22-3106 Cerame v. Slack

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: September 8, 2023 Decided: December 9, 2024)

No. 22-3106

––––––––––––––––––––––––––––––––––––

MARIO CERAME and TIMOTHY MOYNAHAN,

Plaintiffs-Appellants,

-v.-

CHRISTOPHER L. SLACK, in his official capacity as Connecticut Statewide Bar Counsel, and MATTHEW G. BERGER, in his official capacity as Chair of the Statewide Grievance Committee,

Defendants-Appellees. *

––––––––––––––––––––––––––––––––––––

Before: LIVINGSTON, Chief Judge, WALKER, and SULLIVAN, Circuit Judges.

Plaintiffs-Appellants Mario Cerame and Timothy Moynahan, members of the Connecticut State Bar, brought challenges based, as relevant here, on the First

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. The complaint here was originally filed against Michael P. Bowler in his official capacity as Connecticut Statewide Bar Counsel. However, Bowler no longer holds that position. As a result, under Fed. R. App. P. 43(c)(2), the current Statewide Bar Counsel, Christopher L. Slack, is automatically substituted as a party.

1 Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution, to Connecticut Rule of Professional Conduct 8.4(7) (“Rule 8.4(7)”), which makes it professional misconduct for a lawyer to “[e]ngage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” on the basis of fifteen protected categories “in the practice of law.” The district court (Thompson, J.) dismissed the complaint, holding that Cerame and Moynahan lack standing to mount a pre-enforcement challenge to Rule 8.4(7). We conclude that Cerame and Moynahan have standing to seek pre-enforcement relief because they have pleaded sufficient facts to plausibly allege that they intend to engage in conduct that is arguably proscribed by Rule 8.4(7) and face a credible threat of enforcement. Accordingly, the judgment of the district court is VACATED.

FOR PLAINTIFFS-APPELLANTS: RICHARD A. SAMP (Margaret A. Little, on the brief), New Civil Liberties Alliance, Washington, DC.

FOR DEFENDANTS-APPELLEES: MICHAEL K. SKOLD, Deputy Solicitor General (Emily Gait, Assistant Attorney General, on the brief), on behalf of William Tong, Attorney General, State of Connecticut, Hartford, CT.

DEBRA ANN LIVINGSTON, Chief Judge:

Plaintiffs-Appellants Mario Cerame and Timothy Moynahan (together

“Appellants”) are Connecticut-licensed lawyers and thus subject to the

Connecticut Rules of Professional Conduct. They engage in speech related to their

law practice that they assert may run afoul of the recently enacted Connecticut

2 Rule of Professional Conduct 8.4(7) (“Rule 8.4(7)”). 1 Cerame and Moynahan sued

Defendants-Appellees (“Appellees”), officers of the Connecticut State Bar (the

“Bar”), in their official capacities, pursuant to

, asserting First and

Fourteenth Amendment challenges to Connecticut’s new rule. 2 Appellants

contend that Rule 8.4(7) imposes content-based and viewpoint-based restrictions

on speech that cannot survive strict scrutiny and that the Rule is unconstitutionally

vague.

Cerame and Moynahan appeal from a judgment dismissing their claims.

The district court (Thompson, J.) determined that Appellants lack standing to

assert a pre-enforcement challenge to Rule 8.4(7) because they do not possess a

“real and imminent fear” of enforcement. Cerame v. Bowler, No. 3:21-cv-1502

(AWT),

, at *8 (D. Conn. Aug. 29, 2022). We disagree. In principal

part, the district court failed to credit Appellants’ well-pleaded allegations

regarding the speech in which they wish to engage and assessed, not whether such

1To the extent Cerame and Moynahan also allege that they engage in potentially controversial speech unrelated to their law practice, such speech does not arguably fall within Rule 8.4(7), nor do we understand the Appellants to argue that it does. We therefore do not address such speech further.

2 Appellants also asserted claims based on the Connecticut Constitution but have not addressed the dismissal of those claims on appeal. Accordingly, they have forfeited them. Phx. Light SF Ltd. v. Bank of N.Y. Mellon,

, 372 (2d Cir. 2023) (“Issues not sufficiently argued in the [appellate] briefs are considered [forfeited] and normally will not be addressed on appeal.”) (quoting Norton v. Sam’s Club,

(2d Cir. 1998)).

2 speech is arguably proscribed, but whether it is in fact proscribed. This was error.

Because Appellants have alleged facts plausibly suggesting that a credible threat

of initiation of disciplinary proceedings pursuant to Rule 8.4(7) chills their speech,

they have articulated an injury in fact that is sufficiently concrete and imminent to

confer Article III standing at the motion to dismiss stage. Accordingly, we vacate

the district court’s ruling and remand for consideration of whether the Eleventh

Amendment bars these claims.

BACKGROUND

I. Factual Background 3

A. Rule 8.4(7)

The Connecticut Rules of Professional Conduct were adopted by the judges

of the Connecticut Superior Court to regulate the conduct of the State’s licensed

attorneys. Cohen v. Statewide Grievance Comm.,

(2021).

Violations of these Rules are subject to sanction, up to and including the loss of

one’s license to practice law. Connecticut’s twenty-one-member State Grievance

Committee (the “SGC”), operating pursuant to authority delegated by the judges

of the Connecticut Superior Court, both adjudicates grievance complaints and

3 The facts here are taken from the complaint and are accepted as true for the purposes of this appeal. See Vitagliano v. County of Westchester,

, 133 n.3 (2d Cir. 2023).

