Posts Tagged Commercial Speech Doctrine

Louisiana’s Regulation of Internet Speech By Attorneys Declared Unconstitutional

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules, Press Release, Speech Restrictions by Bars, Wolfe v LADB on August 4th, 2009

New Orleans, Louisiana (PRWEB) August 4, 2009 – On Monday, federal Judge Martin Feldman declared unconstitutional Louisiana’s new regulations of attorney advertising on the Internet.

Scott Wolfe Jr. and Wolfe Law Group, who practice construction law in New Orleans, Louisiana, challenged the new lawyer advertising regulations as they applied to the Internet. Wolfe argued the regulations failed to consider the differences between television and Internet advertising, and regulated Internet ads without a need.

“Louisiana didn’t have a reason to regulate Internet ads, and they didn’t understand how attorneys actually use the Internet to advertise,” Wolfe said. “As a result, the rules were incompatible with the realities of Internet advertising.”

The United States Louisiana Eastern District Court agreed, stating in its 39-page opinion that “the Internet presents unique issues related to advertising, which the State simply failed to consider in formulating this Rule.”

“This is a very important ruling,” Wolfe adds. “The court not only noted that states must have a reason to regulate Internet speech, but it also recognized that the Internet media is different from broadcast media, and is entitled to unique protection.”

Certain other components of the new Louisiana lawyer advertising regulations were upheld, including restrictions on ads that promise results, portray a judge or jury or contain a celebrity endorsement.

While these regulations were upheld, the court noted that the “same Rules as those developed for television, radio and print ads” could not be simply applied to Internet advertising. Judge Feldman based this on a finding that “Internet advertising differs significantly from advertising in traditional media.”

Wolfe, who advertises exclusively online, argued that if the rules took effect an attorney’s participation in legal blogs and social networking sites would be unreasonably restricted. Further, Wolfe argued that Google ad campaigns could costs thousands in administrative evaluation fees.

Wolfe’s lawsuit was filed in the United States Eastern District Court of Louisiana, docket number 08-4994. Read a copy of Judge Feldman’s order at JDSupra.   The plaintiffs were represented by Ernest Svenson of the Svenson Law Firm, and pro-se by Wolfe Law Group.

For additional information on the news that is the subject of this release, contact Jessica Reiser or visit Wolfe Law Group’s online media center: http://media.wolfelaw.com.

About Wolfe Law Group
Wolfe Law Group is a construction law practice with offices in Seattle, Washington and New Orleans, Louisiana. The firm publishes a blog on Louisiana and Washington construction law titled the Construction Law Montior, and prides itself on thinking different in the legal profession.

Contact
Jessica Hunter, director of public relations
504-894-9653
http://www.wolfelaw.com

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Attorney Sanctioned for Web-Post. Ethic or Free Speech Violation?

Posted by Scott Wolfe Jr in Speech Restrictions by Bars on January 3rd, 2009

In New Y0rk, an attorney was suspended for five years for committing a number of ethical violations. While there is no reason to defend the attorney’s misrepresentations or his trust account problems – what many consider troubling about the NY suspension is that the attorney was seemingly sanctioned for things he said about a judge on a web post.

A post on the Legal Profession Blog provides some revealing excerpts of the attorney’s web post. Further, it also has this quote from the sanctioning judge, concerning the web post:

Irrespective of the respondent’s sincerity in his beliefs, his overzealous behavior which took the form of disparaging remarks on the court, false accusations about Judge Amodeo disseminated in a public forum as part of a campaign to pressure the court into changing its rulings, and noncompliance with multiple court orders, truly constituted conduct prejudicial to the administration of justice.

While the attorney’s non-speech behavior may have qualified him for sanctions, its unfortunate that the NY Court even contemplates this web post criticizing a judge in determining whether to suspend a person from the practice of law.

Are courts and bar associations using ethical violations to control attorney speech?

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Do Louisiana Ad Rules “Ban Blogs?”

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules, Wolfe v LADB on November 28th, 2008

In response to our federal complaint, the lawyer blogging nation sent both their well-wishes and skepticism. We’ve also seen some welcomed press about our fight against the Louisiana State Bar Association’s new advertising rules, including an article from the ABA Journal (here) and the National Law Journal (here).

