Zachary Greenberg v. Jerry M. Lehocky

                                        PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                       No. 22-1733
                       ___________


                ZACHARY GREENBERG

                             v.

   JERRY M. LEHOCKY, in his official capacity as Board
   Chair of the Disciplinary Board of the Supreme Court of
Pennsylvania; DION G. RASSIAS, in his official capacity as
 Board Vice-Chair of the Disciplinary Board of the Supreme
 Court of Pennsylvania; JOSHUA M. BLOOM, in his official
capacity as Member of the Disciplinary Board of the Supreme
  Court of Pennsylvania; CELESTE L. DEE, in her official
capacity as Member of the Disciplinary Board of the Supreme
  Court of Pennsylvania; LAURA E. ELLSWORTH, in her
 official capacity as Member of the Disciplinary Board of the
     Supreme Court of Pennsylvania; CHRISTOPHER M.
      MILLER, in his official capacity as Member of the
  Disciplinary Board of the Supreme Court of Pennsylvania;
    ROBERT J. MONGELUZZI, in his official capacity as
 Member of the Disciplinary Board of the Supreme Court of
 Pennsylvania; GRETCHEN A. MUNDORFF, in her official
capacity as Member of the Disciplinary Board of the Supreme
  Court of Pennsylvania; JOHN C. RAFFERTY, JR., in his
 official capacity as Member of the Disciplinary Board of the
      Supreme Court of Pennsylvania; HON. ROBERT L.
      REPARD, in his official capacity as Member of the
  Disciplinary Board of the Supreme Court of Pennsylvania;
  DAVID S. SENOFF, in his official capacity as Member of
        the Disciplinary Board of the Supreme Court of
 Pennsylvania; SHOHIN H. VANCE, in his official capacity
as Member of the Disciplinary Board of the Supreme Court of
     Pennsylvania; THOMAS J. FARRELL, in his official
    capacity as Chief Disciplinary Counsel of the Office of
Disciplinary Counsel; RAYMOND S. WIERCISZEWSKI, in
 his official capacity as Deputy Chief Disciplinary Counsel of
               the Office of Disciplinary Counsel,
                                              Appellants
                  _______________________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
            D.C. Criminal No. 2-20-cv-03822
       (District Judge: Honorable Chad F. Kenney)
                     ______________

                 ARGUED: April 13, 2023

Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO,
                  Circuit Judges.

                  (Filed: August 29, 2023)

Lisa S. Blatt [ARGUED]
Aaron Z. Roper
Amy M. Saharia




                              2
Peter Jorgensen
Williams & Connolly
680 Maine Avenue SW
Washington, DC 20024
   Counsel for Appellants

Omar Gonzalez-Pagan
Ethan Rice
Lambda Legal
120 Wall Street
19th Floor
New York, NY 10005

Karen Loewy
Lambda Legal
1776 K Street NW
7th Floor
Washington, DC 20006
   Counsel for Amicus Appellant Lambda Legal Defense &
Education Fund Inc.

Abraham C. Reich
Robert S. Tintner
Beth L. Weisser
Fox Rothschild
2000 Market Street
20th Floor
Philadelphia, PA 19103
   Counsel for Amicus Appellant American Bar Association

Carmen G. Iguina Gonzalez
Joshua A. Matz




                            3
Raymond P. Tolentino
Kaplan Hecker & Fink
1050 K Street NW
Suite 1040
Washington, DC 20001
   Counsel for Amicus Appellants Stephen Gillers and
Barbara S. Gillers

Joshua J.T. Byrne
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
   Counsel for Amicus Appellants Rebecca Aviel, Myles V.
Lynk and Ann Ching

Brittany C. Armour
Hogan Lovells US
1735 Market Street
23rd Floor
Philadelphia, PA 19103

German A. Gomez
Hogan Lovells US
555 Thirteenth Street NW
Columbia Square
Washington, DC 20004
   Counsel for Amicus Appellants Hispanic National Bar
Association, National Asian Pacific American Bar
Association, Asian Pacific American Bar Association of
Pennsylvania, National Bar Association, National Native
American Bar Association, National LGBTQ+ & Bar
Association, and National Association of Women Lawyers




                             4
Theodore H. Frank
Adam E. Schulman [ARGUED]
Hamilton Lincoln Law Institute
1629 K Street NW
Suite 300
Washington, DC 20006
   Counsel for Appellee

Ilya Shapiro
Manhattan Institute
52 Vanderbilt Avenue
New York, NY 10017
   Counsel for Amicus Appellee Manhattan Institute, Bader
Family Foundation, Hans Bader

Eugene Volokh
UCLA School of Law
385 Charles E. Young Drive
Los Angeles, CA 90095
   Counsel for Amicus Appellee Women’s Liberation Front,
Concerned Woman for America

Richard A. Samp
New Civil Liberties Alliance
1225 19th Street NW
Suite 450
Washington, DC 20036
   Counsel for Amicus Appellee New Civil Liberties Alliance

John J. Bursch
Alliance Defending Freedom
440 First Street NW
Suite 600




                             5
Washington, DC 20001

Jacob P. Warner
Alliance Defending Freedom
15100 N 90th Street
Scottsdale, AZ 85260
   Counsel for Amicus Appellee Alliance Defending Freedom

Randall L. Wenger
Independence Law Center
23 N Front Street
Harrisburg, PA 17101
   Counsel for Amicus Appellees Independence Law Center
and First Liberty Institute

