Free speech isn't without its limitations, lawyers know this, and when it comes to "
commercial speech" the United States Supreme Court has been happy to allow limitations on the free speech of attorneys and law firms when "commercial speech" is involved. Lawyers don't like being regulated, however, and there are attorneys blogging today who may think that their blog (blawg) isn't subject to state bar review when in fact, it is. Those bloggers (blawgers) are at risk of bar discipline.
Free speech protections provided by the federal constitution are not as broad for commercial speech as they are for other forms of free speech.
Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980);
Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). Advertisements are subject to governmental regulation.
This distinction between different kinds of speech is very important for lawyers who write blogs to remember.
Consider, for example, the concerns of the High Court in
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) where things like (1) the adverse effect on professionalism; (2) the inherently misleading nature of attorney advertising; (3) the adverse effect on the administration of justice; (4) the undesirable economic effects of advertising; (5) the adverse effect of advertising on the quality of service; and (6) the difficulties of enforcement were determined to be sound bases for regulating attorney advertising even though "advertising by attorneys may not be subjected to blanket suppression."
Bates, 433 U.S. at 368- 379, 383.
Of course, the
Bates opinion came down long before blogs popped up everywhere. Lawyer blogs are tricky things. There are firm-blogs, and individual lawyer blogs. Ones written for specific practice areas (e.g., appellate, real estate, or environmental law) are popular these days. You will find some blogs attached to law firm web sites (where they may be tools to boost the search result rankings of the firm's site) or you may find blogs as stand-alone publications (where they have their own separate domain).
Blogs and Free Speech: Commercial vs Political Speech
Twisted into all this complexity of law blogs ("blawgs") are the legal protections afforded to the particular blog under constitutional free speech protections. Not all blogs (blawgs) are the same, and not all blogs will be policed in the same way.
Commercial speech in a blog will allow the Bar to regulate and police that publication, just as the Bar regulates advertisements in the Yellow Pages, on the television screen, or in a standard firm web site.
If the blog basically serves an advertising purpose, then the state bar association that has jurisdiction over the lawyer or law firm responsible for that blog will argue it has a right to regulate that blog. Period.
When does a blog not have to conform to Bar regulation? When the blog publishes content that is protected as political free speech.
Political free speech isn't trying to sell the reader on hiring the lawyer or the law firm. Political speech essentially involves any “... interactive communication concerning political change.”
Meyer v. Grant, 486 U.S. 414 (1988). It's not trying to sell the reader on paying the author of the content for the author's goods or services, in other words.
What happens if there's a mishmash of the two within the blog?
Blogs published by lawyers may offer political speech, but all too often they are intertwined with commercial speech -- especially if the blog is attached to the firm web site. Whether or not the speech will be given free speech protection isn't as easy of a question to answer.
If one of the motivations for the blog is marketing the lawyer or law firm but it's not the only reason for the blog's publication, then what?
In
Bolger v.Youngs Drug Products Corp., 463 U.S. 60 (1983), the problem of mixed commercial and political speech in advertising was addressed. Lawyers cannot use political free speech posts to protect themselves from regulation:
Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.
Bolger, 463 U.S. at 68.
If the blog combines commercial speech with political speech, then it will not automatically achieve the constitutional protections that a blog devoted solely to political speech will have. Nevertheless, that combination of commercial speech with political speech may still rise to that level of constitutional protection if certain characteristics exist.
See, Bigelow v. Virginia, 421 U.S. 809,
818 (1975);
Board of Trustees of the State University of New York v. Fox,
492 U.S. 469, 474 (1989).
According to other precedent, we have a test:
....For commercial
speech to come within that provision, it at least
must concern lawful activity and not be
misleading. Next, we ask whether the asserted
governmental interest is substantial. If both
inquiries yield positive answers, we must
determine whether the regulation directly
advances the governmental interest asserted, and
whether it is not more extensive than is
necessary to serve that interest.
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447
U.S. 557, 566 (1980); Adams Outdoor Advertising v. City of
Newport News, 236 Va. 370, 383, 373 S.E.2d 917, 923 (1988).
Whether or not the reader may be misled means looking at the unsophisticated reader (
Bates) and the assumption is going to fall in favor of the potential that someone out there reading the blog posts may be misled -- think
Jethro Bodine as your potential reader when you're evaluating your publications.
The Bar Is Focused on Lawyers Misleading their Readers
The reason for bar regulation of lawyer advertising is to protect the public from being manipulated by lawyers marketing themselves in various formats: newspapers, television commercials, internet marketing, etc. It's true that there's a profit motive in lots of web sites that enjoy protected free speech: the local newspaper's web site, for example, is published by a company operating for a profit and yet its site content is under the First Amendment free speech umbrella.
State bars, however, are going to come down on the side of regulation of the site or blog. Consider your blog content and the design carefully.
Ask yourself this:
Would Jethro Bodine think you're selling yourself to him, even if your posts are careful not to market your practice or your firm directly? Does having your blog attached to your law firm web site suggest that the blog is a commercial tool to get him to call the firm for a free initial consultation? Does the design itself suggest commercial intent with things like 1-800 numbers in huge fontfaces in headings, footers, or margins?
If so, then you need to make sure that your blog (blawg) conforms to your state's advertising requirements (disclaimers, etc.) even if the majority of your content is political in nature.
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