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
offici al 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 a s 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 his2 official capacity as Member of t he 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 Bo ard 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 Discipl inary Counsel; RAYMOND S. WIERCISZEWSKI, in his official capacity as Deputy Chief Disciplinary Counsel of

the Office of Disciplinary Counsel, Appellants

_______________________

On Appeal from t he 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. Saharia3 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. Matz4 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 C

hing

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

Associa tion, 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 Lawyers5 Thomas G. Wilkinson, Jr.
Cozen O’Connor
1650 Market Street One Liberty Place, Suite 2800 Philadelphia, PA 19103 Counsel for Amicus Appellants Pennsylvania Bar Association, Philadelphia Bar Association, Allegheny Bar Association, and Interbranch Commi ssion for Racial Gender
and Ethnic Fairness

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

Ilya Shapir o Manhattan Institute
52 Vanderbilt Avenue

New Yor k, 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 America6 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 Defendin g Freedom
440 First Street NW
Suite 600 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 Fr ont 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 Society7 Re illy 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 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 Fou ndation

Johanna E. Markind

#280 18 Maple Avenue Barrington, RI 02806 Counsel for Amicus Appellee Legal Insurrection
Foundation8 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
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 alleg es the Rule violates the First Amendment and is unconstitutionally vague . The District Court agreed with him9 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.

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). T o carry out this responsibility, t he Pennsylvania Supreme Court enact s the Pennsylvania Rule s 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, t he Office of Disciplinary Counsel i nvestigates such complaints . If the
Office of Disciplinary Counsel determines a complaint is
frivolous or that policy or prosecutorial discretion warrant s 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 a ttorney discipline may be appropriate , the recommendation is reviewed by the Chief Disciplinary
Counsel

. The Chief Disciplinary Counsel directs the Office of10 Disciplinary Counsel ’s interpretation o f the Rules of
Professional Conduct and must grant express approval for any disciplin ary 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. 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 s tates to form their own rules of
conduct.

Model Rule 8.4 specifie s , 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 wa s 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 t he scope of that

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).11 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 e liminat ing bias in the legal profession

, the ABA began consider ing 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 add ed specific antiharassment and
anti discrimination provisions within the black letter of the
rule

— not the comment ary

. Model Rule 8.4(g) also expanded the scope of the 1998 comment from conduct “in the course of representing a client” to “conduct r elated 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 d iscrimination beyond the scope of representing a client

— such as “bar association functions” or
“law firm socia l 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 characteristics 2 “ related to the practic e of law. ”
Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass’n 2016).

Consistent with the ABA’s goal of e liminat ing bias in the legal profession , m any states have adopted their own provisions prohibiting some form of attorney bias, prejudice

, harassment

, or discrimination. Forty

- four jurisdictio ns’ rules of professional conduct, either directly or through

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).12 commentary

, regulate verbal manifestations of bias, prejudice, harassment, or discrimination. Thirteen jurisdictions (other
than Pennsylvania ) regulate verbal bias, prejudice, harassment,
or dis crimination 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 rules from jurisdiction to jurisdiction.” 46 Pa. B ull . 7519 (Dec. 3, 2016). Thus

, Pennsylvania consider ed its own amendment conforming to Model Rule 8.4(g) in 2016

. Id. That fall, the Pennsylvania Bar Association House of Delegates ap proved 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 propos ed amendment to Pennsylvania Rule of
Professional Conduct 8.4. 49 Pa. B ull . 4941 (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 p rofession functions for all participants, and affirms that no lawyer is immune from the
reach of law and ethics.” Id.

T he 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,13 harassment or discrimination based upon” eleven protected grounds. 3 50 Pa. B ull . 3011 (June 20, 2020). The Pennsylvania Supreme Court also added two comments to the Rule. Comment 3 clarified that “the practice of law” includes “continuing legal education seminars, bench bar conferences

and bar associa tion activities where legal education credits are
offered.” Id. Comment 4 explained that prohibited conduct
would b e defined by substantive antidiscrimination and
antiharassment statutes and case law. Id.

