A Louisiana Law Firm Challenges, On First Amendment Grounds, State Bar Advertising Rules that May Affect Attorney Blogs: The Issues the Suit Raises, and Others that May Arise in the Future
By JULIE HILDEN
|Monday, Dec. 08, 2008|
Recently, a Louisiana law firm -- the Wolfe Law Group -- sued in federal district court in the Eastern District of Louisiana to challenge the state bar's new rules concerning attorney advertising. Fittingly, the firm also posted information concerning the suit on a Facebook page entitled "Blog No Evil" and created a blog in support of the suit entitled "Blogging Is Speaking."
With similar fights likely to be fought in every state, the suit has received nationwide attention, and rightly so. Unfortunately, however, because the rules in Louisiana display only the most minimal sensitivity to First Amendment issues - as I will explain -- the Wolfe Law Group runs the risk of winning in court, but only on narrow grounds. If so, that will mean more subtle, difficult issues will still need to be confronted in the future.
The Supreme Court Has Held that Lawyers Have a First Amendment Right to Advertise That State Bars Cannot Infringe
To begin, it's important to emphasize that state bar advertising rules may violate the First Amendment, as the Supreme Court's 1977 decision in Bates v. State Bar of Arizona -- which rejected a total blackout on attorney advertising -- made very clear. Even though a state bar is a strange quasi-governmental creature, the Court did not hesitate to hold in Bates that the First Amendment applied. (I discussed Bates at greater length in a prior column regarding bar regulation of lawyer blogging.)
In Bates, Justice Blackmun, writing for the majority, clearly conveyed that it was too late in the day to ban attorney advertising based on the classist stereotype that it is somehow unseemly for a professional to engage in practices associated with "trade." Instead, he embraced the more modern, sensible view that advertising is necessary to the legal profession, just as it is to so many others. Accordingly, one could see Bates as establishing a right to advertise, with cases like the Wolfe Law Group's testing how far that right extends.
The Thin Line Between Attorney Self-Advertising and Attorney Analysis of Law and Legal Politics
At the same time that it established attorneys' right to advertise, Bates also left the "commercial speech" doctrine intact - making no exception for professionals communicating with potential clients. Under that doctrine, commercial speech such as advertising does not enjoy as much First Amendment protection as "core" First Amendment speech such as political speech. Accordingly, after Bates, while there can be no question that attorney-advertising rules trigger First Amendment issues, it still can be argued that those rules deserve a lesser amount of First Amendment protection because they constitute advertising. In my view, however, that argument is dead wrong.
Indeed, one interesting aspect of the Wolfe Law Group's case is how it shows that the line between advertising and pure speech, in the context of attorneys' Internet postings, is quite thin and permeable. After all, an attorney's insightful posting on a legal blog such as the Volokh Conspiracy (or for that matter, on this website's commentary section) might win him or her clients and thus effectively function as advertising, even if that was not the attorney's intent. Indeed, in the law, the best advertising is a good argument. It is hard to believe, for example, that David Boies's famous Bush v. Gore argument did not lead him to win new clients or impress existing ones.
In sum, in this heavily speech-based profession, the line between advertising and other speech is perilously thin. So is the line between professional and political speech: If an attorney gets a client from writing perceptive analysis about the law and politics relating to Proposition 8, then his political speech, again, functioned as commercial advertising, whether or not he intended that would be the case. The "commercial speech" doctrine is singularly inapt in a profession where arguing is close cousin to advertising, and legal argument is close cousin to political argument.
The Louisiana Bar's System of Pre-Publication Review of Lawyer Advertising Is Especially Ill-Conceived
From these general considerations, let's proceed, too, to the specifics of the Louisiana case. Among the Louisiana rules the Wolfe Law Group challenges is one that requires lawyers to submit ads for review before they are published, and charges the attorney or firm $175 for that review. The firm's concern is that individual blog posts -- or even Twitter postings -- could be deemed ads. The rule specifically exempts the firm's own website or homepage, but not postings elsewhere - including on influential legal blogs.
This rule is completely tone-deaf from a First Amendment standpoint. It begins by imposing a prior restraint - which the First Amendment abhors. In the First Amendment context, the rule is that one may speak and risk damages - but not here. Blog postings can be newsworthy, and delay can be deadly; waiting for pre-publication review may mean there is no point in posting the blog entry at all. In other words, this isn't just a speech-slowing measure, it's a speech-killing measure.
Then, the rule imposes a fee disproportionately high enough that, if this were the contract context, would risk being an illegal penalty. The lion's share of ads (or blog posts that firms fear will be treated as ads) will be obviously innocuous, and thus will be able to be reviewed very quickly, costing very little money. Experienced attorneys will be able to quickly read ads that are plainly acceptable, and their fees for doing so will consume only a small portion of the overall fee the bar charges. As a result, this rule will predictably force First Amendment speakers to subsidize investigations into those few ads that are flirting with fraud. Imagine, by comparison, if newspaper readers submitting to the Letters to the Editor section were forced to pay a fee to cover the few among the letters that posed a serious libel risk.
The prior restraint aspect of the Louisiana rule should cause it to be struck down even with respect to commercial speech - pure advertisements that serve no other function. And it certainly should cause the rule to be struck down with respect to blog postings that can fairly be characterized as either advertising or commentary. Speech that is dual-purpose speech must be treated as if it belonged to the more-protected category; for example, consider episodes of the sitcom "30 Rock" that incorporate a lot of tongue-in-cheek but genuine product placement.
If the court does decide the case solely on the prior restraint issue, however, it will strike down the rule but still leave open the general questions surrounding attorney blogging that I described above - to be resolved in a future case.
If the Bar Must Assess Click-Through Ad Copy, It Should Include the Copy that the Reader Accesses After Clicking Through
Another rule at issue in the Wolfe Law Group's suit requires that ads include an attorney's name and the location of an office. The Wolfe Law Group says that this rule will inhibit its ability to effectively advertise on search engines, whose ads provide very limited space for text.
I believe this is a reasonable concern, for example, with Google Ads, which are brief enough that the required information could crowd out the message. Moreover, this is an area where self-policing should be enough. If the combination of a search-engine ad and the material one sees when one clicks through fails to sufficiently identify the firm, the ad won't bring in clients, and therefore will be changed by the firm itself.
The First Amendment claim here, however, will be tougher to win than the claim based on pre-publication review, because it is clearly constitutional to place some disclosure requirements upon commercial speech - and here, we really are talking about ads, not blog postings. Granted, this is an unusual disclosure requirement, where the required disclosures threaten to crowd out the speech itself and where they may force firms to forego an entire avenue of advertising. But if pure commercial speech is at issue, this still may be an uphill battle.
Even if the Wolfe Law Group does not win, however, the Louisiana bar should voluntarily change its rule, to require the disclosures in the ad itself or the click-through material. To do so would only recognize the reality that a reader who is interested in the firm is very likely to click through to learn more about it - and a reader who isn't, is not harmed by the lack of disclosure.
Across the Country, Bars Should Look with a Fresh Eye Upon Issues the Internet Raises, and Regulate Accordingly
Ultimately, I believe much of the Wolfe Law Group's frustration - and need for clarification - stems from the fact that it is being asked to comply with rules that were not written in such a way as to be nuanced to take into account the Internet context. State bars everywhere should take note: Unless they take a hard and truly fresh look at their advertising codes, they are very likely to face similar lawsuits. And with courts looking particularly askance at regulations of speech that are likely to produce a "chilling effect," if state bars do face such suits, they are likely to lose. Rewriting bar rules for the Internet era is thus the smart thing to do, as well as the right thing to do.