3 supervises the work of Connecticut’s Statewide Bar Counsel, who is the official

charged, inter alia, with the initial review of all grievance complaints filed with the

SGC. See Statewide Grievance Comm. v. Presnick,

, 166–67 (1990).

Any person who believes that a Connecticut-licensed attorney has violated

a rule of professional conduct, including Rule 8.4(7), may file a grievance

complaint with the Statewide Bar Counsel. Conn. R. Super. Ct. § 2-32(a). If the

Statewide Bar Counsel determines that a complaint is deficient on one of ten

enumerated grounds—including a failure to allege sufficient facts which, if true,

constitute a violation of applicable rules—the Counsel may recommend dismissal

of the complaint without requiring a response from the attorney. Id. § 2-32(a)(2).

Otherwise, the complaint is forwarded to a local grievance panel. Id. § 2-32(b).

The grievance panel will investigate the complaint, may elect to hold a hearing,

and will then make a probable cause determination. Id. § 2-32(h), (i). If the panel

determines there is probable cause that the attorney is guilty of misconduct, the

complaint will be sent to the SGC and become a matter of public record. Id. § 2-

32(i), (k). The SGC or a designated reviewing committee will hold a hearing in

which the respondent may be represented by counsel and may present and cross-

examine witnesses. Id. § 2-35(c), (h). The SGC will then render a final written

4 decision that either dismisses the complaint, imposes sanctions, or directs the

disciplinary counsel to file a presentment against the respondent in Superior Court

for more serious matters. Id. § 2-35(i). The respondent may appeal a decision

imposing sanctions to the Connecticut Superior Court. Id. § 2-38(a).

As in many states, the Connecticut Rules of Professional Conduct are

substantially identical to the Model Rules of Professional Conduct of the American

Bar Association (the “ABA”). In 2016, the ABA amended its existing Model Rule

8.4 to include a new Rule 8.4(g) that purports to expand the regulation of

harassment and discrimination by attorneys. 4 In early 2020, two Connecticut

attorneys submitted a proposal to the Rules Committee of the Connecticut

Superior Court, urging adoption of ABA Model Rule 8.4(g) as part of the

Connecticut Rules of Professional Conduct. The Rules Committee thereafter

requested that the Connecticut Bar Association (the “CBA”) submit a

recommendation regarding the request.

4 Model Rule 8.4(g) reads as follows:

It is professional misconduct for a lawyer to: . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

5 In September 2020, the CBA’s House of Delegates voted to support adoption

of a slightly revised version of Rule 8.4(g), which the CBA thereafter submitted to

the Rules Committee. The Rules Committee solicited and received a great deal of

commentary on the proposed rule, both positive and negative. 5 The Rules

Committee, at its February 2021 meeting, nonetheless voted to submit the proposal

to a public hearing without change. In the aftermath of that hearing, the Rules

Committee recommended adoption of the CBA’s proposed new rule to the judges

of the Connecticut Superior Court. In June 2021, those judges adopted the current

Rule 8.4(7) at their annual meeting, without discussion and by voice vote. The rule

became effective on January 1, 2022, making Connecticut one of just a few

jurisdictions that have adopted an anti-discrimination rule with substantively

identical language to the ABA’s proposal.

As adopted, Rule 8.4(7) provides as follows:

It is professional misconduct for a lawyer to . . . (7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy,

5The Statewide Bar Counsel, for instance, on behalf of the Statewide Grievance Committee, noted in a December 29, 2020 email that while the Committee was taking no formal position opposing the proposal, it “had concerns over the clarity and scope of the rule” and that, in its view, the terms discrimination, harassment, and conduct related to the practice of law, as used in the proposed Rule’s text, were “not clearly defined in either the proposal or its commentary.” Joint App’x 13, 39, 43. The Committee also observed that the proposal was “constitutionally charged,” and it expressed the view that the then- current Rules were being “robustly” applied to limit and deter the conduct that the new Rule would supposedly address. Id.

6 religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation, or to provide advice, assistance or advocacy consistent with these Rules.

Conn. R. Pro. Conduct 8.4(7). The Commentary to Rule 8.4 defines discrimination

to “include[] harmful verbal or physical conduct directed at an individual or

individuals that manifests bias or prejudice on the basis of one or more of the

protected categories.” 6 Id. cmt. Harassment is defined to “include[] severe or

pervasive derogatory or demeaning verbal or physical conduct.” Id.

In addition, while previous Commentary to Rule 8.4 specified that attorneys

were subject to discipline for misconduct “in the course of representing a client,”

Joint App’x 14, the current Commentary to Rule 8.4 broadly defines “conduct

related to the practice of law,” as used in Rule 8.4(7)’s text, as follows:

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or professional activities or events in connection with the practice of law.

6Connecticut law instructs that the Rules of Professional Conduct and the Commentary “must be read together . . . to be fully and properly understood.” Cohen,

(quoting State v. DeJesus,

, 422 n.16 (2008)). Accordingly, we do so here.

7 Conn. R. Pro. Conduct 8.4 cmt. The complaint alleges that “Rule 8.4(7)’s new focus

on events unrelated to client representation is a major purpose of the

amendment.” 7 Joint App’x 17, Compl. ¶ 49.

Finally, sanctions are not limited to those attorneys who “knowingly”

engage in the prohibited verbal or physical conduct but extend to those attorneys

who “reasonably should know” that their conduct is prohibited. 8 Joint App’x 17,

Compl. ¶ 47; Conn. R. Pro. Conduct 8.4(7). The Commentary provides, however,

that “[a] lawyer’s conduct does not violate paragraph (7) when the conduct in

question is protected under the first amendment to the United States Constitution

or article first, § 4 of the Connecticut constitution.” Conn. R. Pro. Conduct 8.4 cmt.

