IN THE SUPREME COURT OF IOWA
No. 23–0572
Submitted October 11, 2023—Filed April 12, 2024
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
REUBEN ANDREW NEFF,
Appellant.
On appeal from the report and recommendation of the Iowa Supreme
Court Grievance Commission.
In an attorney disciplinary action, the grievance commission recommends
suspension of an attorney’s license for violation of an ethical rule prohibiting
sexual harassment. ATTORNEY REPRIMANDED.
McDonald, J., delivered the opinion of the court, in which all participating
justices joined. Christensen, C.J., and Mansfield, J., took no part in the decision
of the case. Matthew G. Sease (argued) and Delaney J. Kozlowski of Sease & Wadding,
Des Moines, for appellant.
Tara van Brederode, Robert A. Howard, III (argued), and Alexis W. Grove,
Des Moines, for appellee. 2
MCDONALD, Justice. Wapello County Attorney Reuben Neff made inappropriate statements at
work. The Iowa Supreme Court Attorney Disciplinary Board was made aware of
these statements and charged Neff with violating Iowa Rule of Professional
Conduct 32:8.4(g), which provides it is professional misconduct for a lawyer to
“engage in sexual harassment or other unlawful discrimination in the practice of
law.” Based on a stipulated record, the grievance commission found Neff violated
rule 32:8.4(g) and recommended his license be suspended for sixty days. Neff
filed this appeal. In this appeal, Neff argues the Board failed to prove a violation
of the rule. If the Board proved a violation of the rule, Neff contends, the rule
violates the United States Constitution’s First Amendment right to free speech
as applied to the facts of this case and on its face. Finally, Neff argues, if the
board proved a violation of the rule and the rule is constitutional, the grievance
commission’s recommended sanction is too severe. We conclude the Board
proved a violation of the rule, the rule is constitutional as applied and on its face,
and Neff should be reprimanded.
I.
The case was submitted to the grievance commission on a stipulated record. The stipulated record shows the following. Neff was admitted to practice
law in Florida in 2011 and in Iowa in 2017. He was elected to serve as the Wapello
County Attorney in 2018 and served in that position at all times relevant to this
proceeding. The Wapello County Attorney’s Office employed ten individuals.
Among those ten were five attorneys and five administrative staff. Nine of the ten
employees were women. One of those nine women identified as a member of the
LGBTQ+ community. Although this attorney disciplinary proceeding involves
Neff’s inappropriate workplace statements, Neff’s staff “believe[d] that the office dynamics [were] the best that they have been in a number of years and prefer[ed]
[Neff’s] leadership over the leadership of the two prior county attorneys.” 3
Neff made at least nine comments that are at issue in this disciplinary
proceeding. At least some of his comments were made in front of his employees
Tanvi Yenna and Carly Schoemaker. Three of Neff’s comments related to
defendants in criminal cases pending at the county attorney’s office. While
prosecuting a criminal defendant, Neff told Yenna that a criminal defendant’s
“asshole” would be “this big” by the time the criminal defendant left prison. Neff
formed a circular shape with his hands when he made the statement. Another
time, while prosecuting a case involving sexual exploitation of a minor, Neff told
Yenna that the defendant should “lube up” and “grab his ankles.” After losing a
criminal sex abuse case, Neff told Yenna and Schoemaker that he wished the
defendant would be “raped by antelopes and mauled by lions at the same time.”
Neff also made inappropriate comments about judges. Neff “occasionally”
referred to judges as “bitches” following an unfavorable decision. Neff once
referred to a particular judge as a “limp dick” because Neff was frustrated about
how the judge presided over a sexual assault trial in which the defendant was
acquitted.
Finally, Neff told several off-color stories and jokes in the workplace. While
discussing false accusations in criminal cases, Neff relayed to Yenna and Schoemaker that he was falsely accused of sexual assault in college. In the fall
of 2019 or spring of 2020, Neff told Yenna and Schoemaker about a college
memory in which another student came to class wearing pajamas and no shirt.
The student’s penis fell out of his pajama pants, and the professor yelled at the
student that he “[did] not care how proud he was of his size, get out.” Sometime
in early 2020, Neff made a joke. Upon arriving late to the office after
snow-blowing his driveway, Neff remarked that he spent the morning blowing
five inches, though he did not believe his wife minded. In response to a staff member’s smirk, Neff quipped, “[T]hat’s what she said.” This statement was a 4
quotation from a running joke made on the TV show “The Office.” Yenna and
Schoemaker frequently used the quote in the workplace.
The final statement relates to a telephone call Neff received from a member
of the public. Neff related to Yenna that the caller referred to Neff’s predecessor
as a “faggot.” After Yenna objected to Neff’s use of the word, Neff asserted his
ability to say the word by repeating the epithet. Neff used this epithet knowing
that Yenna identified as part of the LGBTQ+ community.
The Wapello County Attorney’s Office has a policy that prohibits sexual
harassment and retaliation against reporters of sexual harassment. Under the
policy, an employee can file a complaint with the county auditor, the county
attorney, or the county board of supervisors. Staff members were aware of the
policy. Yenna availed herself of the policy on a prior occasion and filed a
complaint against a female employee in the office.
No employee ever filed a complaint against Neff for violating the sexual
harassment policy, but Neff conceded Yenna informed him that his comments in
the workplace were inappropriate. The parties stipulated that Neff had
attempted, not always successfully, to address these issues. The parties
stipulated that Yenna and Schoemaker left their employment with the Wapello County Attorney’s Office, in part, due to Neff’s comments.
