A federal appeals court in Philadelphia questioned the ability of a free-speech advocate and Pennsylvania attorney to pursue a challenge against the state's anti-harassment and discrimination professional rule for lawyers on First Amendment grounds. The 3rd Circuit U.S. Court of Appeals panel queried whether Zachary Greenberg, the plaintiff and a program officer for the non-profit Foundation for Individual Rights and Expression, had to stand to sue. They inquired if Greenberg's presentations would breach the rule prohibiting lawyers from knowingly partaking in discriminatory behavior based on race, sex, and religion. The Pennsylvania rule mimics an American Bar Association rule.
Zachary Greenberg claims that his presentations on offensive and derogatory language may lead him to violate the Pennsylvania rule. However, the state's Office of Disciplinary Counsel has clarified that it would not take legal action against such behavior. Judge Thomas Ambro commended the Office of Disciplinary Counsel for performing its duties without posing any threat to Greenberg. However, Greenberg argues that he would still feel compelled to censor himself, fearing that someone might take offense and lodge a complaint against him, even if the state promised not to press charges. Lisa Blatt, a representative for the disciplinary board from the law firm Williams & Connolly in Washington, D.C., refutes the assertion that the rule stifles speech, calling it "frivolous."
According to Lisa Blatt, there has been no instance of a lawyer receiving punishment for expressing controversial or ideological views. In March 2022, U.S. District Judge Chad Kenney barred the rule, deeming it too extensive and at odds with the First Amendment. While the American Bar Association and other bar organizations have endorsed the practice, conservative and religious groups have opposed it, citing the potential for misuse by bar officials in the future.