B. Moynahan and Cerame’s Speech

Moynahan and Cerame are lawyers with Connecticut bar licenses who

“regularly speak out” on issues, including the free exercise of religion and critical

race theory, that implicate several of Rule 8.4(7)’s protected categories. Joint App’x

7The allegation references testimony by the CBA’s president before the Rules Committee regarding a CBA survey which showed members of Connecticut’s bar complaining of allegedly harassing conduct by attorneys at “professional events, e.g., bar association events, CLE, professional networking.” Joint App’x 17–18, Compl. ¶ 49.

A provision previously affirming that “[a] lawyer may refuse to comply with an obligation 8

imposed by law upon a good faith belief that no valid obligation exists” was also removed from the Commentary. Joint App’x 14, Compl. ¶ 41.

8 18, Compl. ¶ 51. They do so in “legal blogs, articles in legal publications,

continuing legal education (CLE) events, legal seminars, press releases, and public

speeches.” 9 Id. Both allege that they speak “in forceful terms” on these occasions

and that others expressing opposing points of view may, on occasion, construe

their remarks “as personally derogatory or demeaning.” Joint App’x 18, Compl.

¶ 52. Indeed, Cerame and Moynahan allege that statements by supporters of Rule

8.4(7) indicate that these supporters “seek[] to target comments similar to those”

that Moynahan and Cerame “routinely make.” 10 Joint App’x 18, Compl. ¶ 53.

Moynahan and Cerame also allege in Paragraph 58 of the complaint that

“[t]here are numerous examples of speech” fully protected by the First

Amendment that members of the Connecticut bar will be reluctant to engage in,

given the fear of a misconduct complaint. Joint App’x 20, Compl. ¶ 58. These

9 Moynahan, for instance, has spoken at public forums, including law schools, in support of First Amendment free speech and association rights. Recently, he has “outspokenly opposed efforts by some educators to adopt curricula based on critical race theory—in particular, teaching students that systemic racism is endemic, that American culture is based on white privilege and supremacy, and that ‘diversity’ and ‘equity’ are cultural imperatives.” Joint App’x 9, Compl. ¶ 18.

10 The complaint references, in particular, testimony by one of the Rule’s principal sponsors in

support of the bill. She recounted that after she spoke at a bar-related event in support of racial justice measures, another lawyer there engaged her in a heated conversation in which he called her a “race pandering nitwit” who was “suffering from black entitlement”—conduct, she testified, that “should never be okay.” Joint App’x 18–19, Compl. ¶ 54. Appellants contend that such speech “is fully protected by the First Amendment,” but “arguably actionable under Rule 8.4(7),” giving rise to fear on their part that “they could face a misconduct complaint” for forceful speech on controversial legal issues. Joint App’x 19, Compl. ¶¶ 55–56.

9 include using “the pronoun associated with a transgender individual’s biological

sex when addressing that individual”; using the term “‘gender preference’ rather

than ‘gender orientation’”; “[t]elling jokes to other attorneys that the speaker does

not intend to be taken seriously but that some members of a protected group deem

offensive”; espousing the theories of “sociologist Charles Murray that

socioeconomic disparities among racial groups are to a large degree attributable

to heritable group differences in cognition and adverse social behaviors, not

systemic racial discrimination”; and publishing cartoons that “satiri[ze] or

mock[]” “a religious deity” (collectively the “Paragraph 58 examples”). Id.

Appellants assert that they intend neither “to harass or discriminate against any

members of the groups protected by Rule 8.4(7),” but that this lack of intent

“provides no protection for their speech.” Joint App’x 19, Compl. ¶ 56. Moynihan

and Cerame profess that the fear of a misconduct complaint under Rule 8.4(7), and

the repercussions thereof, force them “to speak less openly . . . to reduce the

likelihood that such a complaint will be filed,” id., because they “fear that they may

be sanctioned for the sorts of statements they have made in the past,” Joint App’x

6–7, Compl. ¶ 5.

10 II. Procedural History

In November 2021, Appellants filed suit against Appellees in their official

capacities, asserting First and Fourteenth Amendment claims under

and characterizing Rule 8.4(7) as a content- and viewpoint-based restriction

on speech that fails strict scrutiny and is unconstitutionally vague. Appellees

moved to dismiss for lack of subject matter jurisdiction based on Eleventh

Amendment sovereign immunity and a lack of standing.

The district court granted the motion to dismiss without providing leave to

amend. See Cerame,

, at *10. The district court determined that

Appellants lack Article III standing because they have not adequately alleged an

injury in fact stemming from Rule 8.4(7).

. Relying on an unpublished

District of Connecticut opinion, which in turn relied on a First Circuit case, the

district court held that “two types of injuries may confer Article III standing for

First Amendment challenges.”

(internal quotation marks and alterations

omitted). The district court characterized these injuries as (1) “when the plaintiff

has alleged an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by the statute, and there exists a credible

threat of prosecution,” and (2) “when a plaintiff is chilled from exercising her right

11 to free expression or forgoes expression in order to avoid enforcement

consequences.”

(internal quotation marks and alterations omitted).