L. Theodore Hoppe
Suite 215
25 W. Second Street
Second Flr.
Media, PA 19063
   Counsel for Amicus Appellee Christian Legal Society

Reilly Stephens
Liberty Justice Center
440 N Wells Street
Suite 200
Chicago, IL 60654

Daniel R. Suhr
National Center for Justice & Liberty
747 N Jackson Street
Suite 210
Chicago, IL 60654




                              6
  Counsel for Amicus Appellees Bruce A. Green and
Rebecca Roiphe

Deborah J. Dewart
111 Magnolia Lane
Hubert, NC 28539
   Counsel for Amicus Appellee Institute for Faith and
Family

Ethan Blevins
Pacific Legal Foundation
555 Capitol Mall
Suite 1290
Sacramento, CA 95814
   Counsel for Amicus Appellee Pacific Legal Foundation

Johanna E. Markind
#280
18 Maple Avenue
Barrington, RI 02806
   Counsel for Amicus Appellee Legal Insurrection
Foundation

Steven W. Fitschen
National Legal Foundation
524 Johnstown Road
Chesapeake, VA 23322
   Counsel for Amicus Appellees National Legal Foundation,
Pacific Justice Institute, and Justice & Freedom Law Center

Larry L. Crain
Crain Law Group
5214 Maryland Way




                             7
Suite 402
Brentwood, TN 37027
   Counsel for Amicus Appellee Patrick G. Gould
                   _________________

                OPINION OF THE COURT
                   _________________

SCIRICA, Circuit Judge.

       The Supreme Court of Pennsylvania amended
Pennsylvania Rule of Professional Conduct 8.4 to prohibit
harassment and discrimination in the practice of law. Plaintiff
Zachary Greenberg is a Pennsylvania-licensed attorney who
regularly gives continuing legal education presentations about
First Amendment protections for offensive speech. His
presentations involve quoting offensive language from judicial
opinions and discussing arguably controversial topics.
Greenberg fears his speech at these presentations will be
interpreted as harassment or discrimination under the Rule. He
alleges the Rule violates the First Amendment and is
unconstitutionally vague. The District Court agreed with him
and enjoined enforcement of the Rule.

       We determine Greenberg lacks standing to bring his
challenge. Rule 8.4(g) does not generally prohibit him from
quoting offensive words or expressing controversial ideas, nor
will Defendants impose discipline for his planned speech.
Thus, any chill to his speech is not objectively reasonable or
cannot be fairly traced to the Rule. We will reverse.




                              8
                               I.

        The Pennsylvania Constitution vests the Pennsylvania
Supreme Court with the power to regulate the practice of law
in the Commonwealth. Pa. Const. art. V, § 10(c). To carry out
this responsibility, the Pennsylvania Supreme Court enacts the
Pennsylvania Rules of Professional Conduct for all attorneys
licensed in the jurisdiction and empowers the Disciplinary
Board of the Supreme Court of Pennsylvania to regulate the
conduct of Pennsylvania attorneys according to those Rules.

        Anyone may file a complaint against a Pennsylvania-
licensed attorney for violating the Rules of Professional
Conduct. Within the Disciplinary Board, the Office of
Disciplinary Counsel investigates such complaints. If the
Office of Disciplinary Counsel determines a complaint is
frivolous or that policy or prosecutorial discretion warrants
dismissal, it may dismiss the complaint without requesting a
response from the attorney. From 2016–2018, the Office of
Disciplinary Counsel dismissed 87% of complaints without
requesting a response from an attorney. If an investigation
finds that attorney discipline may be appropriate, the
recommendation is reviewed by the Chief Disciplinary
Counsel. The Chief Disciplinary Counsel directs the Office of
Disciplinary Counsel’s interpretation of the Rules of
Professional Conduct and must grant express approval for any
disciplinary recommendation. Depending on the disposition
and severity of the reprimand, the Office of Disciplinary
Counsel’s disciplinary recommendations may proceed to a
hearing, with de novo review by the Disciplinary Board and
ultimately the Pennsylvania Supreme Court. Generally,
investigations into attorney discipline are kept confidential and
details are only made public after the Board pursues discipline.




                               9
Pa. Disciplinary Bd. R. 93.102 (2022); Pa. R. Disciplinary
Enf’t 402(a) (2022).

       The regulation of harassment or discrimination by
attorneys has evolved over the decades. In 1983, the American
Bar Association (ABA) first adopted the Model Rules of
Professional Conduct. These rules are not binding on attorneys
but serve as a model for states to form their own rules of
conduct.

        Model Rule 8.4 specifies, among other things, that it is
“professional misconduct for a lawyer to . . . engage in conduct
that is prejudicial to the administration of justice.” Model
Rules of Pro. Conduct r. 8.4(d) (Am. Bar Ass’n 2016). In 1998,
the ABA adopted a comment to Model Rule 8.4 clarifying that
it was professional misconduct for an attorney to “knowingly
manifest[] by words or conduct, bias or prejudice” based on
certain protected characteristics.1 Model Rules of Pro. Conduct
r. 8.4 cmt. 2 (Am. Bar Ass’n 1998). But the scope of that
comment was limited to words or conduct “in the course of
representing a client” that “are prejudicial to the administration
of justice.” Id.

