Greenberg v. Goodrich
| Decision Date | 24 March 2022 |
| Docket Number | CIVIL ACTION No. 20-03822 |
| Parties | Zachary GREENBERG, Plaintiff, v. John P. GOODRICH, in his official capacity as Board Chair of The Disciplinary Board of the Supreme Court of Pennsylvania, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Adam E. Schulman, Hamilton Lincoln Law Institute, Center for Class Action Fairness, Washington, DC, for Plaintiff.
Michael Daley, Megan Linsley Davis, Supreme Court of PA Administrative Office of PA Courts, Philadelphia, PA, for Defendants James C. Haggerty, John F. Cordisco, Celeste L. Dee, Christopher M. Miller, Gretchen A. Mundorff, Dion G. Rassias, Robert L. Repard, Eugene F. Scanlon, Jr., David S. Senoff, Thomas J. Farrell, Raymond S. Wierciszewski, John P. Goodrich, Jerry M. Lehocky, John C. Rafferty, Jr.
Michael Daley, Supreme Court of PA Administrative Office of PA Courts, Philadelphia, PA, for Defendants Robert J. Mongeluzzi, Shohin H. Vance.
This Court fully commends and supports the aims and intentions of the American Bar Association ("ABA") in its creation of the ABA Model Rule 8.4(g) as a statement of an ideal and as a written conviction that we must be constantly vigilant and work towards eliminating discrimination and harassment in the practice of law. If the ABA were to apply the Model Rule as a standard to maintain good standing for its voluntary members, it would indeed be the gold standard. It is a measure that most members of the ABA would aspire to, as would the vast number of those in the profession not represented by the ABA.1 When, however, the ABA standard is adopted by government regulators and applied to all Pennsylvania licensed lawyers, as in this instance by the Disciplinary Board of the Supreme Court of Pennsylvania (the "Board"), it must pass constitutional analysis and muster. The ABA's power over its voluntary membership is of an immensely different kind, quality, and force than that of the government over its constituents. The government cannot approach free speech in the same manner in which the ABA may choose to do so with its voluntary membership. Here, the Board adopted its own version of the ABA Model Rule and Plaintiff Zachary Greenberg challenges the Rule on the basis that it violates his individual right to free speech. Plaintiff argues that the Board should not have the power to investigate, interrogate, and discipline attorneys based on this Rule, and the regulation is otherwise too vague to equitably enforce.
Before the Court are Defendants’ Motion for Summary Judgment (ECF No. 61) and Plaintiff's Motion for Summary Judgment (ECF No. 65).
Plaintiff Mr. Greenberg is a licensed attorney in Pennsylvania and was admitted to the Pennsylvania Bar in May 2019. ECF No. 53 ¶¶ 3–4.2 Mr. Greenberg is employed as a Senior Program Officer at the Foundation for Individual Rights in Education and speaks and writes on several topics, including freedom of speech, freedom of association, due process, legal equality, and religious liberty. Id. ¶¶ 6–7. Mr. Greenberg is also National Secretary and a member of the First Amendment Lawyers Association, which conducts continuing legal education ("CLE") events for its members. Id. ¶¶ 8–9. For both affiliations, Plaintiff speaks at CLE and non-CLE events on a variety of "controversial" issues. Id. ¶¶ 10–18. Mr. Greenberg has written and spoken against banning hate speech on university campuses and campaign finance speech restrictions. Id. ¶ 10. For example, Mr. Greenberg spoke at a CLE in Pennsylvania on his interpretation of the legal limits of a university's power to punish students for online expression deemed offensive or prejudiced. Id. ¶ 14. Mr. Greenberg expects to continue speaking on issues such as Title IX's effect on due process rights of individuals accused of sexual assault, university policies on misconduct, professional academic freedom, religious freedom on campuses, and others. Id. ¶ 18. Mr. Greenberg considers these topics to be "polarizing" and "fears that in today's climate he could be subject to professional disciplinary processes or sanction if his speech is perceived to violate the [Rule]." ECF No. 65–1 at 3.