Focusing solely on that second type of injury, the district court then held

that the complaint “fails to show that Rule 8.4(7) creates a real and imminent fear

that [Appellants’] rights are chilled” because it “speaks only in terms of

generalities” and “[does not] allege that they have engaged or will engage in the

future in any of the speech or conduct described . . . in paragraph 58 of the

Complaint.”

at *7–9. As the district court construed the complaint and Rule

8.4(7), none of the speech contemplated by the Appellants “constitutes

discrimination or harassment for purposes of Rule 8.4.”

at *7–8. The district

court further found that Appellants’ fear of sanctions was not “well-founded”

because of the lack of history of enforcement of Rule 8.4.

The argument that

Appellants had a real and imminent fear was “also weakened by the language in

the Commentary specifically providing that conduct protected under the First

Amendment does not violate Rule 8.4(7).”

. This appeal followed.

DISCUSSION

We review de novo a district court’s dismissal of a complaint for lack of

standing and construe the complaint in the plaintiff’s favor, accepting as true all

material factual allegations. Katz v. Donna Karan Co., L.L.C.,

(2d

12 Cir. 2017). “To establish Article III standing, a plaintiff must show (1) an ‘injury in

fact,’ (2) a sufficient ‘causal connection between the injury and the conduct

complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a

favorable decision.’” Picard v. Magliano,

(2d Cir. 2022) (quoting

Susan B. Anthony List v. Driehaus,

, 157–58 (2014) (alterations original)).

“At an irreducible minimum, Article III requires the party who invokes the court’s

authority to show that he personally has suffered some actual or threatened injury

as a result of the putatively illegal conduct of the defendant.” Vt. Right to Life

Comm., Inc. v. Sorrell,

, 382 (2d Cir. 2000) (internal quotation marks,

citation, and alterations omitted).

Appellants contend that they meet the relaxed requirements for First

Amendment standing because they have sufficiently alleged that “they are forced

to chill their own speech in order to reduce the likelihood that they will be charged

with violating Rule 8.4(7).” 11 Appellants’ Br. at 16. The district court determined,

to the contrary, that Appellants have not suffered an injury in fact and thus fail on

11 Although standing is required for each claim, because the injury is the same for the First Amendment and Fourteenth Amendment claims in this case—the chilling of protected speech caused by the potential for disciplinary proceedings for violating Rule 8.4(7)—we perform only one analysis. See Babbitt v. United Farm Workers Nat’l Union,

, 297–99 (1979) (using one standard to analyze standing for a pre-enforcement challenge invoking the First and Fourteenth Amendments); Isaacson v. Mayes,

, 1097–99 (9th Cir. 2023) (applying Susan B. Anthony List test to Fourteenth Amendment claims).

13 the first standing requirement. But the district court erred by rigidly dividing pre-

enforcement First Amendment injuries into two types, an approach that is not

followed in the Second Circuit, and then evaluating only whether plaintiffs

established a “real and imminent fear of . . . chilling” their free-speech rights.

Cerame,

, at *7. The district court also failed to credit Appellants’

well-pleaded allegations regarding the speech in which they wish to engage and

erroneously assessed not whether such speech is arguably proscribed but whether

it is in fact proscribed. In addition, the district court placed undue emphasis on

both the lack of enforcement history of a new rule and the First Amendment carve-

out to Rule 8.4(7). Appellants have adequately alleged that they suffered an injury

in fact, that this alleged injury was caused by Rule 8.4(7), and that the alleged

injury is redressable by a ruling in their favor. Accordingly, Appellants have

standing at this stage of the proceedings to proceed with their action.

***

An injury sufficient to satisfy Article III must be “concrete and

particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan

v. Defs. of Wildlife,

(1992). An alleged future injury will suffice if

the threatened injury is “certainly impending” or there is “substantial risk” of

14 harm. Clapper v. Amnesty Int’l USA,

, 414 n.5 (2013). We have held

that pre-enforcement challenges to regulations providing for civil liability can thus

be cognizable under Article III because “plaintiff[s] need not first expose

[themselves] to liability before bringing suit to challenge . . . the constitutionality”

of such regulations. Vitagliano v. County of Westchester,

(2d. Cir.

2023); see also Vt. Right to Life Comm., 221 F.3d at 382 (“The fear of civil penalties

can be as inhibiting of speech as can trepidation in the face of threatened criminal

prosecution.”).

“[W]e assess pre-enforcement First Amendment claims . . . under somewhat

relaxed standing and ripeness rules.” Nat’l Org. for Marriage, Inc. v. Walsh,

(2d Cir. 2013). In contrast to the approach taken by the district court, we

do not begin by dividing pre-enforcement First Amendment injuries into two

distinct types, nor does our standing inquiry turn on whether there is “a real and

imminent fear of . . . chilling.” 12 Cerame,

, at *7. Rather, we apply

12 For example, in Vermont Right to Life Committee, we discussed a plaintiff’s “actual and well- founded fear that the law will be enforced against it” as interrelated with the concerns of a plaintiff engaging in “self-censorship.” 221 F.3d at 382 (internal quotation marks omitted). Indeed, without a credible threat of enforcement, any potential chilling effect on a plaintiff’s speech will be insufficient to confer standing because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum,

, 13–14 (1972). Therefore, the standing inquiry ultimately boils down to whether there is a credible threat of enforcement against a plaintiff. See N.H. Right to Life Pol. Action Comm. v. Gardner,

(1st Cir. 1996) (“The bottom line is that, as long as a credible threat of prosecution exists, a litigant has standing to mount a pre- enforcement challenge to the facial constitutionality of a statute on the basis that her First Amendment

15 the three-pronged test that the Supreme Court set forth in Susan B. Anthony List to

assess the existence of a cognizable injury in fact in the context of a pre-

enforcement First Amendment challenge. See Vitagliano,

(applying

the Susan B. Anthony List test). This test requires a plaintiff to demonstrate: (1) “an

intention to engage in a course of conduct arguably affected with a constitutional

interest”; (2) that the intended conduct is “arguably proscribed by” the challenged

regulation; and (3) that “there exists a credible threat of prosecution thereunder”

that is “sufficiently imminent.” Susan B. Anthony List, 573 U.S. at 159, 162 (internal

quotation marks omitted).