Based on this stipulated record, the grievance commission found the
Board proved a violation of Iowa Rule of Professional Conduct 32:8.4(g). In
determining the appropriate sanction, the commission identified several
aggravating factors: Neff was an elected official, he held power over those in his
office, and his actions, in part, caused others to leave their employment. The
commission also found several mitigating factors: Neff’s cooperation with the
disciplinary process, his lack of prior discipline, his dedication to public and community service, and his favorable character references. The commission 5
recommended Neff’s license be suspended for sixty days. Neff timely filed this
appeal.
II.
“Avoidance of constitutional issues except when necessary for proper
disposition of [a] controversy is a bulwark of American jurisprudence.” Salsbury
Lab’ys. v. Iowa Dep’t of Env’t Quality, 276 N.W.2d 830, 837 (Iowa 1979); see
LSCP, LLLP v. Kay-Decker, 861 N.W.2d 846, 867 (Iowa 2015) (“[C]ourts have a
duty to avoid constitutional questions when [the] merits of a case may be fairly
decided without facing such questions.” (alterations in original) (quoting
Moorman Mfg. Co. v. Bair, 254 N.W.2d 737, 749 (Iowa 1977) (en banc))). Thus,
while Neff raises a constitutional challenge to rule 32:8.4(g), we begin with Neff’s
contention that the Board failed to prove a violation of the rule. If the Board failed
to prove a violation of the rule, then we need not address Neff’s constitutional
challenge to the rule.
“We review attorney disciplinary proceedings de novo.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Stansberry, 922 N.W.2d 591, 593 (Iowa 2019). “The Board has
the burden of proving ethical misconduct of the attorney by a convincing
preponderance of the evidence.” Id. This burden is greater than the preponderance standard required in civil cases but less than the reasonable
doubt standard in criminal cases. Id. Where the parties stipulate to the facts, we
review them “with reference to their subject matter and in light of the
surrounding circumstances and the whole record.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Nine, 920 N.W.2d 825, 828 (Iowa 2018) (quoting Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777 (Iowa 2016)).
Iowa Rule of Professional Conduct 32:8.4(g) provides that “[i]t is
professional misconduct for a lawyer to . . . engage in sexual harassment or other unlawful discrimination in the practice of law or knowingly permit staff or agents
subject to the lawyer’s direction and control to do so.” The rule applies outside 6
the attorney–client relationship. The text of the rule “makes it clear that the rule
may be violated even if there is no attorney–client relationship between the
lawyer and the person subject to sexual harassment, as long as the attorney is
engaged in the practice of law.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Moothart,
860 N.W.2d 598, 603 (Iowa 2015). The rule “may be violated if a lawyer sexually
harasses witnesses, court personnel, law partners, law-office employees, or other
third parties that come into contact with a lawyer engaged in the practice of law.”
Id.
Sexual harassment as used in the rule includes “sexual advances,
requests for sexual favors, and other verbal and physical conduct of a sexual
nature” that have no legitimate place in the practice of law. Iowa Sup. Ct. Bd. of
Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999) (en banc)
(quoting Sexual Harassment, Black’s Law Dictionary 1375 (6th ed. 1990)); accord
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Newport, 955 N.W.2d 176, 182 (Iowa 2021);
Moothart, 860 N.W.2d at 604. Our cases have discussed distinct types of sexual
harassment. One category involves “come-ons.” Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Watkins, 944 N.W.2d 881, 887 (Iowa 2020). These include “any physical
or verbal act of a sexual nature that has no legitimate place in a legal setting.” Id. (quoting Stansberry, 922 N.W.2d at 597). More recently, this court stated that
sexual harassment also includes sex-based put-downs. See id. at 887–88.
Examples include “ ‘woman bashing’ jokes, insults about [women’s]
incompetence, the irrelevance or sexual unattractiveness of older women, and
comments that women have no place in certain kinds of jobs . . . referring to
women by degraded names for body parts, pornographic images, [and] crude
comments about female sexuality or sexual activity.” Id. (alterations in original)
(citation omitted) (quoting Louise F. Fitzgerald & Lilia M. Cortina, Sexual Harassment in Work Organizations: A View From the Twenty-First Century, in 1
APA Handbook of Psychology of Women 7 (Cheryl B. Travis & Jacquelyn W. 7
White, eds., 2018)). This form of harassment “does not require an individual
woman to serve as its target or unwanted sexual overtures, nor does it need to
be explicitly linked to any job or consideration.” Id.
This court has applied rule 32:8.4(g) in a variety of circumstances. In Iowa
Supreme Court Board of Professional Ethics v. Steffes, an attorney “took
photographs of his partially-clothed client under the pretext of documenting her
back injury.” 588 N.W.2d at 122. Steffes told the client that they should take
pictures of her “back so they could be used to demonstrate to the jury where her
pain was.” Id. While in his office, Steffes convinced the client to expose her back
and unhook her bra. Id. at 123. While the client was in a state of partial undress,
“Steffes walked over to her and pulled her shorts and underwear down to her
knees, and then stepped back to take the pictures.” Id. He said the pictures
would be helpful because the client had a “nice body.” Id. We had little trouble
concluding that Steffes violated the rule. We reasoned that “Steffes’s act of
photographing his partially-clothed client under the pretext that the
photographs would document her back injury and/or favorably impress male
jurors in her criminal trial constitutes physical conduct of a sexual nature.” Id.