       In 2014, to advance its goal of eliminating bias in the
legal profession, the ABA began considering amending Model
Rule 8.4 to “reflect the changes in law and practice since
1998.” JA249. The result two years later was the adoption of
Model Rule 8.4(g), which added specific antiharassment and

1
  Those characteristics include “race, sex, religion, national
origin, disability, age, sexual orientation, [and] socioeconomic
status.” Model Rules of Pro. Conduct r. 8.4 cmt. 2 (Am. Bar
Ass’n 1998).




                               10
antidiscrimination provisions within the black letter of the
rule—not the commentary. Model Rule 8.4(g) also expanded
the scope of the 1998 comment from conduct “in the course of
representing a client” to “conduct related to the practice of
law.” Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass’n
2016). The ABA reasoned the Model Rule should prohibit
harassment and discrimination beyond the scope of
representing a client—such as “bar association functions” or
“law firm social events.” ABA Comm. on Ethics & Pro. Resp.,
Formal Op. 493, at 4 (2020). Model Rule 8.4(g) currently
prohibits “harassment or discrimination” based on certain
protected characteristics2 “related to the practice of law.”
Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass’n 2016).

       Consistent with the ABA’s goal of eliminating bias in
the legal profession, many states have adopted their own
provisions prohibiting some form of attorney bias, prejudice,
harassment, or discrimination. Forty-four jurisdictions’ rules
of professional conduct, either directly or through
commentary, regulate verbal manifestations of bias, prejudice,
harassment, or discrimination. Thirteen jurisdictions (other
than Pennsylvania) regulate verbal bias, prejudice, harassment,
or discrimination by attorneys outside client representation or
operation of a law practice.

      Historically, Pennsylvania has supported adoption of
the ABA Model Rules in its Rules of Professional Conduct to
“promote consistency in application and interpretation of the

2
  Those protected characteristics are race, sex, religion,
national origin, ethnicity, disability, age, sexual orientation,
gender identity, marital status, and socioeconomic status.
Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass’n 2016).




                              11
rules from jurisdiction to jurisdiction.” 

 (Dec.
3, 2016). Thus, Pennsylvania considered its own amendment
conforming to Model Rule 8.4(g) in 2016. 

 That fall, the
Pennsylvania Bar Association House of Delegates approved a
recommendation that the Supreme Court of Pennsylvania
adopt an antiharassment and antidiscrimination rule of
professional conduct. After over two years of “deliberation,
discussion, and extensive study,” the Disciplinary Board
recommended a proposed amendment to Pennsylvania Rule of
Professional Conduct 8.4. 

 (Aug. 31, 2019).
The Board emphasized that the “proposed rule promotes the
profession’s goal of eliminating intentional harassment and
discrimination, assures that the legal profession functions for
all participants, and affirms that no lawyer is immune from the
reach of law and ethics.” 

       The Pennsylvania Supreme Court adopted the proposed
recommendation in 2020. It enacted Pennsylvania Rule of
Professional Conduct 8.4(g), which provided that it is
professional misconduct for a lawyer to, “in the practice of law,
by words or conduct, knowingly manifest bias or prejudice, or
engage in harassment or discrimination, as those terms are
defined in applicable federal, state or local statutes or
ordinances, including but not limited to bias, prejudice,
harassment or discrimination based upon” eleven protected
grounds.3 

 (June 20, 2020). The Pennsylvania
Supreme Court also added two comments to the Rule.
Comment 3 clarified that “the practice of law” includes

3
  The protected grounds are “race, sex, gender identity or
expression, religion, national origin, ethnicity, disability, age,
sexual orientation, marital status, [and] socioeconomic status.”

 (June 20, 2020).




                               12
“continuing legal education seminars, bench bar conferences
and bar association activities where legal education credits are
offered.” 

 Comment 4 explained that prohibited conduct
would be defined by substantive antidiscrimination and
antiharassment statutes and case law. 

        Before the amendment was scheduled to take effect,
Plaintiff Zachary Greenberg sued members of the Disciplinary
Board of the Pennsylvania Supreme Court as well as the
Board’s Chief and Deputy Chief Disciplinary Counsel.
Greenberg is a Pennsylvania-licensed attorney who regularly
presents continuing legal education (“CLE”) seminars about
the First Amendment. He also speaks at non-CLE seminars
about First Amendment rights related to university policies
banning hate speech, due process protections for students
accused of sexual misconduct, religious speech that espouses
discriminatory views, and political speech through campaign
contributions. Greenberg believes some audience members
will find his presentations—which include quotations of racial
epithets from judicial opinions and are inclined towards
arguably controversial positions—to be “biased, prejudiced,
offensive, and potentially hateful.” Compl. ¶¶ 63–64,
Greenberg v. Haggerty, No. 20-cv-3822 (E.D. Pa. Aug. 6,
2020), ECF No. 1. As a result, he fears they will file a bar
disciplinary complaint against him. He plans to continue
speaking at CLE events on these topics, but alleges “the
existence of Rule 8.4(g) and the uncertainty surrounding the
scope of Rule 8.4(g) [would] chill his speech” and cause him
to alter his lectures. Id. ¶¶ 60, 65. He claimed Pennsylvania’s
Rule 8.4(g), as adopted in 2020, violated the First Amendment
and was unconstitutionally vague.

       Greenberg sought a declaratory judgment that the Rule




                              13
was unconstitutional and an injunction prohibiting its
enforcement. He then moved to preliminarily enjoin
Defendants from enforcing any part of Rule 8.4(g). Defendants
moved to dismiss the suit, arguing that Greenberg lacked
standing and that the Rule did not violate either the First or
Fourteenth Amendment.

