Professor Larry Ribstein posts at Point of Law that he has authored a legal opinion letter for the Washington Legal Foundation that considers the issue of whether New York's proposed changes to the lawyer advertising rules may force a reconsideration of the scope of the constitutional doctrine relating to the protection commercial speech.
The letter can be found here.
As he explains in the letter, commercial speech is entitled to a lower level of constitutional protection and may be regulated if the regulation is not misleading and promotes a substantial governmental interest. He then states that:
Blogs in general, and lawyer blogs in particular, pose a particularly challenging problem for the commercial speech doctrine. Any blog by a practicing lawyer obviously promotes the lawyer’s skill and knowledge to some extent. At the same time, even the most blatantly self-promoting weblog may include both important ideas and valuable information about legal services that deserve constitutional protection. Blogs therefore illustrate the close connection between the “market for goods and the market for ideas” that led Nobel Prize-winning economist Ronald Coase to question limiting constitutional protection for commercial speech...
Blogs are also distinguishable from other commercial speech in that they involve more self expression than typical advertising. This is important because the Court suggested in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. that one reason for giving less protection to commercial speech is that profit-motivated speech is less likely to be chilled by regulation. Under this rationale, a lawyer who needs advertising to promote her business is less likely to be deterred by, say, a filing requirement or risk of sanction than a lawyer whose blog is partly a hobby.
If the Court decides to confront the First Amendment issue in regulating lawyer blogs, and seeks to preserve the commercial speech category, it may try to distinguish blogs from advertising. The foregoing analysis suggests that the Court should consider the degree of interactivity the blog invites (for example, does it permit comments and trackbacks?), and the extent to which the lawyer uses the blog to express judgments and opinions.
On the other hand, the issue of whether to apply the First Amendment to blogs might finally persuade the Court of the futility of trying to distinguish commercial and non-commercial speech for First Amendment purposes, and to abandon the “commercial speech” doctrine. Such a move could have significant implications in many areas of business, particularly including securities, regulation...
Blogs present a significant new opportunity for regulators. At the same time, regulators should understand that they risk giving courts an opportunity to refashion the First Amendment into a more effective constraint on regulation of business speech.
It's an interesting issue, as is his analysis.
Let's hope it doesn't come to this and that the rules are modified to clearly exclude blogs. That being said, as I interpret the proposed rules they don't apply to blogs, in part due to my understanding that blogs are not intended to be covered by the rules based upon the response that I received at a seminar regarding the proposed rules that I attended in August.
During the seminar I raised my hand and asked the panel how the proposed rules and the definitions of "advertising" and "solicitation" were intended to affect lawyer blogs. I was advised that blogs were not the type of lawyer communications that they were attempting to regulate when they drafted the rules and that the definitions of "advertising" and "solicitation" were not intended to cover lawyer blogs. I was also told that they planned to tweak the definitions of "advertising" and "solicitation" based upon the comments that they had received thus far, prior to promulgating the rules.
So, I'm hopeful that come January 15th, the analysis provided by Professor Ribstein will be a moot point. Either way, I can essentially guarantee that any number of lawsuits will be filed that same day challenging the validity of the newly promulgated rules. And, rest assured, you can read about them right here at Sui Generis.