at 124–25. Given that there was “no relationship between the frontal photograph showing his client’s exposed breasts and pubic area, and a purported
documentation of her back injury,” we concluded that “the photographs were
sexual in nature, taken to satisfy Steffes’s own prurient interests” and so
constituted sexual harassment. Id. at 125. We suspended Steffes’s license for
two years. Id.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Furlong,
we suspended an attorney’s license for eighteen months for inappropriate
conduct with two clients. 625 N.W.2d 711, 713–14 (Iowa 2001) (en banc). With respect to the first client, on the day her dissolution decree was final, the attorney
gave her “an uninvited kiss while they were at the courthouse during which he 8
inserted his tongue into her mouth.” Id. at 712. Later that day, at the attorney’s
office, the attorney told the client that “she was beautiful, placed his hand inside
her underclothing, and digitally penetrated her vagina.” Id. The lawyer later had
sex with the client. Id. We concluded this violated the rule prohibiting lawyers
from having sexual relationships with clients. Id. at 713. The second client
testified that when she was in the lawyer’s “office he perpetually ogled her and
would attempt to rub her back and shoulders while calling her a ‘pretty little
thing.’ ” Id. at 712. She also testified the lawyer “placed his hands on her back
and shoulders.” Id. We found this conduct violated the rule against sexual
harassment. Id. at 713.
In Iowa Supreme Court Attorney Disciplinary Board v. Moothart, we
suspended an attorney for thirty months for, among other things, sexual
harassment of four female clients. 860 N.W.2d at 618. The attorney plied a
twenty-two-year-old client with alcoholic drinks to the point of her intoxication,
convinced her to expose her breasts, and then sat on a couch with her in a dark
room in a sexually provocative position while making sexual suggestions. Id. at
608. We explained Moothart could not escape culpability on the ground the client
“did not expressly object” to Moothart’s sexual advances. Id. at 609. The attorney kissed the second client, did other “stuff” with her in a courthouse conference
room, and later had sex with her. Id. We concluded this “unwanted sexual
contact” constituted sexual harassment. Id. at 611. Moothart engaged in similar
conduct with respect to a third client. Id. at 612. He commented on her breasts,
successfully requested she flash her breasts to him, and had her perform oral
sex on him in exchange for $100. Id. at 612–13. We concluded this conduct
constituted sexual advances, requests for sexual favors, and other physical
conduct of a sexual nature in violation of the rule. Id. at 613. The attorney subjected a fourth client to explicit quid pro quo sexual harassment. Id. He asked 9
this client to pull her shirt down and explained that the cost of services would
depend on how much cleavage the client exposed. Id.
This attorney also committed workplace sexual harassment with respect
to his legal secretary. Id. at 614. She testified Moothart “comment[ed] about her
weight and how her body looked in different outfits, about her breasts, and about
other aspects of her body” and “also asked her to perform lap dances and taped
a $20 bill to the back of a cabinet door and said she was free to take it if she
danced naked on the conference room table.” Id. He also grabbed her breast, told
her they should order a sex toy for use while having sex, looked up her skirt and
commented on her underwear, and regularly made “comments about female
clients’ breasts.” Id. We concluded Moothart violated rule 32:8.4(g) by “injecting
sexual commentary into the workplace.” Id.
The attorney in Iowa Supreme Court Attorney Disciplinary Board v.
Stansberry committed severe invasions of his female colleagues’ privacy for the
sake of his own sexual gratification. 922 N.W.2d at 593. Specifically, “[t]he
attorney stole a woman colleague’s underpants from her home, rifled through
and photographed her undergarments in her bedroom, and rifled through female
colleagues’ gym bags at the office to photograph their undergarments, all for his personal sexual gratification.” Id. We concluded that “taking photographs of their
intimate items and stealing underpants for his own sexual gratification” violated
rule 32:8.4(g). Id. at 597. We suspended the attorney’s license for one year. Id.
at 601.
Iowa Supreme Court Attorney Disciplinary Board v. Watkins involved the
conduct of an elected county attorney in the workplace. 944 N.W.2d at 884.
Watkins’s behavior “virtually ran the whole gamut” of putdowns, come-ons,
degrading comments, and conduct and statements of a sexual nature. Id. at 888. He appeared in front of his staff in his boxer briefs. Id. at 885. He kept a nude
image of his wife on his computer. Id. at 885–86. He showed a picture of his 10
wife’s vagina, which he kept on his cell phone, and showed a video of his wife
squirting breast milk. Id. He made statements about sex in the workplace,
including stating that he just wished he had a wife who had sex with him all the
time. Id. at 888. He commented on women’s bodies, stating he would not want
to see one woman naked, stating that he wanted to know whether a courthouse
employee wore a padded bra or had really big boobs, and told an employee that
her “boobs [were] distracting him.” Id. at 885 (alteration in original). He asked
the same employee whether “her vagina was still broke” after she missed work
for a gynecology appointment. Id. He also referred to a local attorney as
“T. Queef,” a term which describes the emission of air from the vagina. Id. We
noted that in a different proceeding to remove Watkins from office, the district
court found “Watkins’s inappropriate conduct was pervasive and existed over a
significant period of time.” Id. at 886. We concluded Watkins’s inappropriate,
pervasive, and explicit sexual conduct violated rule 32:8.4(g) and suspended his
license for six months. Id. at 894.
Most recently, in Iowa Supreme Court Attorney Disciplinary Board v.
Newport, we concluded that an attorney sexually harassed two clients.
955 N.W.2d at 182. Among other things, he discussed a medical procedure that made it difficult to get an erection, and he discussed the color of his pubic hair.
Id. at 179. After reaching a settlement in the case, Newport said to one client
over the phone, “Deal’s done, drop your clothes off, and you can give me a blow
job.” Id. With respect to the second client, Newport proposed a quid pro quo
sexual arrangement for his legal services. Id. at 181. We found that “Newport
made repeated, harassing comments of a sexual nature.” Id. at 183 n.5. We
suspended his license for one year. See id. at 186.
