FREE SPEECH GOOD NEWS: The Tennessee Supreme Court Rejects ABA Model Rule 8.4(g).

On April 23, the Supreme Court of Tennessee denied a petition to adopt a slightly modified version of ABA Model Rule 8.4(g). The Court had held a public comment period on the petition, which was filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility. During the comment period, the Court received over 400 pages of public comment.

The Tennessee Attorney General filed a comment letter with the Court, explaining that a black-letter rule based on ABA Model Rule 8.4(g) “would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.” The comment letter was incorporated into Attorney General Opinion No. 18-11 (Mar. 16, 2018), which noted that ABA Model Rule 8.4(g) “has been widely and justifiably criticized as creating a ‘speech code for lawyers’ that would constitute an ‘unprecedented violation of the First Amendment’ and encourage, rather than prevent, discrimination by suppressing particular viewpoints on controversial issues.”

Noting the rule’s application to “‘verbal . . . conduct’ – better known as speech,” Tennessee Attorney General Slatery’s comments concluded that “any speech or conduct that could be considered ‘harmful’ or ‘derogatory or demeaning’ would constitute professional misconduct within the meaning of the proposed rule.”

In short, it’s just another rule designed to empower lefty speech police. No wonder the ABA is pushing it.