Zachary Greenberg is a Pennsylvania attorney who offers legal training seminars on the First Amendment. His training frequently involves repeating offensive or insensitive speech (including quotes from famous legal opinions), leveraging examples, and hypothetical scenarios.
Yet, in a twist of irony, his very own speech about speech is now at risk under a ruling of the Disciplinary Board of the Pennsylvania Supreme Court, the organization responsible for regulating lawyers in the state.
Case Background
There are exceedingly few instances where governments may validly regulate private speech. Such restrictions are only permissible in the most narrowly defined circumstances. For example, defamation—such as libel or slander—is not a protected form of speech under the First Amendment to the US Constitution, but only because it is tightly defined, and challenging to prove.
Another area where speech might be unprotected is when it constitutes “harassment” in certain contexts. There are a handful of laws that penalize harassing speech, like stalking or threatening others, but those laws uniformly relate to conduct that is merely occurring through speech. It is generally not “harassment” to merely speak one’s mind aloud without any target in mind or even to say offensive things to a specific person.
In Zachary’s case, however, Pennsylvania has attempted to regulate attorney speech that might be considered harassment, even though the speech isn’t targeting anyone or engaging in other conduct besides speech. Pennsylvania has used attorney ethics rules to give teeth to its regulations, by arguing that attorneys owe a unique ethical duty not to engage in certain offensive speech.
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What’s at Stake
If Pennsylvania’s rule is allowed to stand, it would not only infringe on the rights of attorneys in that state to speak their minds freely (even if insensitively or offensively) but could stand as a precedent to open the door for other limits on speech, not just for attorneys, but for all of us in every state.
Our Constitution does not require that every attorney or American refrain from crude, offensive, or even harassing language. In fact, it actually protects such speech.
But Pennsylvania is attempting to undermine this protection. The federal district court agreed with Zachary that his free speech rights would be violated if the State Bar’s regulations went into place, and it prevented the policy from being enforced. Pennsylvania then adjusted its regulation slightly, but not in a way that made Zachary safe from allegations of unethical conduct.
At the Court of Appeals, the court ruled that Zachary lost the ability to sue because Pennsylvania had modified its regulations. The court claimed that Zachary now had nothing to fear, since his legal seminars were safely outside of the zone of the new Pennsylvania rules.
Yet that new rule still regulates speech that could be deemed harassment. The new rule is like the old—unconstitutional. It ought to be struck down.
Mountain States has joined an amicus brief to the Supreme Court of the United States, asking the high court to take up the case and settle the question once and for all. If Pennsylvania’s rule is allowed to stand, it poses a risk of setting precedent in other states, where they may attempt to implement their own unconstitutional regulations on attorney speech.
Our brief clearly spells out the history of regulations surrounding harassment. It offers a convincing argument regarding how Pennsylvania has run afoul of the First Amendment.
Case Timeline
- June 2020: The Disciplinary Board of the Supreme Court of Pennsylvania adopted a rule of conduct governing harassment and bias in the legal profession.
- August 2020: Zachary Greenberg filed a suit to prevent the enforcement of the rule.
- December 2020: The US District Court for the Eastern District of Pennsylvania granted a preliminary injunction to prohibit enforcement of the rule.
- July 2021: Pennsylvania changed the rule in an attempt to strip the court of jurisdiction but left in place the provision allowing punishment for speech.
- March 2022: The District Court again granted an injunction to prohibit enforcement of the rule.
- September 2023: The US Court of Appeals for the Third Circuit reversed the District Court on jurisdictional grounds, leaving the new rule in place.
- March 2024: Mountain States joined an amicus brief with the Manhattan Institute and other amici supporting Zachary’s appeal to the Supreme Court of the United States.
- April 2024: The Supreme Court Denied the Greenberg petition for cert.