We have little trouble concluding the Board proved Neff violated rule 32:8.4(g) as interpreted and applied in these precedents. This case is most
similar to Watkins. As in Watkins, Neff interjected comments of a sexual nature 11
into the workplace. He made hyperbolic statements wishing prison rape and
animal rape on criminal defendants. Those statements had no “legitimate place
in a legal setting.” Stansberry, 922 N.W.2d at 597 (quoting Moothart, 860 N.W.2d
at 604). Neff’s statements regarding criminal defendants were particularly
egregious because a prosecutor’s duty is “to do justice, not only for the accusers,
but also for the accused.” State v. Iowa Dist. Ct., 568 N.W.2d 505, 508 (Iowa
1997) (en banc). 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. He “occasionally” called some judges “bitches,” and he called a
male judge a “limp dick.” Neff told inappropriate stories about a man’s penis
falling out of his pajamas. He made jokes with sexual innuendo. He used the
word “faggot” in a conversation with Yenna and repeated the word to her face
after her objection. See, e.g., People v. Abrams, 459 P.3d 1228, 1239–41 (Colo.
O.P.D.J. 2020) (holding that use of the words “faggot” and “homo” were in
violation of a similar provision of Colorado’s rules). Neff’s employees informed
him of the impropriety of his statements, but he was not successful in changing
his conduct. Two of Neff’s employees resigned their employment with the county attorney’s office due, in part, to Neff’s statements and conduct in the workplace.
We cannot say that any one of these statements, standing alone, would be
sufficient evidence to violate rule 32:8.4(g), but Neff’s conduct, when taken as a
whole, objectively interfered with and caused harm in the workplace. While Neff’s
conduct is not as severe as pervasive or as explicitly sexual as that in Watkins,
that distinction makes this case only lesser in degree but not different in kind.
We thus conclude that the Board proved Neff violated rule 32:8.4(g).
III. Neff contends that sanctioning him for violating rule 32:8.4(g) violates his
right to free speech as protected by the First Amendment to the United States 12
Constitution. He makes an as-applied challenge and a facial-overbreadth
challenge to the rule. “[A]n ‘as applied’ challenge is a claim that the operation of
a statute is unconstitutional in a particular case while a facial challenge
indicates that the statute may rarely or never be constitutionally applied.” Const.
Party of Pa. v. Cortes, 824 F.3d 386, 394 (3d Cir. 2016) (quoting 16 C.J.S.
Constitutional Law § 243). For the reasons expressed below, we disagree with
both arguments.
A.
The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment is
applicable to the states via incorporation under the Fourteenth Amendment. See
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). As the licensing authority for
attorneys in this state, this court’s ability to revoke, suspend, or otherwise
sanction an attorney is “necessarily constrained by the First Amendment.” Iowa
Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380 (2001)
(en banc) (quoting Peel v. Att’y Registration & Disciplinary Comm’n, 496 U.S. 91,
108 (1990)); see also Iowa Sup. Ct. Att’y Disciplinary Bd. v. Att’y Doe No. 792, 878
N.W.2d 189, 194 (Iowa 2016) (stating in attorney disciplinary case we “analyze whether the statement is entitled to First Amendment protection”); Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 80 (Iowa 2008). Yet,
“ ‘[m]embership in the bar is a privilege burdened with conditions,’ to use the
oft-repeated statement of [Justice] Cardozo,” including First Amendment rights.
Gentile v. State Bar of Nev., 501 U.S. 1030, 1062–63 (1991) (quoting In re Rouss,
116 N.E. 782, 783 (N.Y. 1917)). In that context, we “engage[] in a balancing
process, weighing the State’s interest in the regulation of a specialized profession
against a lawyer’s First Amendment interest in the kind of speech that was at issue.” Id. at 1073. 13
B.
We first address Neff’s as-applied challenge to rule 32:8.4(g). There is no
doubt that preventing sexual harassment and discrimination “is not only a
legitimate, but a compelling, government interest.” Saxe v. State Coll. Area Sch.
Dist., 240 F.3d 200, 209 (3d Cir. 2001). This court, as the state entity with the
power to license and sanction attorneys, certainly has a compelling interest in
ensuring that lawyers do not engage in sexual harassment in the practice of law.
This includes the sexual harassment of clients, “witnesses, court personnel, law
partners, law-office employees, or other third parties that come into contact with
a lawyer engaged in the practice of law.” Moothart, 860 N.W.2d at 603.
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. Under the Supreme Court’s precedents, the
government does not have an interest in regulating speech solely because of its
offensive content. See Matal v. Tam, 582 U.S. 218, 223 (2017) (“Speech may not
be banned on the ground that it expresses ideas that offend.”); Texas v. Johnson,
491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”). Even
where the speech actually offends a listener, punishing such speech “would be
inconsistent with ‘[the Supreme Court’s] longstanding refusal to [punish speech]
because the speech in question may have an adverse emotional impact on the
audience.’ ” Boos v. Barry, 485 U.S. 312, 322 (1988) (second alteration in
original) (quoting Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55 (1988)). “The
emotive impact of speech on its audience is not a ‘secondary effect’ ” that can be
constitutionally regulated under the First Amendment. R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992) (quoting Boos, 485 U.S. at 321). This limiting principle
applies to laws prohibiting sexual harassment, including rule 32:8.4(g). “There 14
is no categorical ‘harassment exception’ to the First Amendment’s free speech
clause.” Saxe, 240 F.3d at 204; see also DeJohn v. Temple Univ., 537 F.3d 301,
316 (3d Cir. 2008) (stating there is “no categorical rule that divests ‘harassing’
speech as defined by federal anti-discrimination statutes, of First Amendment
protection” (quoting Saxe, 240 F.3d at 204)).
