Are Lawyers' Blogs Protected by the First Amendment? Why State Bar Regulation of Law Blogs As "Advertising" Would Be Elitist and Reductive
By JULIE HILDEN
|Monday, Oct. 16, 2006|
State bars from New York to California are now facing the question whether to expand their rules governing attorney advertising to encompass law firm blogs. (For most states, the State Bar is the regulatory agency for the state's lawyers, responsible for admitting attorneys to practice, disciplining them, and regulating the profession as a whole.)
Such proposals raise serious First Amendment issues. Especially troubling is one procedure considered by New York. Under this procedure, as described last month in the New York Sun, New York lawyers would be required to submit ads (and if blog postings count as ads, blog postings) to a disciplinary committee shortly after publication, and to label their entire blog, in large letters, "Attorney Advertisement."
It would be a grave mistake, however, for bars to begin equating blogs with advertisements, and treating them the same. Rules regulating attorney advertising are pernicious and elitist to begin with; they shouldn't be expanded. And characterizing blogs as merely advertising for the attorney who writes them is so reductive as to be absurd.
It's true that blogs written under law firm auspices may function to promote the writer and his firm, but they function in many other ways as well - and their myriad functions ought to take them out of the First Amendment category of "commercial speech," for which regulation is more liberally allowed.
Restricting Attorney Ads Is Anti-First Amendment
It wasn't so very long ago that the elite of the legal profession considered it bad form for attorneys to advertise at all.
In 1977, for instance, in Bates v. State Bar of Arizona, Arizona was still attempting to defend the following total blackout of attorney advertising before the U.S. Supreme Court:
A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.
Despite the breadth of this ban, the case before the Court was narrower: Arizona had enforced its blackout against advertising that simply stated the prices certain attorneys charged - despite the fact that the attorneys at issue were indubitably the good guys here, and one would think that bar rules ought to be geared toward rooting out the bad guys of the profession.
These lawyers, it seems, were veritable Boy Scouts: As Justice Blackmun pointed out in his opinion for the majority, the aim of the attorneys who wanted to advertise "was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid." To keep their fees low, they had to keep their volume high; hence, the need to advertise, and in particular, to advertise their prices. But Arizona's rule said they could not.
Fortunately, the Court saw Arizona's rule as the blatant First Amendment violation that it was. Indeed, Justice Blackmun, writing for the majority, described the decision as basically a no-brainer - following, he wrote, "a fortiori" from the Court's earlier decision in Virginia Pharmacy Board v. Virginia Consumer Council, invalidating a ban on pharmacists' advertising of prices.
Blackmun made short work of claims that Virginia Pharmacy Board did not apply because attorneys were different enough to be specially gagged. Arizona invoked, for example, the abstract needs to preserve attorney "professionalism" and "dignity"; Blackmun was rightly unpersuaded.
Nor did any of Arizona's supposed "economic" arguments convince Blackmun and those Justices who voted with him. (Some of these arguments should have prompted Arizona's attorney to wear a paper bag over his head at oral argument: In essence, one argument went like this: Advertising should be forbidden, because everyone would then save money -- by not having to pay for advertising. Talk about an argument that proves too much.)
In the end, the economic argument was plainly on the side of the attorneys, who simply wanted to meet demand with supply but were effectively prohibited from doing so by the gag Arizona had imposed on them.
Restricting Attorney Ads Is Elitist
The elitist origins of attorney advertising bans weren't lost on Justice Blackmun -- and may well have contributed to his ability to see arguments about "professionalism" and "dignity" as ultimately a thinly-veiled attempt to preserve distinctions of social class.
Blackmun pointed out that "the ban on advertising originated as a rule of etiquette and not as a rule of ethics." And he added that, "Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on 'trade' as unseemly." Blackmun made clear that America should not follow England's example: "In this day," he wrote, "we do not belittle the person who earns his living by the strength of his arm or the force of his mind." Though he wrote "in this day," it sure sounds like he meant "in this country."
It seems quite ironic that the same Justice, William Rehnquist, who dissented in both Virginia Board of Pharmacy and Bates, also decided to add four gold stripes to mimic the robe of the "Lord Chancellor" in a Gilbert and Sullivan comic opera dating from 1882. Taking off the gold stripes - and other pretensions - is exactly what America is all about. Blackmun saw it; Rehnquist refused to.