Mr. Greenberg supports his concerns that his speech will be either chilled or subject to Rule 8.4(g)’s disciplinary process with numerous examples of public outcry and investigation after speakers in similar situations expressed information related to controversial topics. ECF No. 49 ¶¶ 113–114; ECF No. 54. For example, in 2013, Judge Edith Jones of the Fifth Circuit spoke at the University of Pennsylvania Law School and stated that members of certain racial groups commit crimes at rates disproportionate to their population, to which an attorney, among others, filed an ethics complaint alleging racial bias that resulted in a nearly two-year process of investigation. ECF No. 54 ¶¶ 44–45. In 2020, Professor Helen Alvare of George Mason University School of Law was accused of homophobic bias by Duke University School of Law students after supporting religious freedom accommodation laws and writing amicus briefs opposing gay marriage, in an effort by the law students to disinvite the speaker from coming to their university. Id. ¶ 50. Mr. Greenberg intends to continue speaking at CLE presentations and fears that his own discussion of "controversial" subjects will expose him to such investigation or discipline. ECF No. 53 ¶¶ 62–65.
The Board first considered adopting a version of the ABA Model Rule of Professional Conduct 8.4(g) in Pennsylvania in 2016.3 ECF Id. ¶ 42; ECF No. 61 at 8. After an iterative process of notice and comment between December 2016 and June 2020, the Supreme Court of Pennsylvania approved the recommendation of the Board4 and ordered that Pennsylvania Rule of Professional Conduct ("Pa.R.P.C") 8.4 be amended to include the below Rule 8.4(g) (the "Old Rule") along with two comments, (3) and (4), (together, the "Old Amendments"). ECF No. 53 ¶¶ 43–45, 47.
The Old Amendments state:
ECF No. 1 ¶ 40 (quoting Pa.R.P.C. 8.4 ).
The Old Amendments were scheduled to take effect on December 8, 2020. ECF No. 53 ¶ 47. On August 6, 2020, Plaintiff filed a complaint in this Court alleging that the Old Amendments consist of content-based and viewpoint-based discrimination and are overbroad in violation of the First Amendment (Count 1) and that the Old Amendments are unconstitutionally vague in violation of the Fourteenth Amendment (Count 2). ECF No. 1. On October 16, 2020, Defendants filed a Motion to Dismiss (ECF No. 15), and Plaintiff filed a Motion for Preliminary Injunction (ECF No. 16). This Court held oral argument on November 13, 2020, addressing both parties’ motions. ECF No. 26. On December 8, 2020, this Court entered an Order denying Defendants’ Motion to Dismiss (ECF No. 30) and an Order granting Plaintiff's Motion for Preliminary Injunction (ECF No. 31). This Court found that Mr. Greenberg's allegation that the Old Amendments will have a chilling effect on his speech sufficient to satisfy the injury-in-fact requirement of standing because it was objectively reasonable that his speeches are considered prejudiced or offensive by some members of the audience.5 Greenberg v. Haggerty , 491 F. Supp. 3d 12, 18–23 (E.D. Pa. 2020) ; ECF No. 29 at 18–23 (hereinafter the "Dec. 2020 Opinion"). Plaintiff's claims were further supported by his examples of speakers who had disciplinary complaints filed against them when discussing similar topics. Dec. 2020 Opinion at 19. Such examples also supported Plaintiff's claim of a credible threat of prosecution because complaints have been filed against speakers under similar circumstances. Id. at 21. The Court ultimately held that the Old Amendments constitute viewpoint-based discrimination in violation of the First Amendment because it favored a subset of messages by permitting the government to determine what speech is biased or prejudiced based on whether the viewpoint is socially or politically acceptable at the time. Id. at 35.
Defendants filed an appeal of these Orders to the Third Circuit and the case was stayed pending resolution of the appeal. ECF Nos. 32–35. Defendants voluntarily dismissed without prejudice their appeal of the Orders on March 17, 2021 (ECF No. 37; ECF No. 53 ¶ 50) and the case was removed from stay on August 10, 2021 (ECF No. 48).
During this time, the Supreme Court of Pennsylvania revised the Old Amendments by Order on July 26, 2021.6 See ECF No. 61 at 5; see also 51 Pa.B. 5190 (Aug. 21, 2021).7 The Board did not follow the process of public notice and comment that it employed for the Old Amendments. ECF No. 53 ¶ 54. The revised Rule 8.4(g) (hereinafter the "Rule") and its revised Comments (together, "the Amendments") state:
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