Courts have explored the tension between the government’s interest in
eliminating sexual harassment and the First Amendment right to free speech in
different contexts. Title VII, prohibiting sexual harassment in the workplace,
“has always had an uneasy coexistence with the First Amendment.” Yelling v.
St. Vincent’s Health Sys., 82 F.4th 1329, 1344 (11th Cir. 2023) (per curiam)
(Brasher, J., concurring). “It is no use to deny or minimize this problem because,
when Title VII is applied to sexual harassment claims founded solely on verbal
insults, pictorial or literary matter, the statute imposes content-based,
viewpoint-discriminatory restrictions on speech.” DeAngelis v. El Paso Mun.
Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). Justice Thomas has
expressed the view that to uphold the constitutionality of content-based
antidiscrimination laws, such as Title VII, the Court “would have to substantially
modify [its] First Amendment jurisprudence.” Avis Rent A Car Sys., Inc. v. Aguilar, 529 U.S. 1138, 1141 (2000) (Thomas, J., dissenting from the denial of
certiorari).
In Saxe v. State College Area School District, then-Judge Alito explored this
tension in the context of a constitutional challenge to a school’s antiharassment
policy that prohibited “unwelcome verbal, written or physical conduct which
offends, denigrates or belittles an individual because” of their protected
characteristics. 240 F.3d at 202–03. “There is of course no question that
non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause
protects a wide variety of speech that listeners may consider deeply offensive 15
. . . .” Id. at 206. “When laws against harassment attempt to regulate oral or
written expression on such topics, however detestable the views expressed may
be, we cannot turn a blind eye to the First Amendment implications.” Id. “[A]
disparaging comment directed at an individual’s sex . . . has the potential to
create an ‘hostile environment’—and thus come within the ambit of
anti-discrimination laws—precisely because of its sensitive subject matter and
because of the odious viewpoint it expresses.” Id. Then-Judge Alito rejected the
district court’s view that “ ‘harassment’—at least when it consists of speech
targeted solely on the basis of its expressive content—‘has never been considered
to be protected activity under the First Amendment.’ ” Id. at 209. He concluded
that “[s]uch a categorical rule is without precedent in the decisions of the
Supreme Court . . . , and it belies the very real tension between anti-harassment
laws and the Constitution’s guarantee of freedom of speech.” Id.
Although there is a tension between this court’s interest in prohibiting
sexual harassment in the practice of law where the alleged harassment consists
solely of expressive speech and an attorney’s right to free speech as protected
under current First Amendment doctrine, that tension is not insoluble. We think
the constitutional protection afforded speech can be satisfied in the attorney disciplinary context by requiring a showing the nonexpressive impact of the
speech resulted in objective harm beyond mere “adverse emotional impact on the
audience.” Boos, 485 U.S. at 322 (quoting Hustler Mag., 485 U.S. at 55).
Objective harm is measured from the viewpoint of a reasonable person and not
based on mere subjective offense of the listener. This court has incorporated a
similar standard into other disciplinary rules regulating attorney speech. See,
e.g., Attorney Doe No. 792, 878 N.W.2d at 194 (explaining that to avoid
constitutional concerns we adopted “an objective standard for assessing criticisms of judicial officers made by attorneys”); Weaver, 750 N.W.2d at 82
(applying “an objective standard in cases involving criticism of judicial officers”); 16
Visser, 629 N.W.2d at 382 (requiring an objective determination that statements
were “reasonably likely to affect the fairness of the proceedings”). And we think
a similar standard is inherent in rule 32:8.4(g).
The requirement that there be an objective assessment of harm is
“designed to play a crucial, mediating role in the effort to accommodate equality
and dignitary interests without trampling on free speech values.” Richard H.
Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog
That Didn’t Bark, 1994 Sup. Ct. Rev. 1, 44 (1994). The objective harm
requirement functions “as a constitutionally mandated limitation on”
antiharassment laws, id. at 45, because “[a]nti-harassment measures cannot
target ‘pure speech,’ ” Perlot v. Green, 609 F. Supp.3d 1106, 1120 (D. Idaho
2022). In the absence of requiring some evidence of objective harm, rule 32:8.4(g)
could veer toward the unconstitutional punishment of speech based solely on
punishing disfavored viewpoints. See Saxe, 240 F.3d at 206 (“ ‘Where pure
expression is involved,’ anti-discrimination law ‘steers into the territory of the
First Amendment.’ ” (quoting DeAngelis, 51 F.3d at 596)); Eugene Volokh,
Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1828
(1992) (“But at least some of the speech that harassment law suppresses is suppressed precisely because of its point of view; saying that women make bad
policemen can give rise to liability, but saying that men and women should be
treated equally cannot.”).
The Indiana Supreme Court applied a similar objective harm standard in
In re Brown, 703 N.E.2d 1041 (Ind. 1998) (per curiam). In that case, the court
suspended an attorney’s license for sexual harassment in the workplace. Id. at
1045. The court rejected the lawyer’s “faulty premise” that he could not be
punished if his conduct did not constitute sexual harassment as used in the employment law context. Id. at 1044. The court reasoned that “we do not need
to satisfy . . . any other agency’s legal definition of what constitutes ‘sexual 17
harassment’ to find that the respondent’s creation and perpetuation of a work
environment infected with inappropriate and unwelcome sexual advances
violated” the rules of professional conduct. Id. The court reasoned that it “need
only find that the ramifications of the respondent’s acts” degraded the work
atmosphere. Id. The court concluded that a violation was established and
sanction was warranted because “the respondent’s actions produced a work
atmosphere tainted with anxiety and stress” and “[t]he evidence also reveal[ed]
that some of his employees quit their jobs because of the respondent’s advances.”