Before the amendment was scheduled to take effect,
Plaintiff Zachar y Greenberg sued members of the Disciplinary
Board of the Pennsylvania Supreme Court as well as th e 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 th rough campaign
contributions. Greenberg believes some audience members
will fin d his presentations

— which include quotations of racial epithets from judicial opinions and are inclined towards arguably controversial positions

— to be “b iased, prejudice d

, offen sive, 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

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

50 Pa. B ull . 3011 (June 20, 2020).14 disciplinary complaint against him. He plan s to continue speaking at CLE events on these topics, but allege s “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 lecture s

. Id. ¶ ¶ 60 , 65. He claimed Pennsylvania ’s

R ule 8.4(g) , as adopted in 2020, violate d the First Amendment
and wa s unconstitutionally vague.

Greenberg sought a declaratory judgment that the Rule 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 lac ked 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 : H is 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 [hi s ] being subjected to a disciplinary complaint or investigation

. ” Greenberg v. Haggerty , 491

F. Supp. 3d 12, 24 (E.D. Pa. 2020)

. Thus

, the District Court
determined Greenberg’s allegation that his speech was chilled was objectively reasonable

. Ultimately, the trial c ourt found it persuasive that Defendants offered no guarantee they would not “discipline his offensive speech even though th ey have given themselves the authority to do so. ” Id.15 Defendants first sought interlocutory review but later voluntarily dismissed their appeal and instead amend ed Rule 8.4(g). T hat amendment produced the current form of Rule 8.4(g ) and commentary

, the r elevant 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 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 [

, ]
conferen ces, 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

p ublications given or published outside the contexts described in ( 1 )

– ( 3 ).

Comment [4]: “Harassment” means conduct that is intended to intimidate, denigrate or show16 hostility or aversion toward a person on any of
the bases listed in paragraph (g)

. “Harass ment”
includes s exual 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 intent ion: to 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. P ro

. C onduct 8.4(g) & cmts. 3

– 5)

.

Defendants agreed not to enforce the Rule until the trial
court decided Greenbe rg’s challenge. Greenberg then file d 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 hi s 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.” Id. ¶¶ 103

– 04. He expressed ongoing concern that17 a “disciplinary investigation wo uld 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 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.”

J A276 ¶ 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

c omplaint 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 t o the Rule and Farrell’s declaration

— which arose after the commencement of litigation

— concerned mootness rather than standing

.

The District C ourt 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 i ts prior ruling on standing.” Greenberg v. Goodrich

,18 593 F. Supp. 3d 174, 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 lit igation

. 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. Id. at 206

– 20, 222

– 25 Thus, it permanently enjoined enforcement of Rule 8.4(g) in its entirety. Defendants timely appeal ed

.

II.

The District Court had original jurisdiction under 28 U.S.C. § § 1331 and 1343(a). We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s summary judgment decisions de novo. Sikkel e e v. Precision Airmotive Corp. , 907 F.3d 701, 708 (3d Cir. 2018). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitle d to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

I II

.

To have standing to sue, Greenberg must establish he suffers an actual or imminent injury that is fairly trace able 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 becau se Greenberg replaced his initial complaint
with a subsequent pleading challenging the new R ule

. See Rockwell Int’l Corp. v. United States , 549 U.S. 457, 473

– 7419 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 Min d 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).

Art icle III of the Constitution limits t he j urisdiction of
the federal courts to actual cases or controversies. U.S. Const.,

a rt. 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 , 568 U.S. 398, 408 (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 , 510 U.S. 24 9, 255 (1994). At summary judgment, a

(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. , 20 F.4th 1184, 1190 (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 , 90 F.3d 479, 483 (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”)

.20 plaintiff “can no longer rest on .

