According to Louisiana’s WWL news, social networking sites like Twitter and Facebook are starting to take off in the Louisiana legislature.

While probably good for the politicians and their constituents, those legislatures who are licensed attorneys may need to be concerned about the impending advertising regulations in Louisiana.

Rule 7.6(d) will require that all communications by an attorney, concerning a lawyer’s or law firm’s services, be subject to the advertising rules.   After a constitutional challenge to the provision, the Louisiana legislature added language to 7.6(d) also requiring that the communication be made “when a significant motive” is the lawyer’s pecuniary gain.

When analyzing a similar rule in New York, the A.C.L.U. warned as follows:

Even such fundamental examples of political speech as, for example, a lawyer’s letter to the editor of the New York Times criticizing Attorney General Alberto Gonzalez (a lawyer), or a lawyer candidate’s statement in a televised debate of his qualifications for office would be covered by the plain language of the proposed rules.  These forms of communication are made “by…a laywer…about a lawyer” and thus fall within the rules’ explicit scope.

Granted, the June 4, 2009 amended to Rule 7.6(d) qualifies that only communications where the speaker has a “significant motive” of pecuniary gain apply…but, what does that actually mean?

In the seminal Central Hudson case, Justice Stevens warned about linking financial motivation with the constitutional protection of speech, stating that “even Shakespeare may have been motivated by the prospect of pecuniary gain.”

Some may argue that the application of Rule 7.6 to legislators using Twitter is far-fetched, but is it really?  Could there not be a bar complaint made against a state representative for violating this rule just to muddy the waters during a campaign?   The representative may, by the wording of the rule, been in violation.

Perhaps this is why the US Supreme Court has ruled that even the potential application of a rule in such wide-ranging contexts risks a chill on protected speech, and is unconstitutional.  NAACP v. Button, 371 US 415, 432-33 (1963).

From the WWL TV article, it appears that Representative Walter Leger (D-New Orleans) started the Twitter movement at the state capital.    Mr. Leger is an attorney.   Let’s hope he either doesn’t talk about other attorneys on Twitter, or he has taken a vow of poverty.  Otherwise, Rule 7.6(d) may technically be problematic.