WASHINGTON, DC (March 1, 2024): Today Southeastern Legal Foundation (SLF), Manhattan Institute, Mountain States Legal Foundation, and the Bader Family Foundation filed an amicus brief with the United States Supreme Court urging it to hear a lawyer’s case against one of Pennsylvania’s legal ethics rules which bans lawyers from engaging in “harassment.”
The rule at issue broadly bans harassing speech that “denigrates” or “shows hostility or aversion toward a person.” This falls far short of any workable legal standard, as SLF and amici explain in their brief.
At a minimum, speech in the workplace can only be considered harassment if it is “severe or pervasive,” not if it merely offends another person. Under Pennsylvania’s standard, free speech violations will abound. Words like “denigrate” and “aversion” are too vague and broad, and they will force lawyers to guess what sort of impact their words will have. This violates the vagueness and overbreadth doctrines of the First Amendment. The rule will also unconstitutionally chill lawyer speech because lawyers will be forced into silence rather than risk facing sanctions—including the loss of their license—for saying something offensive.
Director of Legal Initiatives for SLF Cece O’Leary states, “It is well settled that the First Amendment protects offensive speech. Any restrictions on offensive speech would be far too subjective to implement. Yet with this rule, not only is Pennsylvania restricting offensive speech, it is also undermining the role of attorneys as advocates in the courts of law and public opinion. Attorneys should and often do engage in legal debate in all sorts of forums, and they should be free to do so without fear of reprimand. This rule will have devastating consequences on legal advocacy.”