Unprofessional Conduct: Free speech doesn't cover elected official's coarse comments, court says
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A former Iowa county attorney who was elected to the prosecutorial position made crude comments at work about same-sex prison rape, called some judges “bitches” and spoke about the genital function of another after losing a motion.
Reuben Neff, who was first elected as the Wapello County Attorney in 2018 and resigned in March, did not convince the Iowa Supreme Court that he had a First Amendment right to say those things. On April 12, the court affirmed the Iowa Supreme Court Grievance Commission’s finding of a rule violation, but reduced its proposed sanction from a 60-day license suspension to a public reprimand.
“Wishing violence, harm and rape on the criminally accused was contrary to Neff’s duties as a law enforcement officer. In addition to wishing sexual violence against accused persons, Neff sex-stereotyped judges with whom he disagreed,” the court wrote.
Matthew Sease, Neff’s lawyer, says they filed a petition with the U.S. Supreme Court in July. “While we were disappointed with the finding that Mr. Neff violated the Iowa Rules of Professional Conduct, we certainly appreciate the Iowa Supreme Court’s thoughtful considerations in reducing the severity of the punishment to a more appropriate public reprimand,” he says.
No employee who worked for Neff filed a complaint against him for violating the office’s sexual harassment policy, according to the finding. However, one did tell him his comments were inappropriate and that his behavior was one reason she left her job at the office.
Neff was accused of violating Iowa Rule of Professional Conduct 32:8.4(g), which states that it is professional misconduct for a lawyer to “engage in sexual harassment or other unlawful discrimination in the practice of law.” Iowa’s 8.4(g) differs in wording from the ABA Model Rule 8.4(g), which goes further and provides that 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.”
Neff oversaw an office of 10 employees—nine women and one man. In its recommendation, the grievance commission noted several aggravating factors, including that Neff was an elected official with power over employees and that his actions caused two of them to resign from the office. The commission also identified several mitigating factors, including lack of prior discipline, cooperation with the disciplinary process, dedication to public work and favorable character references.
In his appeal, Neff’s attorneys argued his comments were protected by the First Amendment. They argued his alleged harassment involved pure speech and thus must comport with free speech standards.
In its opinion, Iowa Supreme Court Attorney Disciplinary Board v. Neff, the state supreme court emphasized that there is a compelling government interest in preventing harassment and discrimination in the workplace.
“There is also no doubt that punishing a lawyer for sexual harassment based solely on offensive speech can create tension with the Supreme Court’s First Amendment jurisprudence,” the court wrote. “Under the Supreme Court’s precedents, the government does not have an interest in regulating speech solely because of its offensive content.”
But the Iowa Supreme Court wrote that “the constitutional protection afforded speech can be satisfied in the attorney disciplinary context by requiring a showing in the nonexpressive impact of the speech resulted in objective harm beyond mere ‘adverse emotional impact on the audience.’”
Applying this standard, the court found that Neff’s conduct—viewed as a whole—rose to the level of objective harm without violating his First Amendment rights.
The court also noted that the rule was not overbroad, in part because it applied only to speech and conduct that took place during the practice of law.
“This is a somewhat tough case because it involved only speech, unlike the earlier Iowa cases involving sexual touching and other misconduct,” says Keith Swisher, an ethics professor at the University of Arizona James E. Rogers College of Law.
“Even though Neff engaged only in speech, not conduct, the court was correct to discipline him. He was the county attorney, making sexualized and bigoted remarks to female employees in the office. An employee should not have to hear jokes about prison rape or bigoted insults from her boss while at work,” Swisher adds, noting that the court did opt for a public reprimand rather than the 60-day suspension suggested by the grievance commission.
Sexual harassment problem
Susan Saab Fortney, a professor and director of the Program for the Advancement of Legal Ethics at the Texas A&M University School of Law, says the case highlights the continuing problem of sexual harassment in the legal profession. The Iowa case is noteworthy, she adds, because it signals the court and its disciplinary arm recognizes the problem of sexual harassment in the legal system.
“Survey results in a landmark International Bar Association study revealed that 54% of U.S. female respondents and 11% of U.S. male respondents reported being sexually harassed,” she says, referring Us Too?: Bullying and Sexual Harassment in the Legal Profession.
This survey, published in May 2019, examined sexual harassment in the legal profession in various countries, including the United States, Australia, Brazil, Costa Rica, Malyasia, Russia, South Africa, Sweden and the United Kingdom.
The report suggests taking “all necessary steps” to raise awareness about sexual harassment with younger lawyers. It also calls on law schools to discuss sexual harassment and workplace bullying in class.
Much sexual harassment goes chronically unreported, Fortney says.
“Imposing sanctions for sexual harassment and other workplace misconduct that violates applicable rules of professional conduct may deter future misconduct and foster public confidence in a regulatory regime that holds lawyers accountable,” she says.
This story was originally published in the October/November 2024 issue of the ABA Journal under the headline: “Unprofessional Conduct: Free speech doesn’t cover elected official’s coarse comments, court says.”
David L. Hudson Jr. is an associate professor at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.