        The District Court denied Defendants’ motion to
dismiss and preliminarily enjoined enforcement of Rule 8.4(g)
in its entirety. It held that Greenberg had standing: His plan to
“repeat[] slurs or epithets” or “engag[e] in discussion with his
audience members about the constitutional rights of those who
do and say offensive things” was “arguably proscribed by Rule
8.4(g),” and he faced a “credible threat of prosecution” because
he “demonstrated that there is a substantial risk that [Rule
8.4(g)] will result in [his] being subjected to a disciplinary
complaint or investigation.” Greenberg v. Haggerty, 

, 24 (E.D. Pa. 2020). Thus, the District Court
determined Greenberg’s allegation that his speech was chilled
was objectively reasonable. Ultimately, the trial court found it
persuasive that Defendants offered no guarantee they would
not “discipline his offensive speech even though they have
given themselves the authority to do so.” 

       Defendants first sought interlocutory review but later
voluntarily dismissed their appeal and instead amended Rule
8.4(g). That amendment produced the current form of Rule
8.4(g) and commentary, the relevant portions of which follow:

       It is professional misconduct for a lawyer to . . .

       (g) in the practice of law, knowingly engage in
       conduct       constituting    harassment     or




                               14
discrimination based upon race, sex, gender
identity or expression, religion, national origin,
ethnicity, disability, age, sexual orientation,
marital status, or socioeconomic status. . . .

Comment [3]: For the purposes of paragraph (g),
conduct in the practice of law includes
(1) interacting with witnesses, coworkers, court
personnel, lawyers, or others, while appearing in
proceedings before a tribunal or in connection
with the representation of a client; (2) operating
or managing a law firm or law practice; or
(3) participation    in     judicial      boards[,]
conferences, or committees; continuing legal
education seminars; bench bar conferences; and
bar association activities where legal education
credits are offered. The term “the practice of
law”      does     not     include       speeches,
communications, debates, presentations, or
publications given or published outside the
contexts described in (1)–(3).

Comment [4]: “Harassment” means conduct that
is intended to intimidate, denigrate or show
hostility or aversion toward a person on any of
the bases listed in paragraph (g). “Harassment”
includes sexual harassment, which includes but
is not limited to sexual advances, requests for
sexual favors, and other conduct of a sexual
nature that is unwelcome.

Comment [5]: “Discrimination” means conduct
that a lawyer knows manifests an intention: to




                        15
       treat a person as inferior based on one or more of
       the characteristics listed in paragraph (g); to
       disregard relevant considerations of individual
       characteristics or merit because of one or more
       of the listed characteristics; or to cause or attempt
       to cause interference with the fair administration
       of justice based on one or more of the listed
       characteristics.

JA206–07 ¶¶ 57–60 (Pa. R. Pro. Conduct 8.4(g) & cmts. 3–5).

       Defendants agreed not to enforce the Rule until the trial
court decided Greenberg’s challenge. Greenberg then filed an
amended complaint challenging the amended Rule 8.4(g). In
that complaint, he committed to continue speaking at CLE and
non-CLE events. But he reaffirmed his belief “that every one
of his speaking engagements on First Amendment issues
carries the risk that an audience member will file a bar
disciplinary complaint against him based on the content of his
presentation under Rule 8.4(g).” JA162 ¶ 102. Thus, he
explained his intention to “refrain from speaking engagements
on controversial issues” and to alter his presentations to
“reduce the risk of an audience member reporting his
expression.” 

 ¶¶ 103–04. He expressed ongoing concern that
a “disciplinary investigation would harm [his] professional
reputation, available job opportunities, and speaking
opportunities.” Id. ¶ 108.

      Both sides moved for summary judgment. In support of
their motion, Defendants submitted a declaration from
Defendant Thomas Farrell, Pennsylvania’s Chief Disciplinary
Counsel. In that role, Farrell has authority to direct and
determine the Office of Disciplinary Counsel’s policy on




                                16
handling complaints raising First Amendment issues. Farrell
stated that the Office of Disciplinary Counsel “interprets Rule
8.4(g) as encompassing only conduct which targets individuals
by harassing or discriminating against an identifiable person,”
and “does not interpret Rule 8.4(g) as prohibiting general
discussions of case law or ‘controversial’ positions or ideas.”
JA276 ¶ 7. Farrell stated that Greenberg’s planned
presentations, speeches, and writings do not violate Rule 8.4(g)
and that the Office of Disciplinary Counsel would not pursue
discipline because of them. JA276–78 ¶¶ 8–17; see JA287–88
(any complaint based on the conduct described in Greenberg’s
complaint would be “frivolous”). Defendants argued that
Greenberg lacked standing to challenge the current form of
Rule 8.4(g). In response, Greenberg argued that the recent
amendments to the Rule and Farrell’s declaration—which
arose after the commencement of litigation—concerned
mootness rather than standing.

        The District Court granted Greenberg’s motion for
summary judgment and denied Defendants’ motion for
summary judgment. It held the recent amendments to the Rule
and the Farrell Declaration did “not affect [its] prior decision
on standing in the least” and found no “compelling reason to
revoke its prior ruling on standing.” Greenberg v. Goodrich,

, 189 (E.D. Pa. 2022). It determined the
amendments to the Rule and the Farrell Declaration were
relevant only to mootness—not standing—because they arose
after the commencement of litigation. It held the amendments
and Farrell Declaration did not moot the case. On the merits,
the trial court determined Rule 8.4(g) violated the First
Amendment on several bases and was unconstitutionally
vague. 

 at 206–20, 222–25 Thus, it permanently enjoined
enforcement of Rule 8.4(g) in its entirety. Defendants timely




                              17
appealed.

