Friday, December 11, 2020

US District Judge finds Pennsylvania's version of Model Rule 8.4(g) is unconstitutional

Long time readers of this blog know that I have posted many stories about Model Rule 8.4(g) since way back when it was first proposed.  Go here and scroll down to see all the posts on this subject (in reverse chronological order, meaning the most recent stories will be at the top).

You might also remember that I have expressed doubts as to the validity of the rule given that it regulates speech as well as conduct.  

For that and other reasons, the rule has been controversial and states have been very slow in adopting it, with only one state adopting it "as is", while only 5 or 6 other states adopting it with modifications. About ten states actually rejected proposals to adopt it.

Pennsylvania is one of the states that adopted a modified version of the rule.  There, the rule was adopted with some modifications and was scheduled to go into effect this month.  But almost as soon as it was adopted, the Hamilton Lincoln Law Institute filed a complaint challenging the rule's constitutionality.  (See here.)

And so, a few days ago, the US District Court issued an opinion in which it denied the state's motion to dismiss holding that the new rule is unconstitutional.  

The opinion is interesting and you should read it in full.  The case is called Greenberg v. Haggerty.  You can find the full opinion here.  

Here are some of the key passages:

There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.

Therefore, the Court holds that the Amendments, Rule 8.4(g) and Comments 3 and 4, consist of unconstitutional viewpoint discrimination in violation of the First Amendment. . . . Defendants’ Motion to Dismiss is denied. 

The court also denied defendants’ motion to dismiss as to the count in the complaint that alleged vagueness.

The Volokh Conspiracy has commentary here and here.

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