And so it should be with great trepidation that we consider any expansion of the already noxious bans on attorney advertising. Ultimately, these bans are predicated on arguments that the legal profession is somehow elite -- above mere "trade." After all, without the bans, it's not as if the legal profession would somehow be transformed into a Wild West: An already-existing state law background of common law torts, and criminal and civil statutes, would still punish crimes like fraud, whether they were accomplished through advertising or otherwise.
If Blogs Are "Marketing," So Is Virtually Everything Else a Lawyer Writes Or Says
Though any expansion of the attorney advertising rules would be a mistake, expanding the rules to cover blogging would be especially unfortunate. The Bates case invalidated a blackout on attorney advertising even while applying the relatively permissive "commercial speech" doctrine. Yet most law firms' blogs are filled with speech that is not, and should not be reduced to, "commercial speech." Thus, the normal, higher First Amendment standard ought to apply.
("Commercial speech" is less protected because it is seen as being at the fringes of the First Amendment, whereas political speech is seen as being at the Amendment's very core, because that speech is what enables the government and election system set up by the Constitution to function.)
Arguments that blogs are tantamount to advertising sweep far too broadly to be persuasive: If everything in a blog is effectively an ad for retaining the attorney's (or firm's) legal services, then why isn't everything in a newspaper effectively an ad for the newspaper's services - that is, for opting to subscribe?
Granted, newspapers typically separate outside advertising from editorials and news quite clearly. But aren't the editorials and news coverage effectively advertising a product too: the paper itself? Yet these parts of the paper, which typically discuss political issues, are unquestionably protected by the higher First Amendment standard.
The arguments equating blogs with advertising, in the end, are specious. Specious, too, is the attempt to reduce attorneys' motivations for blogging to purely pecuniary ones. These arguments sound a lot like the arguments that "open source" software, or Wikipedia, or blogging in general would never catch on because "everyone is motivated by money; no one will work for free." Thus, the argument follows, any attorney who blogs must be doing so solely because he thinks he'll generate more income for his practice.
Interestingly, this point of view seems to come from a special bias against blogs - perhaps due to their more informal, less scholarly tone. As attorney and blogger Martin Schwimmer noted in the New York Sun article, it's not as if blogs are unprecedented: "The blog is a marketing effort," Schwimmer admitted, "but it is in the traditional manner of lawyer advertisements -- lawyers give speeches, write articles, and lecture on the law." Surely no one would accuse a practitioner of writing, say, a Harvard Law Review Foreword, or speaking to the Federalist Society, simply to garner more business!
The happy truth about our species is that we aren't just motivated by money, and we do often work for free. We also give stuff away sometimes - like the lawyers in Bates who charged less than they could, and worked more than they had to, to keep their services affordable.
So why would an attorney write a blog on her law firm's site? The attorney might want, in part, to illuminate an area of law in order to make an intellectual and practical contribution for readers. She might want, in part, to give some guidance to those who she knows might have to muddle through that area without any lawyer, because they won't be able to afford one. She might want to show off to peers - which is no mortal sin. And she might want to use the blog as a form of self-policing - making sure she keeps current on new developments in her field because she's got to report them on the blog.
And yes, that lawyer also might want to court potential clients by showing off her acumen in a particular area of law. But is that so wrong? It simply contributes to clients' making an informed choice among attorneys.
Blogs Aid the Market for Lawyers' Services, Which Is Woefully Inefficient
With most people still stuck relying on personal referrals to find a lawyer, states should be welcoming - not threatening to crack down on - lawyer blogs.
Before blogs, all one could glean about a lawyer - beyond information from informal gossip networks and personal recommendations - would typically be which schools the lawyer attended, which clerkships he had, and the like. (I'm still waiting to see a site pop up on the Internet that compiles comments by clients on particular lawyers. Though such a site doubtless would draw numerous suits, they'd be easy to defend: The defamation immunity of the Communications Decency Act, which I discussed in a prior column, would offer strong protection.)
Blogs allow a potential client to, in effect, listen to his potential lawyer think legal issues out. It's hard to conceive of a more substantive, less elitist way to choose an attorney than this: Not on credentials or connections, but on sheer merit in one of the skills that matters most.
For clients to actually, in a sense, overhear lawyers think provides them with an invaluable opportunity. Indeed, for those who still cling to the idea that law is somehow "above trade," it shows off the only aspect of the profession that really does, arguably, make it special: The law's ideal is to let the best thinkers, and the best arguments, win.
If we want the best arguments to win in court, why shouldn't we let the best bloggers win clients, too? State bars should affirmatively encourage legal blogs, rather than chilling them by regulating them as if they were no more significant than a banner on the back of a bus.