The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In June, Pennsylvania adopted a variant of ABA Model Rule 8.4(g). (I wrote a letter in opposition to that proposal, as well as similar proposals in other states). Today, the Hamilton Lincoln Law Institute (HLLI) filed a suit challenging the constitutionality of that rule. HLLI represents Zachary Greenberg, and attorney from FIRE. The complaint turns entirely on Free Speech concerns, and does not implicate Free Exercise or RFRA claims.
The suit explains:
Zachary Greenberg, a Pennsylvania-licensed attorney working for a non-profit organization that advocates on behalf of students' constitutional rights, regularly speaks at Continuing Legal Education ("CLE") and non-CLE events on a variety of hot-button legal issues including the constitutionality of hate speech regulation, Title IX's effect on the Due Process rights of individuals accused of sexual assault and misconduct, campaign finance speech restrictions, university policies on fraternity and sorority misconduct, professorial academic freedom, university regulation of hateful expression online, attorney free speech rights, and abusive public records requests. Rule 8.4(g) threatens to impose civil sanction on Plaintiff if an audience member misconstrues his speech as a manifestation of bias or prejudice and registers a complaint with the Office of Disciplinary Counsel.
This is the first constitutional challenge to a variant of Model Rule 8.4(g).
In light of recent events, and a formal ABA opinion on the rule, I suspect more states will look to adopt the rule. If the HLLI suit is unsuccessful, those states will be emboldened to adopt Rule 8.4(g). If the HLLI suit is successful, other states will have to alter plans of accepting the rule.