“[E]ach element must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the litigation.” Carter v. HealthPort

Techs., LLC,

(2d Cir. 2016) (quoting Lujan,

). At the

pleading stage, as here, “general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that

general allegations embrace those specific facts that are necessary to support the

rights arguably are being trammel[ed].”); Mangual v. Rotger-Sabat,

(1st Cir. 2003) (“Both the injury based on threat of prosecution and the injury based on self-censorship depend on the existence of a credible threat that the challenged law will be enforced.” (internal quotation marks omitted)).

16 claim.’” Lujan,

. At this stage of the proceedings, Appellants have

adequately pleaded each of the necessary elements to establish an injury in fact for

the purposes of Article III.

First, Appellants’ desire to engage in speech on controversial issues in legal

blogs and articles, at CLE events, and in press releases, public speeches, and other

contexts clearly involves a course of conduct affected with a First Amendment

interest. The district court concluded, to the contrary, that the complaint was

deficient as to this prong on the theory that it “speaks only in terms of generalities”

as to Appellants’ speech, does not explicitly allege that they have engaged or will

engage in any of the speech specifically described in Paragraph 58, and does not

otherwise allege Appellants’ intention to engage in speech that is clearly violative

of Rule 8.4(7). Cerame,

, at *7–9. We disagree.

This case is analogous to Babbitt v. United Farm Workers National Union,

(1979), which involved a pre-enforcement challenge to a statute that made

it an unfair labor practice to encourage consumers to boycott an agricultural

product “by the use of dishonest, untruthful and deceptive publicity.”

.

There, the plaintiffs had engaged in consumer publicity campaigns in the past and

alleged “an intention to continue” such boycott activities.

Significantly, the

17 plaintiffs did not allege a “plan to propagate untruths,” but argued instead that

“erroneous statement is inevitable in free debate,” and that fear of enforcement

was causing them to “forgo full exercise of” their First Amendment rights.

The

Supreme Court concluded based on these allegations that the plaintiffs’ fear of

enforcement was not “‘imaginary or wholly speculative,’” and that their challenge

to the consumer publicity provision “present[ed] a case or controversy within the

jurisdiction of the District Court.”

. As the Supreme Court later put it,

“[n]othing” in its standing decisions “requires a plaintiff who wishes to challenge

the constitutionality of a law to confess that he will in fact violate that law.” Susan

B. Anthony List, 573 U.S. at 163 (citing Babbitt,

).

At the motion to dismiss stage, we draw all reasonable inferences in

Appellants’ favor. Lynch v. City of New York,

(2d Cir. 2020); see also

Lujan,

(noting that courts assessing standing on a motion to dismiss

presume “that general allegations embrace those specific facts that are necessary

to support the claim”); Carter,

(same). The complaint alleges, with

specific examples, that the Appellants “regularly speak out” on controversial

issues, and that they speak “in forceful terms,” such that those expressing

opposing views may view their remarks “as personally derogatory or

18 demeaning.” Joint App’x 18, Compl. ¶¶ 51, 52. Appellants allege that they “fear

that they may be sanctioned for the sorts of statements they have made in the

past,” Joint App’x 6–7, Compl. ¶ 5, and contend that their “past, present, and

future advocacy falls within the ambit of Rule 8.4(7),” Joint App’x 9, ¶ 16. In that

context, Paragraph 58 lists additional examples of speech “fully protected by the

First Amendment . . . that members of the Connecticut bar” (presumably including

Appellants) are “reluctant to express because they reasonably fear that doing so

could result in an attorney misconduct complaint.” Joint App’x 20, Compl. ¶ 58.

The district court is correct that the complaint does not explicitly allege that

Cerame and Moynahan wish to engage in the speech described in Paragraph 58.

See Cerame,

, at *9. But Appellants, Connecticut attorneys who

are “concern[ed]” that “they will be subjected to disciplinary proceedings and

penalties for engaging in constitutionally protected speech,” Joint App’x 21,

Compl. ¶ 60, have consistently argued in their briefing here and before the district

court that they include themselves among the “members of the Connecticut bar”

who will be reluctant to express such views, Appellants’ Br. at 30. At this stage,

when we draw all reasonable inferences in Appellants’ favor and presume “that

general allegations embrace those specific facts that are necessary to support a

19 claim,” Lujan,

, Appellants’ complaint adequately alleges that

Cerame and Moynahan would seek, but for Rule 8.4(7), to engage in speech of the

sort that Paragraph 58 describes.

To be clear, Appellants do not “intend[] to harass or discriminate against

any members of the groups protected by Rule 8.4(7).” Joint App’x 19, Compl. ¶ 56.

But this “lack of intent,” they allege, “provides no protection for their speech,” and

they “feel forced to speak less openly” on topics similar to those about which they

are already outspoken “to reduce the likelihood that [a misconduct complaint] will

be filed.”

This is more than enough at the pleading stage to assert their desire

to engage in a course of conduct affected with a constitutional interest.