                              II.

       The District Court had original jurisdiction under 

 and 1343(a). We have appellate jurisdiction
under 

. We review the District Court’s
summary judgment decisions de novo. Sikkelee v. Precision
Airmotive Corp., 

 (3d Cir. 2018). Summary
judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

                              III.

       To have standing to sue, Greenberg must establish he
suffers an actual or imminent injury that is fairly traceable to
Rule 8.4(g).4 He cannot. His planned speech does not arguably

4
  The amendment to Rule 8.4(g) raises an issue of standing and
not mootness because Greenberg replaced his initial complaint
with a subsequent pleading challenging the new Rule. See
Rockwell Int’l Corp. v. United States, 

, 473–74
(2007) (“[W]hen a plaintiff files a complaint in federal court
and then voluntarily amends the complaint, courts look to the
amended complaint to determine jurisdiction.”); Persinger v.
Sw. Credit Sys. L.P., 

 (7th Cir. 2021)
(“When reviewing potential injuries for standing purposes, we
are constrained by the operative complaint.”); GAF Bldg.
Materials Corp. v. Elk Corp. of Dallas, 

 (Fed.
Cir. 1996) (recognizing that the proper focus in determining
jurisdiction is on “the facts existing at the time the complaint
under consideration was filed”).




                              18
violate the Rule, and he faces no credible threat of
enforcement. Thus, it is not objectively reasonable for
Greenberg to alter his speech in response to the Rule. His
arguments to the contrary are largely based on his perception
of the social climate, which he sees as infested by
“[w]idespread illiberal impulses for ‘safetyism.’” Greenberg
Br. 45 (quoting Greg Lukianoff & Jonathan Haidt, The
Coddling of the American Mind 268–69 (2018)). But such
impulses do not supply Greenberg with a concrete injury fairly
traceable to the challenged Rule. A likelihood of offending
audience members is not a likelihood of disciplinary
investigation or enforcement under Rule 8.4(g).

        Article III of the Constitution limits the jurisdiction of
the federal courts to actual cases or controversies. U.S. Const.,
art. III, § 2, cl. 1. “One element of the case-or-controversy
requirement is that plaintiffs must establish that they have
standing to sue.” Clapper v. Amnesty Int’l USA, 

 (2013) (internal quotation marks omitted). Standing is a
“jurisdictional requirement” that “remains open to review at all
stages of the litigation.” Nat’l Org. for Women, Inc. v.
Scheidler, 

 (1994). At summary judgment, a
plaintiff “can no longer rest on . . . mere allegations, but must
set forth by affidavit or other evidence specific facts”
establishing standing. Clapper, 

 (quoting Lujan
v. Defenders of Wildlife, 

 (1992) (internal
quotation marks omitted)). To establish standing, a plaintiff
must show an injury in fact fairly traceable to the challenged
action that a favorable ruling may redress. Id. at 409.

       The injury-in-fact requirement ensures the plaintiff has
a “personal stake in the outcome of the controversy.” Warth v.
Seldin, 

 (1975). An injury in fact must be




                               19
“concrete and particularized,” not “conjectural or
hypothetical.” Lujan, 

 (internal quotation marks
omitted). A plaintiff may challenge the constitutionality of a
regulation before suffering an “actual” injury arising from
enforcement so long as the threatened injury is “imminent.” 

Such a plaintiff satisfies the injury-in-fact requirement where
he alleges he intends to do something arguably protected by the
Constitution, but arguably barred by the regulation, and that he
faces a credible threat of prosecution under the regulation.
Schrader v. Dist. Att’y of York Cnty., 

, 124–25 (3d
Cir. 2023) (citing Susan B. Anthony List v. Driehaus, 

, 158–59 (2014)).

       We determine Greenberg lacks standing to maintain this
pre-enforcement challenge of Rule 8.4(g). He fails to establish
an imminent future injury because his planned course of
conduct is not arguably proscribed by Rule 8.4(g) and he faces
no credible threat of prosecution for engaging in such conduct.
To the extent that he asserts standing based on an ongoing chill
to his speech, he cannot show that this chill is objectively
reasonable or fairly traceable to the challenged Rule.

                              A.

       Rule 8.4(g) does not arguably prohibit anything
Greenberg plans to do. The Rule covers only knowing or
intentional harassment or discrimination against a person.
Nothing in Greenberg’s planned speeches comes close to
meeting this standard.

      We must construe the Rule to determine what it
arguably proscribes. We start, as a Pennsylvania court would,
by examining its plain language in context. See Marcellus




                              20
Shale Coalition v. Dep’t of Envt’l Prot., 

, 937,
943 (Pa. 2023). Rule 8.4(g) provides it is professional
misconduct to “knowingly engage in conduct constituting
harassment or discrimination.” Pa. R. Pro. Conduct 8.4(g).
Thus, it is essential to understand the meanings of
“harassment” and “discrimination” as well as the Rule’s
knowledge requirement.