Requiring a showing of objective harm is not a new concept in sexual
harassment law. For example, in the employment discrimination context,
liability can be imposed on a defendant for a hostile work environment only
where the expressive speech is “severe or pervasive enough to create an
objectively hostile or abusive work environment—an environment that a
reasonable person would find hostile or abusive.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993). Even in the employment law context, imposing liability
in the absence of some objective assessment of the nonexpressive impact of the
speech is in tension with and may violate the Supreme Court’s First Amendment jurisprudence. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703,
710 (9th Cir. 2010) (“Harassment law generally targets conduct, and it sweeps
in speech as harassment only when consistent with the First Amendment.”);
DeJohn, 537 F.3d at 317–18 (stating regulation of protected speech violates the
First Amendment “[a]bsent any requirement akin to a showing of severity or
pervasiveness—that is, a requirement that the conduct objectively and
subjectively creates a hostile environment or substantially interferes with an
individual’s work”); Caleb C. Wolanek, Discriminatory Lawyers in A Discriminatory Bar: Rule 8.4(g) of the Model Rules of Professional Responsibility, 18
40 Harv. J.L. & Pub. Pol’y 773, 782 (2017) (“By requiring severity or
pervasiveness, Title VII is more about conduct than words.”).
Our discussion of sexual harassment law in the employment context is
meant only to illustrate the constitutional necessity of requiring an objective
assessment of the nonexpressive impact of speech—beyond mere adverse
emotional impact or subjective offense—as a prerequisite for disciplinary
sanction. See Gentile, 501 U.S. at 1076 (affirming regulation of attorney speech
as narrowly tailored because the rule “applies only to speech that is substantially
likely to have a materially prejudicial effect” and that is “neutral as to points of
view”). Our discussion is not meant to incorporate employment law standards
into rule 32:8.4(g). We reiterate that sexual harassment in the workplace under
rule 32:8.4(g) may be predicated upon conduct or speech “that may not give rise
to civil liability” in the employment law context. Newport, 955 N.W.2d at 182.
What constitutes “ ‘sexual harassment’ in [our] attorney disciplinary cases is
broader than the employment standard under Title VII.” Watkins, 944 N.W.2d at
891; see also Moothart, 860 N.W.2d at 604 (“We have not required that the
harassment be ongoing or pervasive as has been required in some employment
contexts.”). Based on the foregoing, we cannot conclude that application of
rule 32:8.4(g) in this case runs afoul of the Supreme Court’s First Amendment
jurisprudence. We have already concluded the board established by a convincing
preponderance of the evidence that Neff violated rule 32:8.4(g). There is ample
evidence, even on this stipulated record, that Neff’s speech caused harm in the
workplace when viewed from the vantage point of a reasonable person. His
employees complained to him about his conduct, and Neff conceded that he had
not always successfully addressed those complaints. He said the word “faggot” in a conversation with Yenna. After she objected to his use of the word and told
him it offended her, he repeated the word to her face. See Abrams, 459 P.3d at 19
1239–41 (holding that use of the words “faggot” and “homo” were in violation of
similar provision of Colorado’s rules); People v. Saxon, 470 P.3d 927, 943 (Colo.
O.P.D.J. 2016) (stating “abusive or harmful communication may be punished in
a variety of contexts, both criminal and disciplinary”). In addition, Neff stipulated
that two employees in his ten-employee office resigned their employment due, in
part, to his conduct and statements. Cf. In re Brown, 703 N.E.2d at 1044. When
Neff’s conduct is viewed as a whole, there is sufficient objective harm to justify
disciplinary action against him without running afoul of the Supreme Court’s
First Amendment jurisprudence.
C.
We next address Neff’s facial-overbreadth challenge. “An overbreadth
challenge is unusual.” United States v. Hansen, 599 U.S. 762, 769 (2023).
Usually, “litigants mounting a facial challenge to a statute normally ‘must
establish that no set of circumstances exists under which the [statute] would be
valid.’ ” Id. (alteration in original) (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)). But “the overbreadth doctrine instructs a court to hold a statute
facially unconstitutional even though it has lawful applications, and even at the
behest of someone to whom the statute can be lawfully applied.” Id. The Supreme Court has “justified this doctrine on the ground that it provides breathing room
for free expression,” explaining that “[o]verbroad laws ‘may deter or “chill” ’
constitutionally protected speech,’ and if would-be speakers remain silent,
society will lose their contributions to the ‘marketplace of ideas.’ ” Id. at 769–70
(quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)).
To prevail on an overbreadth claim, the challenger to the rule must
establish the rule “ ‘prohibits a substantial amount of protected speech’ relative
to its ‘plainly legitimate sweep.’ ” Id. at 770 (quoting United States v. Williams, 553 U.S. 285, 292 (2008)); see Ams. for Prosperity Found. v. Bonta, 141 S. Ct.
2373, 2387 (2021) (“In the First Amendment context, however, we have 20
recognized ‘a second type of facial challenge, whereby a law may be invalidated
as overbroad if a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.’ ” (quoting United
States v. Stevens, 559 U.S. 460, 473 (2010))). “[A] law’s unconstitutional
applications must be realistic, not fanciful, and their number must be
substantially disproportionate to the statute’s lawful sweep.” Hansen, 599 U.S.
at 770. “The showing that a law punishes a ‘substantial’ amount of protected
free speech, ‘judged in relation to the statute’s plainly legitimate sweep,’ suffices
to invalidate all enforcement of that law, ‘until and unless a limiting construction
or partial invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression.’ ” Hicks, 539 U.S. at 118–19
(citation omitted) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613–15 (1973)).
