The United States Supreme Court’s decision eight weeks ago in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) (“NIFLA”) makes clear that ABA Model Rule 8.4(g) is a content-based speech restriction that violates the First Amendment. The NIFLA decision follows on the heels of the Supreme Court’s decision in Matal v. Tam, 137 S. Ct. 1744 (2017), which reinforces the fact that ABA Model Rule 8.4(g) is a viewpoint-based speech restriction that violates the First Amendment. Independently and together, these decisions counter any argument that ABA Model Rule 8.4(g) survives constitutional scrutiny.
NIFLA and Professional Speech: In NIFLA, the Supreme Court held that government restrictions on professionals’ speech -- including lawyers’ professional speech -- are generally subject to strict scrutiny because they are content-based speech restrictions and, therefore, presumptively unconstitutional. That is, a government regulation that targets speech must survive strict scrutiny – a close examination of whether the regulation is narrowly tailored to achieve a compelling government interest.
Under the Supreme Court’s analysis in NIFLA, ABA Model Rule 8.4(g) is a content-based speech restriction that violates the First Amendment. The Court explained that “[c]ontent-based regulations ‘target speech based on its communicative content.’” NIFLA, 138 S. Ct. at 2371, quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). “[S]uch laws ‘are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.’” Ibid. As the Court observed, “[t]his stringent standard reflects the fundamental principle that governments have ‘“no power to restrict expression because of its message, its ideas, its subject matter, or its content.”’” Ibid., quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
Most importantly to any consideration of Model Rule 8.4(g), the Court firmly rejected the idea that professional speech is less protected by the First Amendment than other speech. Three federal courts of appeals had ruled relatively recently that “‘professional speech’ [w]as a separate category of speech that is subject to different rules” and, therefore, less protected by the First Amendment. NIFLA, 138 S. Ct. at 2371.
But in abrogating those decisions, the Court stressed that “this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” Id. at 2371-72 (emphasis added). The Court resolutely rejected the idea that “professional speech” was an exception “from the rule that content-based regulations of speech are subject to strict scrutiny.” Id. at 2371.
The Court observed that there were “two circumstances” in which it “afforded less protection for professional speech” but “neither [circumstance] turned on the fact that professionals were speaking.” Id. at 2372. One circumstance in which it “applied more deferential review” involved “laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’” Id. As the Court explained, professional speech is not commercial speech, except in the “advertising” context, in which the disclosure of “factual, noncontroversial information” may be required by the government. Id. Obviously, Model Rule 8.4(g) is not primarily concerned with advertising. The second circumstance arises when States “regulate professional conduct, even though that conduct incidentally involves speech.” Id. at 2372 (emphasis added). But again, ABA Model Rule 8.4(g) targets speech – “verbal conduct” -- and is not aimed solely at conduct that incidentally involves speech. As the Court concluded in NIFLA, “neither line of precedents is implicated here.” Id.
Instead, the Court was clear that a State’s regulation of attorney speech would be subject to strict scrutiny to ensure that any regulation is narrowly tailored to achieve a compelling interest. The Court reaffirmed that its “precedents have long protected the First Amendment rights of professionals” and “has applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers.” Id. at 2374. Indeed, in a landmark case, the Court ruled that “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights,” explaining:
If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.
Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 438-39 (1963). Because it would censor or chill huge swaths of protected speech, ABA Model Rule 8.4(g) fails strict scrutiny.
Matal and Disparaging Speech: The NIFLA decision is the second major decision handed down by the Supreme Court after the ABA adopted Model Rule 8.4(g) that makes clear that the proposed rule violates the First Amendment. In Matal v. Tam, 137 S. Ct. 1744 (2017), a unanimous Court held that a federal statute was facially unconstitutional because it allowed government officials to penalize “disparaging” speech. The Court made clear that a government prohibition on disparaging, derogatory, demeaning, or offensive speech is blatant viewpoint discrimination and, therefore, unconstitutional. Id. at 1753-1754, 1765; see also, id. at 1766 (unconstitutional to suppress speech that “demeans or offends”) (Kennedy, J., concurring, joined by JJ. Ginsburg, Sotomayor, and Kagan).
All of the Justices agreed in Matal that a provision of a longstanding federal law allowing government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons was unconstitutional because “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Id. at 1751 (quotation marks and ellipses omitted). Justice Alito, writing for a plurality of the Court, noted that “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Id. at 1764 (plurality op.), quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes,J., dissenting).
In his concurrence, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, Justice Kennedy explained that the federal statute was unconstitutional viewpoint discrimination because the government permitted “a positive or benign mark but not a derogatory one,” which “reflects the Government’s disapproval of a subset of messages it finds offensive,” which is “the essence of viewpoint discrimination.” Id. at 1766 (Kennedy, J., concurring). And it was viewpoint discriminatory even if it “applies in equal measure to any trademark that demeans or offends.” Id.
Justice Kennedy stressed that “[t]he danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate,” particularly “if the ideas or perspectives are ones a particular audience might think offensive.” Id. at 1767. Justice Kennedy closed with a sober warning:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Id. at 1769 (Kennedy, J., concurring).
ABA Model Rule 8.4(g) violated lawyers’ free speech rights when it was adopted by the ABA House of Delegates two years ago. The Supreme Court’s subsequent decisions in NIFLA and Matal reinforce the depth of its unconstitutionality.