        Conduct constitutes harassment or discrimination only
when targeted at a person. The Rule’s commentary defines
“harassment” as “conduct that is intended to intimidate,
denigrate or show hostility or aversion toward a person.” Pa.
R. Pro. Conduct 8.4(g) cmt. 4. The ordinary meaning of
“harassment” similarly encompasses only conduct “directed at
a specific person” that “annoys, alarms, or causes substantial
emotional distress to that person and serves no legitimate
purpose.” Harassment, Black’s Law Dictionary (11th ed.
2019). The Rule’s commentary also limits “discrimination”—
ordinarily defined as “differential treatment,” Discrimination,
Black’s Law Dictionary (11th ed. 2019)—to conduct that
“treat[s] a person as inferior,” or “disregard[s] individual
characteristics.” Pa. R. Pro. Conduct 8.4(g) cmt. 5.

       Rule 8.4(g) is limited in another way—it prohibits only
harassment and discrimination that is knowing or intentional.
Under the Rule, it is professional misconduct to “knowingly
engage” in harassment or discrimination. Pa. R. Pro. Conduct
8.4(g). A lawyer violates this rule when he actually knows his
conduct is harassing or discriminatory, or when he is
practically certain that it will cause harassment or
discrimination. Pa. R. Pro. Conduct 1.0(f) (“‘Knowingly’ . . .
denotes actual knowledge of the fact in question.”); see 

(b)(2) (in criminal context, a person acts




                              21
“knowingly” when “he is aware that his conduct is of that
nature,” or when he is “practically certain that his conduct will
cause such a result”); Knowingly, Black’s Law Dictionary
(11th ed. 2019) (defining acting “knowingly” as acting
“deliberately” or “with the knowledge that the social harm that
the law was designed to prevent was practically certain to
result”). The commentary’s definition of “discrimination”
includes only “conduct that a lawyer knows manifests an
intention” to treat a person as inferior based on a protected
characteristic. Pa. R. Pro. Conduct 8.4(g) cmt. 5. And its
definition of “harassment” is further limited to intentional
conduct. See 

 cmt. 4 (defining “harassment” as “conduct that
is intended to intimidate, denigrate or show hostility or
aversion”).

       The Rule does not arguably bar Greenberg’s planned
speech. Greenberg intends to discuss legal doctrine at CLE
seminars where he will advocate “controversial legal
positions” and “verbalize epithets” discussed in judicial
opinions. Greenberg Br. 44. The presentations will “oppose[]
hate speech bans,” “advocat[e] for the right of people to
express intolerant religious views,” and “support[] Due
Process protections for students accused of sexual
misconduct.” JA160–61. This speech does not arguably violate
the Rule. None of Greenberg’s planned speech could be
interpreted as knowing harassment or discrimination directed
at a person. Greenberg plans to verbalize epithets found in
judicial opinions within an academic discussion, not direct
them at an audience member. Greenberg’s general advocacy of
potentially controversial positions does not denigrate any
person or treat any person as inferior based on a protected
characteristic. And the Rule reaches only lawyers who are
practically certain their speech will cause harassment or




                               22
discrimination, not those who inadvertently offend their
audience.

       This interpretation is buttressed by the interpretation of
the Disciplinary Board and Office of Disciplinary Counsel.
The Disciplinary Board recommended the use of the word
“knowingly” because it “prevents unintentional violation of the
[R]ule, and serves to exclude inadvertent or negligent
conduct.” 

 (Aug. 31, 2019). The Office of
Disciplinary Counsel interprets the Rule as “encompassing
only conduct which targets individuals by harassing or
discriminating against an identifiable person.” JA276 ¶ 7. It
does not “prohibit[] general discussion of case law or
‘controversial’ positions or ideas.” 

 The Chief Disciplinary
Counsel further reviewed Greenberg’s planned presentations,
speeches, and writings and stated they do not violate the Rule.5
This makes sense—Greenberg’s planned presentations do not
knowingly or intentionally harass or discriminate against a
person. Because the Rule does not arguably prohibit his
planned speech, Greenberg fails to establish an injury in fact.

                               B.

       Greenberg also fails to establish he faces a credible

5
 Greenberg argues Farrell’s interpretation of Rule 8.4(g) is not
binding on the Office of Disciplinary Counsel, and the
Disciplinary Board may later remove Farrell to change the
Office of Disciplinary Counsel’s interpretation of the Rule.
“But it is up to [Greenberg] to show some objective reason to
believe [Defendants] would change [their] position, and this
[he has] not done.” Abbott v. Pastides, 

 (4th
Cir. 2018).




                               23
threat of prosecution for his planned speech because there is
compelling contrary evidence that no threat exists. Defendants
disavow enforcement for any of Greenberg’s planned conduct.
Courts often determine there is a credible threat of prosecution
where the government refuses to make such a representation.
See, e.g., Driehaus, 573 U.S. at 165 (“[R]espondents have not
disavowed enforcement if petitioners make similar statements
in the future . . . .”); Holder v. Humanitarian L. Proj., 

, 16 (2010) (“The Government has not argued to this Court
that plaintiffs will not be prosecuted . . . .”); Babbitt v. United
Farm Workers Nat’l Union, 

 (1979) (“[T]he
State has not disavowed any intention of invoking the criminal
penalty provision . . . .”). On the other hand, a disavowal—like
the one here—weighs against a credible threat of prosecution.
See Nat’l Shooting Sports Found. v. Att’y Gen. of N.J., --- F.4th
----, No. 23-1214, 

, at *4 (3d Cir. Aug. 17,
2023) (no standing where the attorney general disavowed
prosecuting “participati[on] in ‘lawful commerce,’ which is all
the [plaintiff] has said it wants to do”); Abbott v. Pastides, 

 (4th Cir. 2018) (no standing where plaintiffs
received “written notice that neither investigation nor sanction
was forthcoming”); Wilson v. State Bar of Ga., 

,
1428–29 (11th Cir. 1998) (no standing where state bar had
“repeatedly and consistently taken the position” that rule did
not bar planned conduct).

