex spouse appreciation certificate due to his

faith. First Liberty appealed to the Secretary of

the Air Force, and his record was cleared.

In each of these cases, religious individuals were

targeted because of their sincerely held beliefs

regarding gender, sexuality, human life, and

marriage, which came into perceived conflict with

prevailing “non-discrimination” policies in their

24

localities or workplaces. Without zealous pro bono

legal representation, these clients would have had no

remedy for the discrimination they faced because of

their beliefs.

In the same way, Independence Law Center has

represented clients whose religious and moral beliefs

have resulted in legal conflict and the need for legal

representation. The ability to address such needs will

be jeopardized under Rule 8.4(g). The Law Center has

both represented and sued schools regarding such

issues as locker room privacy and athletic

opportunities for female athletes. See, e.g., Doe v.

Boyertown Area Sch. Dist., 893 F.3d 179 (3d Cir. 2018)

(regarding privacy facilities). Since these issues also

involve beliefs about human sexuality and gender,

representing clients in these matters has become

controversial. Rule 8.4(g) strikes at the heart of this

controversy by restricting viewpoint and content on

these topics. Likewise, Independence Law Center’s

representation of clients’ religious, pro-life beliefs

concerning abortifacient drugs stirred criticism by

those who had a different view of sex-based rights.

See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 691 (2014) (representing a Mennonite family and

their business). If Rule 8.4(g) can be used as a weapon

in such situations, the traditional role of attorneys in

providing counsel to diverse clients will be

undermined.

In sum, “[a]nti-discrimination laws and policies

serve undeniably admirable goals, but when those

goals collide with the protections of the Constitution,

they must yield—no matter how well-intentioned.

Fellowship of Christian Athletes v. San Jose Unified

25

Sch. Dist. Bd. of Educ., 82 F.4th 664, 695 (9th Cir.

2023) (en banc). “And ‘religious beliefs need not be

acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.’”

Fulton v. City of Philadelphia, 593 U.S. 522, 532

(2021) (quoting Thomas v. Review Bd. of Ind.

Employment Security Div., 450 U.S. 707, 714 (1981)).

Not only has the First Amendment always protected

unpopular viewpoints, it provides extra protection for

religious viewpoints under both the Free Speech and

Free Exercise Clauses. Kennedy, 509 U.S. at 523.

For these robust protections to have any meaning

for the vast majority of Americans without a law

degree, the same protections must extend to the

attorneys who represent them, or else those clients

cannot seek justice.

CONCLUSION

The Court should grant certiorari.

26

Respectfully submitted,

RANDALL L. WENGER

JEREMY L. SAMEK

JANICE MARTINOGOTTSHALL

INDEPENDENCE LAW

CENTER

23 North Front Street

Harrisburg, PA 17101

(717) 657-4990

rwenger@indlawcenter.org

KELLY J. SHACKELFORD

Counsel of Record

JEFFREY C. MATEER

DAVID J. HACKER

JUSTIN E. BUTTERFIELD

FIRST LIBERTY INSTITUTE

2001 W. Plano Pkwy

Suite 1600

Plano, TX 75075

(972) 941-4444

kshackelford@firstliberty.org

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

1331 Pennsylvania Ave. NW

Suite 1410

Washington, DC 20004

Counsel for Amici Curiae

March 4, 2024