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 
2

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
3

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
4

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 
5

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 Commission 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 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
6

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

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 
7

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

 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
8

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 

alleges the Rule violates the First Amendment and is 

unconstitutionally vague. The District Court agreed with him
9

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). 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 Pennsylvanialicensed 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 
10

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. 

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 

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 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 

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 

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 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 

rules from jurisdiction to jurisdiction.” 46 Pa. Bull. 7519 (Dec. 

3, 2016). Thus, Pennsylvania considered its own amendment

conforming to Model Rule 8.4(g) in 2016. Id. 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. 49 Pa. Bull. 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 profession functions for 

all participants, and affirms that no lawyer is immune from the 

reach of law and ethics.” Id.

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, 
13

harassment or discrimination based upon” eleven protected 

grounds.3 50 Pa. Bull. 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 association activities where legal education credits are 

offered.” Id. Comment 4 explained that prohibited conduct 

would be defined by substantive antidiscrimination and 

antiharassment statutes and case law. Id.

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 

3 The protected grounds are “race, sex, gender identity or 

expression, religion, national origin, ethnicity, disability, age, 

sexual orientation, marital status, [and] socioeconomic status.” 

50 Pa. Bull. 3011 (June 20, 2020).
14

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 

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, 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 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.” Id. 
15

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 

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 
16

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 

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.” Id. ¶¶ 103–04. He expressed ongoing concern that 
17

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 

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, 
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 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. Id. at 206–20, 222–25 Thus, it permanently enjoined 

enforcement of Rule 8.4(g) in its entirety. Defendants timely 

appealed.

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. Sikkelee 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 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, 549 U.S. 457, 473–74
19

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, 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. 249, 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 ensures 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 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., 74 F.4th 120, 124–25 (3d 

Cir. 2023) (citing Susan B. Anthony List v. Driehaus, 573 U.S. 

149, 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.
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 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 

Shale Coalition v. Dep’t of Envt’l Prot., 292 A.3d 921, 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. 
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.”); see 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 “harassment” is further limited to intentional 

conduct. See id. 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 
23

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 

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.” 49 Pa. Bull. 4941 (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.” 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

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 

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., 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 threat 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 enforcement 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 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.” Id. 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, 744 

F.3d 790, 798 (1st Cir. 2014) (“In assessing the risk of 

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, 769 F.3d 762, 775 (D.C. Cir. 2014).
26

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, 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.”); 

Schrader, 74 F.4th at 125. Although not dispositive on a preenforcement challenge, see Speech First, Inc. v. Fenves, 979 

F.3d 319, 336 (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 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 
27

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 

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, 979 F.3d at 337, which found preenforcement 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 selfcensorship 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 plaintiff 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 objectively 

reasonable and fairly traceable to the challenged regulation. 

See id.; 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.” Abbott, 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 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, 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.”). 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, 900 F.3d at 179 (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 

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 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 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 
30

repercussionsfor 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 

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. 
1

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.