(Photo by Joe Kovacs)
A fight has erupted between a lawyer who advocates for free speech rights and the Disciplinary Board of the Supreme Court of Pennsylvania, which has imposed new speech code rules for lawyers.
Zach Greenberg, a senior program officer for the Foundation in Individual Rights and Expression, has written about his agenda at the organization's website.
"What are the rights of those who defend our rights? Do lawyers surrender their First Amendment freedoms when they pass the bar? When does zealous advocacy turn into harassment or discrimination?" he questioned.
He said this case appears to be the first time that a federal appellate court "will rule on the clash between the First Amendment and a new spate of restrictive ethical rules for attorneys advanced by the American Bar Association."
The dispute is at the 3rd U.S. Circuit Court of Appeals now. Earlier, a district judge had ruled against the rules, imposed under the state's Rule of Professional Conduct 8.4(g) which are "designed to address harassment and discrimination in the legal profession."
The question: Is it a paternalistic speech code or a necessary restraint on attorney misconduct?
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He said the rule bans "conduct that is intended to intimidate, denigrate, or show hostility or aversion toward a person" or conduct "that a lawyer knows manifests an intention: to treat a person as inferior … [or] to disregard relevant considerations of individual characteristics or merit."
It's all encompassing, imposing the rule at "judicial boards, conferences or committees; continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered."
He explained the rule apparently was triggered by "illegal and inappropriate harassment taking place at firm outings, dinners and bar association events."
But, he explained, constitutional free speech rights cannot be cut off simply for someone to feel good about all the speech they hear.
He said that the First Amendment does not allow the government to redefine harassment and discrimination to censor protected speech — even for a noble purpose.
"We explained how words that 'denigrate, or show hostility or aversion' encompass merely offensive speech" and that is "fully protected by the First Amendment," he wrote.
He said at the district court level, the judge said, "W]hile the court admires the ideal of high standards of professionalism and benevolence which the rule would have Pennsylvania lawyers aspire to, the state simply does not have the authority to police professionals in their daily lives to root out speech the state deems to be below 'common decency.'"
He explained that the "First Amendment does not allow the government to hold speech codes over attorneys’ heads if disciplinary boards promise to use this power responsibly."
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