Unfortunately, however, there has been a bit of confusion about our complaint with the new advertising rules, and this brings me to the question of this post:

Do the Louisiana Advertising Rules “Ban Blogs?”

The short answer: No. The long answer: Well, blogs are implicated.

Rule 7.6(b) exempts a lawyer’s or law firm’s website from the costly evaluation process. A lawyer’s blog would therefore presumably be considered under the purview of 7.6(b), and not required to go through the evaluation process.

Websites and blogs (even if exempt from evaluation) will still be implicated by the new rules, as they are subject to the restrictive (and possibly unconstitutional in itself) Rule 7.2.

By exempting the law firm’s website, Louisiana skirted the issue of whether to specifically regulate lawyer blogs. But since 7.2 applies to blogs, it begs the question: Can the government regulate our blogs just as they regulate our “advertisements?”

A component of this blog’s purpose is to promote the idea that “blogging” and “advertising” do not go hand-in-hand, and that if the government is going to regulate both, it must at least distinguish between the two.

This important issue, however, will be addressed further on this blog, and through the proceeding itself.

Suffice to say for now, however, that the new advertising rules do not outright restrict an attorney’s ability to blog. Thus, the above-stated “short answer.”

So What’s The Real Problem?

Wolfe Law Group’s real complaint with the Louisiana lawyer advertising rules are two-fold:

1) The rules restrict attorneys from advertising through certain mediums, and specifically, through online media that limits character counts.

This argument concerns real red-blooded traditional advertisements. Since the new rules require certain information to be contained within every ad, they restrict or eliminate an attorney’s ability to communicate a message through Google Ads, Google Mobile Ads, and similar online advertisements, because the required information simply won’t fit.

2) Rule 7.6 (d) subjects all “computer-accessed communications concerning a lawyer’s or law firm’s services” to the evaluation process, and all advertising regulations.

In the Louisiana State Bar Association’s Handbook on Advertising, this is explained to include “all computer-accessed communications concerning a lawyer’s or law firm’s services, other than the Web site or home page of the lawyer or law firm.”

The implications of this rule is at the heart of the federal suit.

First, the definition of “advertisements” as all “computer-accessed communications concerning a lawyer’s or law firm’s services” is simply too broad, and it includes things that are not advertisements and – possibly – not commercial speech.

Second, 7.6(d) would seemingly apply to:

  • Comments by an attorney on the blog posts of others, on sites that are not owned by them;
  • “Answers” or legal information given to the public on sites such as Avvo or LawGuru;
  • Posts on micro-blogging platforms like Twitter, which includes information posted by an attorney on his or her own profile page, or possibly on the face of other users’ pages;
  • Participation by an attorney in podcasts, or online videos, wherein the discussion “concerns the lawyer’s services,” if that podcast or online video appears off the lawyer’s website;
  • “Guest Blogging;”
  • Posting of documents on services like JD Supra (incidentally, this could possibly be considered forbidding since it is an “advertisement” that “resembles a legal pleading” in violation of Rule 7.2(c)(K));
  • Facebook pages (and changes thereto), LinkedIn profiles (and changes thereto);
  • The appearance of your blog posts across the web on other websites via RSS feeds; etc.

Conclusion

The new Louisiana advertising rules do not “ban blogging.” However, the rules are so broad that they implicate an attorney’s right to freely speak about his or her trade, to participate in online social communities, and to communicate about his or her services though online media not “on the lawyer’s website.”

The attempt by Louisiana to equate “advertising” with “communicating about the lawyer’s or law firm’s services,” is stretching the U.S. Supreme Court’s commercial speech doctrines to include non-commercial speech by attorneys. And while the rules do not bar blogging per se, the rules do interfere with the blogger, and the blogger’s ability to harness the power of the Internet to communicate with clients, colleagues and the public.

Learn More
Learn more about the fight against the Louisiana State Bar Association by subscribing to this blog’s RSS Feed.

You can also read the Louisiana lawyer advertising rules at lsba.org here.

Download and read the filed complaint through the JD Supra service by clicking here.

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