Second, Appellants’ contemplated comments are arguably proscribed by

Rule 8.4(7). Plaintiffs are not required to show that they will win on the merits of

their constitutional claims to establish Article III standing. See Holder v.

Humanitarian L. Project,

, 15, 39 (2010) (finding standing sufficient for pre-

enforcement review but deciding that plaintiffs lost on the merits of their

constitutional claims). At this stage, plaintiffs’ “intended conduct need only be

arguably proscribed by the challenged statute, not necessarily in fact proscribed.”

Vitagliano,

(internal quotation marks omitted). Moreover, “a

20 plaintiff’s interpretation” of a prohibition and its application to him need not be

“the best interpretation,” only “reasonable enough” for it to convey standing.

Picard,

; see also Christian Healthcare Ctrs., Inc. v. Nessel,

,

843 (6th Cir. 2024) (defining the arguable proscription standard as whether, “on a

plausible interpretation of the statute, the conduct is forbidden” (internal quotation

marks omitted)). Rule 8.4(7) makes it professional misconduct, inter alia, to engage

in “harmful verbal . . . conduct directed at an individual or individuals that

manifests bias or prejudice on the basis of one or more of the protected categories.”

Conn. R. Pro. Conduct 8.4 cmt. While it is indeed possible that none of the speech

specified in the complaint is actually proscribed by Rule 8.4(7), Appellants’

contrary conclusion that such speech could be deemed professional misconduct is

both “arguable” and “reasonable.” Picard,

.

For example, it is certainly arguable that members of the SGC could

conclude that referring to transgender individuals by pronouns other than those

with which they wish to be addressed is harmful, a manifestation of bias on the

basis of gender identity, and directed at individuals so referenced. Indeed, at oral

argument, Appellees’ counsel were unable to answer definitively whether this

example was prohibited under Rule 8.4(7). Oral Arg. at 35:33-37:38. To be clear,

21 we do not defer to the Appellees’ interpretation of the Rule to determine if conduct

is arguably proscribed. See Picard,

; Vt. Right to Life Comm., 221 F.3d

at 383. But the fact that Appellees’ counsel was unable to give a considered

opinion as to the new Rule’s application to the speech referenced in the complaint

is illustrative of the reasonableness of Appellants’ legitimate fear of discipline in

the event that they engaged in such speech in the future.

Appellees argue that the commentary to Rule 8.4, providing that an attorney

“does not violate paragraph (7) when the conduct in question is protected under

the first amendment to the United States constitution,” Conn. R. Pro. Conduct 8.4

cmt., “unambiguously shows that the Rule does not proscribe protected speech,”

Appellees’ Br. at 14; see also Oral Arg. at 25:15-26:55. Citing to the Fifth Circuit’s

decision in CISPES (Committee in Solidarity with People of El Salvador) v. FBI,

(5th Cir. 1985), Appellees contend that the First Amendment carve-out is

“‘a valuable indication of [the Judges’] concern for the preservation of First

Amendment rights in the specific context of the [Rule],’ and ‘serves to validate a

construction of the [Rule] . . . which avoids its application to protected

expression.’” Appellees’ Br. at 15–16 (quoting CISPES,

). But

CISPES is inapposite. There, the Fifth Circuit addressed a First Amendment

22 overbreadth challenge and relied on a similar First Amendment carve-out “to

validate a construction of the statute which avoid[ed] its application to protected

expression.” CISPES,

. Because the CISPES court was facing an

overbreadth challenge, however, its task was actually to construe the statute—to

determine what it in fact proscribed—“to avoid constitutional infirmities, if such a

construction [was] possible.”

. But we are neither construing Rule

8.4(7), nor are we engaged in a merits inquiry.

Both the Supreme Court and this Court have made clear that in the type of

pre-enforcement challenge presented here, the question is whether the

contemplated conduct is “‘arguably proscribed’ by the challenged [provision], not

whether the intended conduct is in fact proscribed.” Picard,

. Thus,

we held that the speech at issue in Picard was arguably proscribed even though

New York State had affirmatively disclaimed the statutory interpretation relied

upon by the plaintiff and we assumed arguendo that the State’s interpretation of

the statute was “more persuasive.” Picard,

. Here, a good faith belief

that the speech at issue is protected by the First Amendment is not a defense to a

sanctions action brought pursuant to Connecticut’s new rule. And Rule 8.4(7) is

not limited to harassment or discrimination that is knowing or intentional; to the

23 contrary, it has potential application to attorneys who may inadvertently offend

their audience. Cf. Greenberg v. Lehocky,

, 385–86 (3d Cir. 2023), cert

denied,

(2024) (finding that an attorney lacked standing to challenge

a similar rule of professional conduct in Pennsylvania because that rule did not

extend to inadvertent conduct and required an attorney to act “knowingly”). 13

Although the First Amendment carve-out may make it more likely that the

SGC will conclude that some speech that would otherwise fall within the text of

Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to

render Appellants’ fear of a misconduct complaint and its professional

repercussions “imaginary or wholly speculative” for Article III purposes. Babbitt,

; see also Gulf Oil Co. v. Bernard,

, 103 n.17 (1981) (noting

that an exception to a speech restriction that permits constitutional speech “d[oes]

little to narrow the scope of the limitation on speech” because speakers can still be

required to defend the constitutionality of their speech and are at risk of “after-

13 Greenberg is distinguishable from the instant case due to distinctions between Pennsylvania’s Rule of Professional Conduct 8.4(g), also patterned on the ABA’s Model Rule 8.4(g), and Connecticut’s significantly broader rule, as well as interpretative guidance provided in Pennsylvania but not here. There, the Third Circuit determined that the plaintiff lacked standing to challenge Pennsylvania’s rule because the plaintiff’s planned speech was not arguably prohibited. The Third Circuit reached this conclusion in part because Pennsylvania’s rule, unlike Connecticut’s, “prohibits only harassment and discrimination that is knowing or intentional.”

