The Liberty Justice Center Calls on U.S. Supreme Court to Hear Greenberg v. Lehocky to Stop Government Gamesmanship in Constitutional Cases

March 5, 2024

On March 4, the Liberty Justice Center filed a brief urging the U.S. Supreme Court to hear Greenberg v. Lehocky to protect individuals’ ability to challenge unconstitutional policies and actions in litigation.

The case began when Pennsylvania attorney Zachary Greenberg filed a First Amendment challenge to a new rule that threatened to punish Pennsylvania lawyers—up to and including disbarring them—for using “harmful” or “demeaning” language. In December 2020, a federal court blocked that rule, finding that it posed a “constant threat” to lawyers’ free speech.

Following the court’s order, the state changed the phrasing of the rule. But despite the state’s slight revisions, Greenberg argues that the rule, Pennsylvania Rule of Professional Conduct 8.4(g), continues to violate lawyers’ First Amendment rights because its “novel, expansive, and vague definitions” chill their free speech.

In August 2023, the Third Circuit Court dismissed Greenberg’s challenge—because the Office of Disciplinary Counsel said it wouldn’t punish him and the state changed the rule’s phrasing. The Court also required that Greenberg prove his standing to bring the challenge anew because he had amended his complaint to include the most up-to-date information.

In an amicus brief, the Liberty Justice Center urges the Supreme Court to grant certiorari in the case, arguing that the Third Circuit’s dismissal encourages the government to engage in legal gamesmanship when its laws or rules are challenged. Under decades of Supreme Court precedent, the government—not the injured party—must prove a case is moot, and that the government has actually eliminated the plaintiff’s injury, before dismissing a case.

“Government officials cannot game their way out of First Amendment scrutiny,” said Reilly Stephens, Counsel at the Liberty Justice Center. “Greenberg has shown that Pennsylvania’s half-hearted revision of its professional censorship rule provides no comfort to attorneys, who still face the threat of severe professional consequences for saying things someone else doesn’t like. The Supreme Court should hear this case to make clear that plaintiffs who amend their claims in response to changes in a law or rule they challenge can still have their day in court.”

The Liberty Justice Center’s amicus brief in Greenberg v. Lehocky is available here.


For more information or to schedule an interview, please contact us.