       Because the relevant standing inquiry ultimately
focuses on the actual probability of an enforcement action, we
note that Greenberg offers only one instance of an attorney
facing formal discipline for purportedly discriminatory




                                24
speech.6 There, a South Carolina attorney was disciplined for
posting, the week after the death of George Floyd, that Floyd
was a “shitstain[].” In re Traywick, 

, 359 (S.C.
2021). The attorney also directed profane remarks to women
and “college educated, liberal suburbanites.” 

 But the speech
in Traywick is not remotely comparable to Greenberg’s
planned speech discussing First Amendment jurisprudence.
Also, the attorney was not disciplined under a rule analogous
to Rule 8.4(g), but for “conduct tending to bring the . . . legal
system into disrepute” and for violating his oath to “maintain
the dignity of the legal system.” 

 at 485 (citing S.C. App. Ct.
R. 402). When Traywick’s lone enforcement is viewed in light
of the many state bar enactments paralleling Pennsylvania’s
Rule 8.4(g), “a history of past enforcement” is conspicuously
lacking. Driehaus, 573 U.S. at 164; see Blum v. Holder, 

 (1st Cir. 2014) (“In assessing the risk of
prosecution as to particular facts, weight must be given to the
lack of a history of enforcement of the challenged statute to
like facts . . . .”); cf. Abbott, 

 (“The most
obvious way to demonstrate a credible threat of enforcement
in the future, of course, is an enforcement action in the past.”);
Schrader, 

. Although not dispositive on a pre-
enforcement challenge, see Speech First, Inc. v. Fenves, 

 (5th Cir. 2020), the lack of any relevant prior
enforcement combined with Defendants’ disavowal of
enforcement undercuts the threat of prosecution. Nat’l

6
  Greenberg also relies upon a judicial misconduct complaint
and investigation involving controversial speech. This judicial
misconduct proceeding—which turned on a question of proof
and was ultimately dismissed—does not give rise to a credible
threat of attorney discipline against him. See In re Charges of
Judicial Misconduct, 

 (D.C. Cir. 2014).




                               25
Shooting Sports Found., 

, at *4.

       Last, we observe that because the Office of Disciplinary
Counsel weeds out meritless complaints on its own, Greenberg
faces only a speculative risk of discipline. Based on only a
single instance of an audience member considering his speech
offensive at one of his CLE presentations, Greenberg
speculates that his CLE attendees will inevitably file a
disciplinary complaint against him, which might lead
Defendants to “misconstrue” his conduct as violating the
Rule—despite their assurance it does not—and pursue
discipline against him. Greenberg Br. 44.

       This “highly attenuated chain of possibilities” cannot
support standing. Clapper, 

. The relevant
analysis focuses on those responsible for enforcement, not
those who make groundless complaints. Greenberg’s audience
members may find his speech offensive and may file
disciplinary complaints. But there is little chance such
complaints will result in an enforcement action.
Pennsylvania’s attorney-discipline process does not proceed
directly from complaint to enforcement. Cf. Driehaus, 573
U.S. at 164 (recognizing standing where complaints
automatically triggered an expedited hearing, and the
commission had no system for weeding out frivolous
complaints). The Office of Disciplinary Counsel routinely
dismisses complaints without a response from the attorney and
has multiple layers of review before pursuing discipline. As
discussed, Greenberg cannot show any persuasive history of
past enforcement in Pennsylvania or any other jurisdiction, and
Defendants interpret Greenberg’s planned conduct as not
barred by the Rule. Thus, it is speculative that a disciplinary
complaint arising from his planned conduct would progress to




                              26
the point of a formal response from him, much less disciplinary
enforcement.

       Greenberg relies on the Fifth Circuit’s decision in
Speech First, Inc. v. Fenves, 

, which found pre-
enforcement standing where officials only disavowed “any
future intention to enforce the policies contrary to the First
Amendment” but impliedly planned to enforce them to the
constitutional limit. Unlike Fenves, where the bounds of
regulated speech were unclear, Defendants have informed
Greenberg his planned speech is not barred. The Chief
Disciplinary Counsel confirms Greenberg’s planned speech
does not violate the Rule and disavows any enforcement for his
planned speech. Given this compelling contrary evidence,
Greenberg cannot establish a credible threat of prosecution.

                               C.

        Finally, Greenberg asserts he suffers an ongoing, actual
injury in fact because the specter of disciplinary proceedings
causes him to alter his presentations. Chilled speech or self-
censorship is “a harm that can be realized even without an
actual prosecution.” Virginia v. Am. Booksellers Ass’n, Inc.,

 (1988). But a plaintiff “cannot manufacture
standing merely by inflicting harm on [himself] based on [his]
fears of hypothetical future harm that is not certainly
impending.” Clapper, 

. A plaintiff cannot
establish an injury merely through allegations of a “subjective
chill.” 

 at 418 (quoting Laird v. Tatum, 

, 13–14
(1972) (internal quotation marks omitted)). Rather, a plaintiff’s
self-censorship confers standing only where it is objectively
reasonable and fairly traceable to the challenged regulation.
See id.; Wilson, 132 F.3d at 1428–29.