“To judge whether a [rule] is overbroad, we must first determine what it
covers.” Hansen, 599 U.S. at 770. With respect to regulating attorneys in the
practice of law, the legitimate sweep of rule 32:8.4(g) is broad. The rule can be
applied to sanction an attorney for nonexpressive conduct constituting sexual
harassment because “nonexpressive conduct . . . does not implicate the First
Amendment at all.” Id. at 782; see also DeJohn, 537 F.3d at 316 (“[T]here is no question that non-expressive, physically harassing conduct is entirely outside
the ambit of the free speech clause . . . .”). For example, in Steffes we sanctioned
an attorney who “took photographs of his partially-clothed client under the
pretext of documenting her back injury” and who physically “pulled her shorts
and underwear down to her knees, and then stepped back to take the pictures.”
588 N.W.2d at 122, 123. In Furlong, we suspended an attorney’s license for
violating rule 32:8.4(g) when he “perpetually ogled” a client and “placed his
hands on her back and shoulders.” 625 N.W.2d at 712. In Moothart, we suspended an attorney for sexually harassing his clients and a female legal
secretary where he convinced two clients to expose their breasts to him, kissed 21
a different client, and grabbed his secretary’s breasts and looked up her skirt.
860 N.W.2d at 614.
Rule 32:8.4(g) can also be applied to quid pro quo sexual harassment,
which also does not implicate the First Amendment. For example, a lawyer’s
statement “ ‘sleep with me or you’re fired’ may be proscribed not on the ground
of any expressive idea that the statement communicates, but rather because it
facilitates the threat of discriminatory conduct.” Saxe, 240 F.3d at 208. “Despite
the purely verbal quality of such a threat, it surely is no more ‘speech’ for First
Amendment purposes than the robber’s demand ‘your money or your life.’ ” Id.
Thus, in Moothart we had little trouble disciplining an attorney who subjected a
client to explicit quid pro quo sexual harassment when he told her that the cost
of his services would depend on how much cleavage the client exposed to him.
860 N.W.2d at 613. In Newport, we disciplined an attorney who proposed a quid
pro quo sexual arrangement with his client—oral sex in exchange for legal
services. 955 N.W.2d at 179.
Rule 32:8.4(g) can also be applied without constitutional concern to
violations of the criminal law that also amount to sexual harassment within the
meaning of the rule. In Stansberry, an attorney “stole a woman colleague’s underpants from her home, rifled through and photographed her undergarments
in her bedroom, and rifled through female colleagues’ gym bags at the office to
photograph their undergarments, all for his personal sexual gratification.”
922 N.W.2d at 593. The attorney pleaded guilty to theft and criminal trespass.
Id. at 594. We concluded that “taking photographs of their intimate items and
stealing underpants for his own sexual gratification” violated rule 32:8.4(g). Id.
at 597.
Finally, as discussed above, rule 32:8.4(g) can be applied in accord with the Supreme Court’s First Amendment jurisprudence where the lawyer is being 22
sanctioned for causing harm in the practice of law beyond mere offense to the
content of his speech.
Neff acknowledges the constitutional applications of rule 32:8.4(g) but
argues the rule could also be applied to punish protected speech in violation of
the First Amendment in some circumstances. We do not necessarily disagree
with his contention, but that contention, standing alone, is not sufficient to
establish rule 32:8.4(g) is facially overbroad. Neff was required to establish that
rule 32:8.4(g)’s overbreadth is “substantial . . . relative to [its] plainly legitimate
sweep.” Williams, 553 U.S. at 292. He was required to show “from actual fact
that a substantial number of instances exist in which the [rule] cannot be applied
constitutionally.” N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988).
Neff failed to meet that burden of proving his overbreadth challenge.
Rule 32:8.4(g)’s prohibition of sexual harassment “has a wide legitimate reach
insofar as it applies to nonexpressive conduct,” unprotected speech, violations
of the criminal law, and to speech causing harm beyond mere offense to the
audience when viewed from the perspective of a reasonable person. Hansen,
599 U.S. at 784. Further, the rule only prohibits attorneys from engaging in
sexual harassment and other unlawful discrimination “in the practice of law.” Iowa R. of Prof’l Conduct 32:8.4(g). This limitation is significant because the rule
does not at all encompass an attorney’s conduct or speech outside the practice
of law. Neff failed to show from actual fact that “the ratio of unlawful-to-lawful
applications is . . . lopsided enough to justify the ‘strong medicine’ of facial
invalidation for overbreadth.” Hansen, 599 U.S. at 784; see, e.g., Rowles v.
Curators of Univ. of Mo., 983 F.3d 345, 358 (8th Cir. 2020) (affirming the
dismissal of an overbreadth challenge to the university’s sexual harassment
policy and explaining the challenger failed to show a substantial number of enforcement actions would involve protected speech). Neff “has not identified,
nor do we perceive, a broad swath of speech that would be impermissibly limited 23
by [rule 32:8.4(g)] such that the [r]ule risks chilling or penalizing protected
speech.” In re Abrams, 488 P.3d 1043, 1054 (Colo. 2021) (en banc).
D.
In Neff’s briefing on his First Amendment challenge, he also mentions that
rule 32:8.4(g) is unconstitutionally vague and thus void for vagueness. However,
a vagueness challenge arises under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution or article I, section 9 of the Iowa
Constitution. See Formaro v. Polk County, 773 N.W.2d 834, 840 (Iowa 2009). Neff
failed to cite either of these constitutional provisions in his briefing, and he failed
to meaningfully develop his vagueness challenge to rule 32:8.4(g). We conclude
Neff forfeited his constitutional vagueness challenge to the rule. See State v.
