Commercial speech conference: send lawyers, blogs and advertising

(With apologies to Warren Zevon.)

Anthony Ciolli, University of Pennsylvania (law student), Are Blogs Commercial Speech? Regulators have begun to look at blogs, but there’s considerable constitutional ambiguity. State bar associations (KY and NY) have proposed treating lawyer blogs as commercial speech. Lawyer blogs, they say, are primarily a means of advertising. A well-written and timely blog can certainly improve a lawyer’s prospects – there are even entire companies built around legal blogs as marketing tools. But attempts to call all lawyer blogs commercial speech have not been warmly received. Lawyers protest that their blogs are like law review articles and books, which are fully protected even though they may also confer professional benefits.

(Disclosure: Though my general stake in this issue is obvious, I have a specific interest: I am licensed in New York and thus the new New York rules apply to me. I believe that, though this blog constitutes fully protected noncommercial speech to which New York’s substantive rules could not constitutionally be applied, it is nonetheless in compliance with a proper application of those rules by disclosing my name and affiliation. I do note that New York’s rules as written apply to non-legal blogging by lawyers, and that I consider the rules entirely unconstitutional as applied to such blogging, especially as they purport to ban anonymous speech.)

Blogs that merely carry advertising (e.g. through Google’s AdSense), shouldn’t be considered commercial, though cross-promotion of legal services could be. Technological change, however, has often produced changes in legal standards, and that might happen here. Newspapers aren’t really proposing transactions when they run ads; they are conduits for ads paid a flat rate for circulation. Ads on blogs, by contrast, pay for performance. This causes many blogs to integrate ads with blog posts to encourage readers to click on links, or even integrate a partner Amazon link with a post about a book or other product. A court might be more likely to put such a blog in the commercial speech category. Given that some bloggers attempt to hide commercial connections, a minimum of disclosure rules might be a good idea.

James Lake, Thomas & LoCicero, Speaking Legally and Freely: Lawyers, Websites and the First Amendment. Lawyer advertising – or perhaps speech – on the internet makes the commercial/noncommercial divide very salient. Is anything a lawyer says on a webpage commercial speech? If it’s seeking clients, sure. Advertising our education and experience and noting that we provide legal representation are activities that serve our economic interests, and states have tended to treat such webpages like any other form of advertising – Iowa sanctioned a lawyer over a website claiming that “our firm’s scholarly achievements” were better than anyone else’s, and that the firm had obtained overwhelmingly favorable results in drunk driving cases. The fact that it was a website didn’t make a difference.

But we also use the internet to discuss developments in substantive areas of the law, post scholarly articles, etc. Much of that speech is calculated to impress existing and potential clients, but that’s not enough to make it commercial speech. Florida has applied disclosure requirements to websites, but without evidence that its requirements were insufficient, considered applying the same standards to websites as to TV or print ads, which would have banned statements about past results, testimonials, etc. The board also considered restricting access to law firm websites, such as with a password, to get to portions of a website that might have a lawyer’s resume. (What were they thinking?) This just ignores First Amendment interests.

Jay Bender, partner, Baker, Ravenel & Bender, South Carolina Attorney Advertising & Web Marketing Update. The South Carolina Supreme Court doesn’t much like lawyer advertising. The newest rules are from 2005, and hit all the problem areas defined by Central Hudson by limiting truthful and valuable speech, compelling speech in direct mail advertising, and taxing advertising by requiring every ad to be filed with the bar along with a $50 check. And to add insult to injury, they don’t even scrutinize the ads for truth, because that’s the attorney’s job. In a state that can’t compel people to use seatbelts in their cars, why can the court limit what truthful things we can say to people who might purchase our services?

The question is how much paternalism is constitutional. For years, it was illegal to advertise the price of eyeglasses in South Carolina. So, people would drive to Augusta, where price advertising was allowed and glasses were thus cheaper. For years, it was illegal to advertise the prices of milk. The political culture is willing to say that the government knows best.