                               27
        Greenberg’s speech is not reasonably chilled by Rule
8.4(g) because he faces no credible risk that the Rule will be
enforced against him. Without a credible threat of
enforcement, “a putative plaintiff can establish neither a
realistic threat of legal sanction if he engages in the speech in
question, nor an objectively good reason for refraining from
speaking and ‘self-censoring’ instead.” Abbott, 

. This analysis is similar to that in Wilson, where the state
bar interpreted the challenged rule as having “no application to
the types of scenarios the [plaintiffs] have posed” and informed
individuals, upon their request, “about whether it will sanction
them for engaging in certain practices.” 132 F.3d at 1428–29.
Just as in Wilson, Greenberg fails to establish an injury in fact
because he has an assurance he will not face discipline under
Rule 8.4(g).

        Even without enforcement, Greenberg argues the
possibility of a disciplinary investigation is enough to chill his
speech. We may assume, without deciding, that “there are
some forms of ‘pre-enforcement’ investigation that are so
onerous that they become the functional equivalent of
‘enforcement’ for standing purposes.” Abbott, 

;
see also Driehaus, 573 U.S. at 165–66 (“[A]dministrative
action, like arrest or prosecution, may give rise to harm
sufficient to justify pre-enforcement review.”). For example,
the Fourth Circuit reasoned that an administrative inquiry
could reasonably chill speech if the “process itself imposes
some significant burden, independent of any ultimate
sanction.” Abbott, 

 (citing Driehaus, 573 U.S.
at 165–66). But just as in Abbott, the record shows that any
burden from a speculative disciplinary investigation is
insufficient to chill Greenberg’s speech. As discussed, the




                               28
Office of Disciplinary Counsel would determine any
disciplinary complaint arising from Greenberg’s planned
speech to be frivolous, allowing the complaint to be dismissed
without even a response from him. Thus, any subjective chill
arising from a fear of lengthy or burdensome disciplinary
proceedings is not objectively reasonable. See 

 (“[B]ecause
the plaintiffs can point to no reason to think they will be
subjected to some different and more onerous process not yet
experienced or threatened, their claim to injury . . . is purely
speculative and thus insufficient to establish standing.”). And
because investigations into attorney discipline are confidential
until the Board pursues discipline, there is little risk of adverse
publicity associated with a disciplinary investigation.

        Greenberg alleges his speech will be chilled. But his
allegation is largely informed by his perception of the social
climate, not Rule 8.4(g). Even if Greenberg feels
uncomfortable speaking freely and fears professional liability,
such chill must be fairly traceable to Rule 8.4(g). He cites
studies on public attitudes toward protections for offensive
speech; law professors facing informal complaints and, at
times, academic sanctions based on their speech; and “dozens”
of nonattorneys who “lost their jobs or suffered other negative
repercussions for words or conduct perceived to manifest racial
bias or prejudice.” JA221 ¶ 64. But those situations do not give
rise to a reasonable fear of attorney discipline against him.
Those individuals suffered consequences outside the attorney
discipline process. Greenberg may choose to alter his CLE
presentations in concern for his “professional reputation,
available job opportunities, and speaking opportunities,”
JA216 ¶ 36, but such censorship cannot be fairly traced to
discipline under Rule 8.4(g). Considering Greenberg faces no
imminent injury from disciplinary proceedings under Rule




                                29
8.4(g), his self-censorship based on Rule 8.4(g) is not
objectively reasonable. Any reasonable chill he suffers cannot
be fairly traced to Rule 8.4(g). Thus, he lacks standing to
maintain this suit.

        We note that our determination that Greenberg has not
shown a credible threat that Rule 8.4(g) will be enforced
against him necessarily depends on our assessment of the
present situation. The Rule was enacted only recently, and
Defendants have not begun enforcing it, so there has been no
opportunity to observe its effects. If facts develop that validate
Greenberg’s fears of enforcement, then he may bring a new suit
to vindicate his constitutional rights. Our decision, as always,
is limited to the record before us, and we express no opinion
on the merits of his suit.

                               IV.

       For these reasons, we will reverse the District Court’s
summary judgment orders. The District Court shall dismiss the
case for lack of standing.




                               30
                Greenberg v. Lehocky, et al.

                          No. 22-1733



AMBRO, J., concurring

       The majority opinion I join in full. I write separately
only to note that someday an attorney with standing will
challenge Pennsylvania Rule of Professional Responsibility
8.4(g). When that day comes, the existing Rule and its
commentary may be marching uphill needlessly. We cannot
advise on whether it will pass constitutional muster. But if the
Bar’s actions during the pendency of this litigation are any
indication, it has a card to play. It can amend the Rule
preemptively to eliminate many of the constitutional
infirmities alleged by Greenberg in this case. In doing so, it
might look to Maine, New Hampshire, New York, and
Connecticut for guidance. See Me. R.P.C. 8.4(g) (2019); N.H.
R.P.C. 8.4(g) (2019); N.Y. R.P.C. 8.4(g) (2022); Conn. R.P.C.
8.4(7) (2022).

        Those states’ analogous enactments implement a
comparatively robust safeguarding of attorneys’ First
Amendment rights. They direct regulatory reach away from
the constitutionally protected speech Greenberg and his amici
wish to espouse and narrowly steer it toward the overt and
insidious evils that the Pennsylvania Bar and its amici wish to
eradicate. Doubtless Pennsylvania is striving to do the same.
But if it thinks it can do better, it need not start from scratch.




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