1. He has engaged in “verbal … conduct” that “manifests bias or prejudice” towards gays, Muslims, or transgender people.
2. Some people view such statements as “harmful”; those people may well include bar authorities.
3. This was done in an activity “in connection with the practice of law” — Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it’s organized through a local bar association, or a business activity.)
4. The statement isn’t about one person in particular (though it could be — say the debater says something critical about a specific political activist or religious figure based on that person’s sexual orientation, religion or gender identity). But “anti-harassment … case law” has read “harassment” as potentially covering statements about a group generally, even when they aren’t said to or about a particular offended person, and the rule is broad enough to cover statements about “others” as groups and not just as individuals.
Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.
This also goes beyond existing hostile work environment harassment law under Title VII and similar state statutes. That law itself has potential First Amendment problems, as I’ve argued and as some courts have recognized (though others have disagreed); see, for instance, the recent “Don’t Tread on Me” controversy. But in most states, it doesn’t include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn’t cover social activities at which co-workers aren’t present; but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.
Hostile work environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the provision that “anti-harassment … case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision only says that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any “harmful verbal … conduct,” including isolated statements.
I’ll have more soon on other aspects of the proposal (such as the remarkable implications of banning discrimination based on “socioeconomic status”); but here I just wanted to focus on the proposed speech code. For more on the debate about this issue, see this article by Sara Randazzo in today’s Wall Street Journal.