. In addition, the Chief Disciplinary Counsel there had reviewed the plaintiff’s “planned presentations, speeches, and writings and stated they do not violate the Rule” and the Office of Disciplinary Counsel had interpreted Pennsylvania’s rule not to prohibit “general discussion of case law or ‘controversial’ positions or ideas.”

.

24 the-fact” liability). The question of what speech is protected by the First

Amendment often requires careful consideration of its content and surrounding

circumstances, especially when considering the speech of lawyers outside the

familiar context of the courtroom, where “[o]bedience to ethical precepts may

require abstention from what in other circumstances might be constitutionally

protected speech.” Gentile v. State Bar of Nev.,

(1991) (quoting

In re Sawyer,

, 646–47 (1959) (Stewart, J., concurring in the judgment)).

Simply put, a blanket First Amendment carve-out is not enough to negate

Appellants’ reasonable fear that their proposed speech may be proscribed by Rule

8.4(7).

Third, and finally, Appellants have demonstrated that they face a credible

threat of enforcement. Whether a threat of enforcement is credible “necessarily

depends on the particular circumstances at issue, and will not be found where

plaintiffs do not claim that they have ever been threatened with prosecution, that

a prosecution is likely, or even that a prosecution is remotely possible.” Picard,

. Appellants contend that the initiation of disciplinary proceedings

against them under Rule 8.4(7) is likely enough. In evaluating whether this is so,

we consider, among other factors, the presumption that the government intends

25 to enforce its laws, the recency of the applicable regulation, the general extent of

enforcement against similar conduct, and whether there has been any specific

disavowal of enforcement against a plaintiff or his conduct. See Vitagliano, 71 F.4th

at 138–39. Here, Appellees focus on only the last two factors. They do not contend

that they will not enforce Rule 8.4(7), nor can they contest that Rule 8.4(7) is a

recent enactment.

Appellees nonetheless argue that Appellants’ fear of enforcement is not

credible because Appellees have neither sanctioned anyone for similar conduct

under the prior version of Rule 8.4(7), nor sanctioned anyone since Rule 8.4(7)

became operative. Appellees’ Br. at 16. We disagree. The lack of sanctions is

unpersuasive because Rule 8.4(7) is a new rule and, at the time Appellants filed

this pre-enforcement challenge, there was no history of non-enforcement from

which we could infer a lack of future intent to enforce it. 14 Tingley v. Ferguson,

, 1069 (9th Cir. 2022) (“[T]he history of enforcement[] carries little weight

when the challenged law is relatively new.” (internal quotation marks omitted)).

As we have said before, evidence of past enforcement, though relevant, is not

14 That the SGC has not sanctioned anyone while it is actively litigating the constitutionality and contours of Rule 8.4(7) is also unpersuasive because it may be making strategic choices in the context of litigation to which it is not bound after the litigation ends. See Picard,

(explaining that because the government is not “forever bound, by estoppel or otherwise, to the view of the law that it asserts in this litigation,” its interpretation is not dispositive).

26 “necessary to make out an injury in fact.” Vitagliano,

. Further, the

history leading up to the enactment of Rule 8.4(7) reflects an intent to go beyond

the precursor to Rule 8.4(7) to reach conduct, for instance, not only in the course

of representing a client, but also in the context of “participating in bar association,

business or professional activities or events in connection with the practice of law.”

Conn. R. Pro. Conduct 8.4 cmt; see also Joint App’x 17–18, Compl. ¶ 49 (noting Rule

8.4(7)’s “new focus on events unrelated to client representation”). Accordingly,

the lack of an earlier enforcement history does not evince a lack of intent to enforce

the new rule. See Bryant v. Woodall,

(4th Cir. 2021) (holding that

plaintiff abortion providers had established a credible threat of prosecution under

state laws criminalizing abortions in part because recent amendments “cast doubt

on whether North Carolina is truly disinterested in enforcing” those laws). And

nothing in the limited history of Rule 8.4(7) overcomes the general presumption

that the government will enforce the laws it enacts. Hedges v. Obama,

(2d Cir. 2013) (“[N]either this Court nor the Supreme Court has required much

to establish [a credible threat of enforcement] in challenges to ordinary criminal or

civil punitive statutes. Rather, we have presumed that the government will

enforce the law.”).

27 Appellees once again point to the First Amendment carve-out, arguing that

because they have “disavowed both the authority and the intent to enforce against

protected speech,” there is no credible threat of enforcement against Appellants.

Appellees’ Br. at 16. But the First Amendment carve-out is not a disavowal of

enforcement against Appellants or their contemplated speech. 15 See Fischer v.

Thomas,

(6th Cir. 2022) (per curiam) (listing disavowal of

enforcement against plaintiffs as a factor in analyzing credible threat of

enforcement); cf. Buscemi v. Bell,

(4th Cir. 2020) (accepting a

stipulation that the statute in question would not be applied to the plaintiff in

concluding that plaintiff had failed to allege a credible threat of enforcement and

thus lacked standing). While Appellees contend that the carve-out shows that

those involved in the grievance procedures will be cognizant of First Amendment

principles when enforcing Rule 8.4(7), its uncertain reach—as evidenced by

15 This fact distinguishes this case from Blum v. Holder,

(1st Cir. 2014), on which Appellees principally rely. In concluding that the plaintiff there did not face a credible threat of enforcement, the First Circuit noted that the challenged statute contained “explicit rules of construction protecting First Amendment rights.”

