Mario Cerame and Timothy Moynahan, licensed attorneys in Connecticut, sued state bar officials challenging Connecticut Rule of Professional Conduct 8.4(7). This rule, adopted in 2021, makes it professional misconduct for a lawyer to engage in harassment or discrimination based on fifteen protected categories in conduct related to the practice of law. The plaintiffs, who regularly speak out on controversial issues including critical race theory and religious freedom, argued the rule is unconstitutionally vague and restricts their speech. They filed suit under 42 U.S.C. § 1983, claiming the rule chills their First Amendment rights. The district court dismissed the case, ruling that the plaintiffs lacked standing because they did not show a real and imminent fear of enforcement, noting the rule was new and contained a First Amendment carve-out. The Second Circuit disagreed, finding the dismissal premature.
Chief Judge Debra Ann Livingston, writing for the panel, applied the Supreme Court's test from Susan B. Anthony List v. Driehaus to determine standing for pre-enforcement First Amendment challenges. The court held that plaintiffs must show an intention to engage in conduct arguably affected by a constitutional interest, that the conduct is arguably proscribed by the regulation, and that there is a credible threat of prosecution. The court rejected the district court's rigid two-part injury framework and its error in assessing whether the speech was actually proscribed rather than arguably proscribed. The court reasoned that at the motion to dismiss stage, general factual allegations are sufficient to support the claim. The plaintiffs' complaint alleged they regularly speak in forceful terms on controversial topics and fear sanctions for speech that might be construed as derogatory. The court found this sufficient to show an intention to engage in arguably proscribed conduct. Regarding the credible threat of enforcement, the court noted the rule is recent, the government presumes intent to enforce laws, and the lack of prior enforcement history is unpersuasive for a new rule. The court also rejected the argument that the First Amendment carve-out negated the threat, stating that a blanket carve-out does not eliminate the risk of being forced to defend the constitutionality of one's speech or face disciplinary proceedings. The court emphasized that the grievance process itself imposes burdens, such as public record status and resource diversion, which constitute concrete injury.
The decision allows the constitutional challenge to proceed to the merits. The Second Circuit vacated the dismissal and remanded the case to the district court. On remand, the district court must first determine if the Eleventh Amendment bars the plaintiffs' claims against the state officials. If the Eleventh Amendment does not bar the claims, the court will then address the substantive First and Fourteenth Amendment arguments regarding the vagueness and overbreadth of Rule 8.4(7). The ruling clarifies that lawyers do not need to wait for actual enforcement to challenge rules that arguably restrict their speech if they face a credible threat of discipline.
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