Jackson, ___ N.W.3d ___, ___, 2024 WL 1121676, at *9 (Iowa Mar. 26, 2024) (“A
party forfeits an issue on appeal when the party fails to make more than a
perfunctory argument in support of the issue.”).
IV.
Finally, we address the appropriate sanction in this case. “There is no
standard sanction for a particular type of misconduct, and though prior cases
can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case.” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Earley, 729 N.W.2d 437, 443 (Iowa 2007). “We do, however, seek a degree of
consistency in our disciplinary cases with respect to sanctions.” Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 268 (Iowa 2012). “In
determining an appropriate sanction, we consider ‘the nature of the violations,
the need for deterrence, protection of the public, maintenance of the reputation
of the Bar as a whole, and the violator’s fitness to continue to practice law,’ as
well as any aggravating and mitigating circumstances.” Earley, 729 N.W.2d at 443 (quoting Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Ramey,
639 N.W.2d 243, 245 (Iowa 2002)). 24
The Board argues there are aggravating factors here that warrant a
thirty-day suspension. The fact Neff was serving as a county attorney when the
conduct occurred is an aggravating consideration. See Watkins, 944 N.W.2d at
892 (“Lawyers holding public office assume legal responsibilities going beyond
those of other citizens. A lawyer’s abuse of public office can suggest an inability
to fulfill the professional role of a lawyer.” (quoting Iowa R. of Prof’l Conduct
32:8.4 cmt. [5])). There was also a power imbalance here, but not to the same
degree as in Watkins, where the primary target of harassment was “a young,
inexperienced legal assistant” and the respondent “abuse[d] his position of power
and authority over his female employees to denigrate their positions and their
very existence as women.” Id. Finally, the effect of the harassment on Yenna and
Schoemaker can be considered aggravating.
Neff argues that there are mitigating factors here and that a private
admonition is the appropriate sanction. We agree there are mitigating factors
present here. Neff has no prior disciplinary history. See Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Leitner, 998 N.W.2d 627, 647 (Iowa 2023). He has cooperated
in these proceedings. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Sobel,
997 N.W.2d 421, 434 (Iowa 2023). He has dedicated himself to public service in the State of Iowa. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Bergmann,
938 N.W.2d 16, 23 (Iowa 2020) (noting public service as a mitigating factor).
Nonetheless, we cannot agree that a private admonition is the appropriate
sanction.
This case differs from our prior cases in which we have suspended an
attorney’s license for violation of rule 32:8.4(g). This case does not involve sexual
touching of clients that warranted suspension in our prior cases. In Steffes, the
attorney “took photographs of his partially-clothed client under the pretext of documenting her back injury” and physically “pulled her shorts and underwear
down to her knees, and then stepped back to take the pictures.” 588 N.W.2d at 25
122, 123. In Furlong, the attorney gave one client “an uninvited kiss while they
were at the courthouse during which he inserted his tongue into her mouth.” Id.
at 712. The attorney also ogled and touched another client. Id. In Moothart, the
lawyer convinced clients to show him their breasts and had sexual contact with
other clients. 860 N.W.2d at 618.
This case also does not involve quid pro quo sexual harassment of clients
or explicit sexual advances toward employees. For example, in Moothart, the
lawyer told his client that the cost of his services would depend on how much
cleavage she exposed to him. Id. at 613. The same lawyer in Moothart also
harassed his legal secretary, made explicit sexual comments directed to her
about her body, asked her to perform a lap dance, grabbed her breasts, looked
up her skirt, and commented on her underwear. Id. at 614. And, in Newport, the
attorney requested oral sex in exchange for his legal services. 955 N.W.2d at 181.
This case does not involve criminal activity that also constituted sexual
harassment as in Stansberry. In that case, “[t]he attorney stole a woman
colleague’s underpants from her home, rifled through and photographed her
undergarments in her bedroom, and rifled through female colleagues’ gym bags
at the office to photograph their undergarments, all for his personal sexual gratification.” 922 N.W.2d at 593. We concluded that suspension was warranted
in that case.
This case is most similar to Watkins, but, as stated above, it is different in
degree than Watkins. Watkins “ran the whole gamut” of put-downs, come-ons,
and other sexually harassing conduct. Watkins, 944 N.W.2d at 888. Watkins
made crude, graphic comments to his female staff about specific female clients,
attorneys, and courthouse employees; showed naked pictures of his wife to
female staff; asked an employee a crude question about her vagina; and made off-color sexual jokes in front of his female staff. Id. Watkins also appeared before
a female employee wearing only his boxer briefs. Id. His conduct led to a formal 26
complaint before the county board of supervisors and an effort to remove him as
county attorney. Id. at 886. In contrast, in this case, Neff made nine
inappropriate statements. His comments, generally, were not targeted toward
people in the office. No complaint has been lodged against him other than this
ethics complaint. Most of the female employees in his office stand by Neff and
view him favorably as a fair prosecutor and a good boss to work for.
On balance, we conclude that a public reprimand is the appropriate
sanction for Neff’s improper statements here. Neff should have realized that his
statements were outside the bounds expected of Iowa lawyers. Membership in
the bar is a privilege with conditions. See Gentile, 501 U.S. at 1062–63. One of
those conditions is that an attorney conduct himself with professionalism in the
workplace and not engage in conduct that constitutes sexual harassment, even
if the conduct falls short of that creating civil liability in the employment law
context. Neff failed to meet the standard of conduct required of Iowa lawyers,
and we publicly reprimand him for his violation of rule 32:8.4(g).
ATTORNEY REPRIMANDED. All justices concur except Christensen, C.J., and Mansfield, J., who take
no part.