. And the government in that case had also “disavowed any intention to prosecute plaintiffs for their stated intended conduct because, in its view, that conduct [was] not covered” by the statute.

. Moreover, our sister circuit gave “[p]articular weight” to the Government’s explicit disavowal “of any intention to prosecute on the basis of the Government’s own interpretation of the statute and its rejection of plaintiff’s interpretation as unreasonable.”

. (emphasis added). Here, Appellees have neither addressed the speech outlined in the complaint, nor articulated their own understanding of Rule 8.4(7), so as to address uncertainty as to its scope. The First Amendment carve-out on which Appellees so heavily rely, moreover, falls far short of a set of “explicit rules of construction” aimed at protecting First Amendment rights.

28 Appellees’ inability to answer whether specific examples of speech constitute

professional misconduct under Rule 8.4(7)—makes differing interpretations of

Rule 8.4(7)’s scope likely. And we are not permitted to place Appellants’ First

Amendment rights “at the sufferance” of the SGC. Vt. Right to Life Comm., 221 F.3d

at 383.

Appellees finally argue, invoking Clapper,

, that their multistage

grievance procedures render Appellants’ fears unreasonable because a “long

string of hypothetical events would have to occur for [Appellants] to be

disciplined.” Appellees’ Br. at 21. Again, we disagree. Clapper, which did not

involve the threat of an enforcement action, in no way abrogated, and in fact

reiterated, the Supreme Court’s precedent that standing may exist when an

individual is subject to the substantial risk of an enforcement action that he claims

deters his exercise of constitutional rights.

n.5. Indeed, “an actual

arrest, prosecution, or other enforcement action is not a prerequisite to challenging

the law.” Susan B. Anthony List, 573 U.S. at 158.

“[A]dministrative action, like arrest or prosecution,” moreover, even when

discipline does not ensue, “may give rise to harm sufficient to justify pre-

enforcement review.” Id. at 165; see also Abbott v. Pastides,

(4th

29 Cir. 2018) (reasoning that a threatened administrative inquiry could confer

standing if it “imposes some significant burden, independent of any ultimate

sanction”). Though Connecticut’s grievance process is multistage, injuries may

arise early in the process. Cf. Susan B. Anthony List, 573 U.S. at 165–66 (noting that

a pre-election probable cause finding that a candidate violated a prohibition on

making false statements during a political campaign could itself be viewed by the

public as a sanction). Grievance complaints become a matter of public record as

soon as the initial grievance panel makes a probable cause determination. Conn.

R. Super. Ct. § 2-32(k). And attorneys may be forced to divert time and resources

defending against Rule 8.4(7) complaints even if their speech is ultimately deemed

protected by the First Amendment.

The threat of enforcement resulting in discipline, moreover, is itself both

credible and substantial. As already noted, Appellees have not disavowed

enforcement of the new rule. See Susan B. Anthony List, 573 U.S. at 165. And here,

as in Susan B. Anthony List, the “universe of potential complainants is not restricted

to state officials who are constrained by explicit guidelines or ethical obligations,”

but extends to any person. Id. at 164. Moreover, the complaint alleges that

members of the Connecticut bar have made clear that they view Rule 8.4(7) as

30 prohibiting speech like that contemplated by Appellants and that they intend to

pursue disciplinary action against attorneys who engage in such speech. See Joint

App’x 18–19, Compl. ¶ 54. And most significantly, Appellees point to no

guidelines for the State Bar Counsel and the SGC, beyond the general First

Amendment carve-out, that might inform the exercise of judgment in the

application of Rule 8.4(7). In such circumstances, we cannot conclude that

Appellants’ fear of enforcement is “imaginary or wholly speculative.” Babbitt,

.

At this stage in the proceedings, Appellants have alleged plausibly that they

intend to engage in speech proscribed, at least arguably, by a recently enacted,

focused regulation. This gives rise to a credible threat of enforcement. See

Vitagliano,

; Speech First, Inc. v. Fenves,

(5th Cir.

2020) (“‘[W]hen dealing with pre-enforcement challenges to recently

enacted . . . statutes that facially restrict expressive activity by the class to which

the plaintiff belongs, courts will assume a credible threat of prosecution in the

absence of compelling contrary evidence.’” (quoting N.H. Right to Life PAC v.

Gardner,

(1st Cir. 1996))). Appellants have thus adequately alleged an

injury in fact for Article III standing. They have additionally pleaded causation

31 and redressability because their injury is fairly traceable to Rule 8.4(7) and can be

addressed by their requested relief. See Lujan, 504 U.S. at 560–61. Accordingly,

Appellants have adequately pleaded that they have standing to bring this

challenge to Rule 8.4(7). 16

CONCLUSION

For the foregoing reasons, we VACATE the district court’s judgment and

REMAND to the district court to consider, in the first instance, whether the

Eleventh Amendment bars plaintiffs’ claims.

16 We acknowledge that “the proof required to establish standing increases as the suit proceeds,” even as “the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n,

(2008). Here, inferences appropriate when considering Appellees’ motion to dismiss may be inappropriate when weighing a motion for summary judgment. We express no view as to whether Appellants have established standing at any later stage of these proceedings.

32