. . mere allegations, but must set forth by affidavit or other evidence specific facts” establishing standing. Clapper , 568 U.S. at 412 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (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 ensur es the plaintiff has a “personal stake in the outcome of the controversy.” Warth v.
Seldin , 422 U.S. 490, 498 (1975)

. An injury in fact must be “concrete and particularized

, ” not “conjectural or hypothetical.” Lujan , 504 U.S. at 560 (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

. ” Id. Such a plaintiff satisfies the injury

- in

- fact require ment 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.

, 74 F.4th 120

, 12 4

– 25 (3d Cir. 2023) (citing Susan B. Anthony List v. Driehaus , 573 U.S. 149, 15 8

– 5 9 (2014)).

We determine Greenberg lacks standing to maintain this

pre

- enforcement challenge of Rule 8.4(g)

. He fails to establish

a n 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 spe ech, he cannot show that this chill is objectively
reasonable or fairly traceable to the challenged Rule.21 A.

Rule 8.4(g) does not arguably prohibit anything Greenberg plans to do. The Rule covers only knowing or
intentional harassment or discrimination a gainst 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 Shale Coalition v. Dep’t of Envt’l Prot.

, 292 A.3d 921

, 937,
943 (Pa. 202 3 ). Rule 8.4 (g) provides it is professional misconduct to “knowingly engage in con duct constituting
harassment or discrimination.” Pa. R. Pro. C onduct 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 h arassment or discriminatio n 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). T he Rule’s c ommentary 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

.22 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.”); s ee 18 Pa.
Cons. Stat. § 302(b)(2) (in criminal context, a person acts “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 “ h arassment” is further limited to intentional
conduct. See i d. 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 plan ned

s peech

. Greenberg intends t o 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 peop le to express intolerant religious views,” and “support[] Due23 Process protections for students accused of sexual
misconduct.” JA160

– 61. Th is speech does not arguably violate
the R ule. None of Greenberg’s planned speech could be interpreted as knowing haras sment 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 do es no t denigrate any

person or treat any person as inferior based on a protected
characteristic. And t he Rule reaches only lawyers who are practical ly certain their speech will cause harassment or 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 o f the word “knowingly ” because it “prevents unintentional violation of the [R]ule, and serves to exclude inadvertent or negligent conduct.” 49 Pa. Bull. 4941 (Aug. 31, 2019). The Office of Disciplinary Counsel interprets the Rule as “encompassing only cond uct 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.” Id. The Chief Disciplinary
Counsel further reviewed Greenberg ’s planned presentations, speeches, and writings and stated they do not violate the Rule. 5

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.24 T his makes sense

— Greenberg ’s planned presentations do not knowingly or intentionally harass or discriminate against a

person

. B ecause the Rule doe s not arguably prohibit his planned speech, Greenberg fails to establish an injury in fact.

B.

Greenberg also fails to establish he faces a credible 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.

C ourts 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. , 561 U.S. 1, 16 (2010) (“The Government has not argued to this Court that plaintiffs will not be prosecuted

. . . .”); Babbitt v. United
Farm Workers Nat’l Union , 442 U.S. 289, 302 (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 threa t of prosecution.

See Nat’l Shooting Sports Found

. v. Att ’ y Gen. of N.J.

, --- F.4th

---- , No. 23

- 1214, 2023 WL 5286171, 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 , 900 F.3d 160, 177 (4th Cir. 2018) (no standing where plaintiffs

“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 , 900 F.3d 160, 177 (4th Cir. 2018).25 received “written notice that neither investigation nor sanction was forthcoming”) ; Wilson v. State Bar of Ga. , 132 F.3d 1422,

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 e nforcement action

, we

note that Greenberg offers only one instance of an attorney facing formal discipline for purportedly discriminatory 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 , 860 S.E.2d 358, 359 (S.C. 2021). The attorney also directed profane remarks to women
and “ college educated , liberal suburbanites.” Id. But t he 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 disreput e” and for violating his oath to “maintain the dignity of the legal system.” Id. at 485 (citing S.C. App. Ct. R. 402). W hen 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 , 744 F.3d 790, 798 (1st Cir. 2014) (“In assessing the risk of

6 Greenberg also relies upon a judicial misconduct complaint and investigation involv ing 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 , 769 F.3d 76 2, 775 (D.C. Cir. 2014).26 prosecution as to particular facts, weight must be given to th e lack of a history of enforcement of the challenged statute to
like facts

. . . .”) ; cf. Abbott , 900 F.3d at 176 (“The most obvious way to demonstrate a credible threat of enforcement in the future, of course, is an enforcement action in the past.”) ; Schr ader

, 74 F.4th at 125

. Although not dispositive on a pre

enforcement challenge, see Speech First, Inc. v. Fenves , 979 F.3d 319, 33 6 (5th Cir. 2020)

, the lack of any relevant prior
enforcement combined with Defendants’ disavowal of

enforcement undercuts the threat of prosecution. Nat’l Shooting Sports Found

. , 2023 WL 5286171 , 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 , 568 U.S. at 401. The relevant analysis focuses on those responsible for enforcement, not those who make groundless complaints. Greenberg ’s audience members may find his speech off ensive and may file disciplinary complaint s. 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 complaints27 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 attor ney 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 the point of a formal response from him , much less disciplin ary enforcement

.

Greenberg relies on the Fifth Circuit’s decision in Speech First, Inc. v. Fenves , 979 F.3d at 33 7 , 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 li mit. 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 enforc ement 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 s elf

censorship is “a harm that can be realized even without an actual prosecution.” Virginia v. Am. Booksellers Ass’n, Inc.

,28 484 U.S. 383, 393 (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 , 568 U.S. at 416. A plaint iff cannot
establish an injury merely through allegations of a “subjective
chill.” Id. at 418 (quoting Laird v. Tatum , 408 U.S. 1, 13

– 14 (1972) (internal quotation marks omitted) ). Rather, a plaintiff’s

self

- censorship confers standing only where it is obj ectively
reasonable and fairly traceable to the challenged regulation

. See i d. ; Wilson , 132 F.3d at 1428

– 29.

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. ” A bbott , 900 F.3d at

176. 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 wh ether 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 o f ‘enforcement’ for standing purposes.” Abbott , 900 F.3d at 178 ;29 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.”)

. F or example,
the Fourth Cir cuit reasoned that an administrative inquiry could reasonably chill speech if the “process itself imposes some significant burden, independent of any ultimate
sanction.” Abbott

, 900 F.3d at 17 9 (citing Driehaus , 573 U.S.
at 165

– 66). B ut j ust as in Abbott

, the record shows that any
burden from a speculative disciplinary investigation is
insufficient to chill Greenberg ’s speech

. A s discussed, t he
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, a ny subjective chill arising from a fear of lengthy or b urdensome disciplinary proceedings is not objectively reasonable. See id. (“[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 in vestigation.

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 negative30 repercussions for words or conduct perceived to manifest racial bias or prejudice

. ” JA221 ¶ 64

. But those situation s do not give
rise t o 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 opportun ities, and speaking opportunities

, ”

JA 216 ¶ 36 , but such censorship can not be fairly traced to discipline under Rule 8.4(g). Considering Greenberg faces no imminent injury from disciplinary proceedings under Rule 8.4(g), his self

- censorship based on Rule 8.4(g) is not objectively reasonable. Any reasonable chill he suffers cannot
be fairly trace d 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 enforc ing it , s o 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 w e 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.1 AMBR O, J.

, concurring

T he majority opinion I join in full . I write separately only to note that s omeday an attorney with standing will challenge Pennsylvania Rule of Professional Responsibility 8.4( g ). W hen that day comes, the existing Rule and its
commentary may be marching uphill needlessly

. W e cannot advise on whether it will pass constitutional muster

. But if the
Bar’s actions during the pen dency 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, an d
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 safeguar ding of attorneys’ First
Amendment rights . T he y direct regulatory reach away from the constitutionally protected speech Greenberg and his amici wish to espouse and narrowly steer it t oward 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.