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Is the How Appealing Blog "Commercial Speech" and Thus Less Constitutionally Protected? How About This Blog?

In Stern v. Bluestone, a New York appellate court held that blast faxes from a plaintiffs'-side legal malpractice lawyer — sent to other lawyers — constituted commercial advertising.

Each "Attorney Malpractice Report" [fax] consists of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes include generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax is a box containing Bluestone's contact information, office address, telephone number, fax number and web site address. Another web site address appears at the top of the faxes....

The court plausibly reasoned that the faxes were commercial self-promotion on Bluestone's part (paragraph break added):

The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits.

Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.... Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services.

The court doesn't discuss in detail the fact that Bluestone is faxing lawyers and not the consumers who would typically use his services, but I take it that the response to that would be that he's trying to get lawyers to refer clients to him (since many lawyers don't know much about this sort of litigation, and would rightly refer their clients to specialists). And because the speech is treated as commercial advertising, the court concludes, it's covered by the federal ban on unsolicited commercial advertising via fax — though note that the legal consequence of this is that the speech is treated as falling within the "commercial speech" exception for all purposes, not just for the blast fax law.

Now there surely is something to the court's analysis: When lawyers and other professionals write about things they specialize, they're often implicitly trying to promote their services. And that's true of magazine articles, blogs, and other things as well as blast faxes. Young lawyers, I'm told, are often urged to write for bar publications precisely for this reason.

Yet if the court is right, then this suggests that lawyer-written blogs (such as the invaluable How Appealing), lawyer-written articles, and even lawyer-written treatises might qualify as "commercial speech," since they too "have the purpose and effect of influencing recipients to procure [the author's] services." (I give How Appealing just as a prominent and highly respected example of a blog that is written by a lawyer, and that I very much hope helps bring the lawyer business, or else I imagine he wouldn't be able to devote as much time to it as he does.)

Such blogs, articles, and treatises often "include the name of [the author's] law firm and contact information." They "indirectly advertise the commercial availability and quality of such services." They often "list ... web sites that boast [the author's] specialization." They "are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services."

"Moreover, [the author's] professional role as an attorney specializing in [whatever the blog, article, or treatise topic may be] supports the conclusion that the [blog, article, or treatise] advertise[s] his services." And if the author's "identity, motives, purposes, and intentions are relevant to whether the [work] was merely 'information' or 'advertising,'" that may often likewise cut against the blogger or article author, since the author's identity is as a practicing lawyer, and his motive will often in part be to get business.

And if the material is treated as "commercial speech," then the consequence isn't simply that it can't be sent as an unsolicited fax (something we law bloggers certainly don't do). Rather, we might well become strictly liable for any false statements we might post, rather than being protected by the "actual malice" test and the like. We would be punishable for any statements that the Bar might find to be "misleading." We could be required to post a wide range of government-compelled statements, which usually can't be required for nonadvertising media, but can be for advertisements. And the government might even be able to impose broader content-based restrictions on our speech, so long as the restrictions pass muster under the weaker Central Hudson test rather than the very demanding strict scrutiny test.

How can law bloggers and article writers distinguish themselves from Bluestone? Likely not based on motive; even if motive is relevant (the court here says it isn't, though later it cites a case suggesting that it may be), law bloggers and writers often have a mixed motive — spread knowledge and improve the legal profession, but also get more client inquiries and referrals — and law faxers might, too. It may well be that Andrew Bluestone not only likes to fight lawyer malpractice in court, but sincerely wishes that lawyers know better how to avoid malpractice, or how to spot possible malpractice causes of action against their clients' ex-lawyers. (A cynic might think that malpractice lawyers would like to see more malpractice, but many of them might figure that there'll be plenty for their business in any case, and surely many serious, decent professionals sincerely want a world with less malpractice.)

Perhaps the difference might be that Bluestone's faxes are brief and not terribly informative. But I'm not sure that's right — in fact, Bluestone does have a blog, and the entries in his Attorney Malpractice Report category strike me as having a good deal of substance. I can't speak to whether they're particularly original, helpful, or even accurate; nor am I positive that his faxes tracked these blog posts. But my sense from the opinion is that the fax items were pretty similar to the blog posts; and I'd hate to see a legal test under which a court would have to compare the relative value of Bluestone's posts and the relative value of my posts or Howard's posts or any other legal blogger's posts.

So it seems to me that the Stern decision is pretty troubling, and potentially dangerous to all lawyers who write about law, as well as to other professionals who do similar things — potential expert witnesses who write articles aimed at lawyers, doctors who write articles in the hope of building their name with the public or with other doctors who can provide referrals, and more. I'm not at all sure it's wrong under existing law, especially given Bolger v. Youngs Drug Products Corp. (1983), in which the Supreme Court held 8-1 (with only Justice Stevens taking a contrary view) that pamphlets by a drug company that promoted the benefits of condoms fell within the "commercial speech" zone of lower protection — even when they didn't mention the company's product by name. (This case goes a bit beyond Bolger; but not far.) But the decision does, I think, help illustrate the potential breadth of the "commercial speech" category under existing law, and helps show how a considerable amount of speech restriction — including restriction of valuable speech such as law blogs or professional articles — could be allowed under a broad reading of the commercial speech doctrine.

Note: I've spoken here of "commercial speech" in the First Amendment sense, which roughly means "express or implicit commercial advertising." For more on this definition, see here; suffice it to say that "commercial speech" doesn't mean "speech sold as an article of commerce" (such as a book, a newspaper, or a slogan on a T-shirt) or "speech about commerce"; it just means express or implicit advertising proposing a commercial transaction between the speaker (or his business partners) and the listener (or his business partners).

tvk:
Since law professors posting on VC engage in commercial practice only infrequently (I assume), you seem to be in little jeapordy. But there is an easy solution to avoid the blogging-is-advertising problem: blog anonymously. Now, I am certainly not advocating a world where free speech belongs only to law professors and the anonymous, but the problem does not seems as serious as you suggest.
2.6.2008 7:36pm
PersonFromPorlock:
Hm. Would a judge's published decisions be 'commercial speech'? After all, judges might be in the 'Judge Judy' job market someday.
2.6.2008 7:40pm
gregh (mail):
Sorry to be of a one-track mind here, but this is exactly the kind of thing I can see John McCain using as an excuse to begin regulating content on the internet. Sharply curtailing what you thought you could safely blog without the DOJ coming down on your heads would, I'm sure, help cut down on government corruption.
2.6.2008 7:44pm
gregh (mail):
Sorry, on the preception of government corruption
2.6.2008 7:45pm
alias:
Professor Volokh writes:

The court doesn't discuss in detail the fact that Bluestone is faxing lawyers and not the consumers who would typically use his services, but I take it that the response to that would be that he's trying to get lawyers to refer clients to him (since many lawyers don't know much about this sort of litigation, and would rightly refer their clients to specialists).


If the faxes are about legal malpractice, though, aren't lawyers precisely the "consumers who would typically use his services"?
2.6.2008 7:46pm
Eugene Volokh (www):
tvk: Even if we exclude those law professors who never practice or consult -- and I do practice and consult in some measure on the side -- and consider the anonymous speech option, the problem is indeed very serious.

First, I think the incentive of getting business as a result of one's fame is an important motivator for producing valuable speech (just as the payment of money is an important motivator; see N.Y. Crime Victims Bd. v. Simon &Schuster for a case holding that restrictions on speakers' being paid money are indeed constitutionally troublesome speech restrictions). The insight of copyright law, in fact, is that is precisely that the progress of knowledge is advanced by the offer of profit.

Second, the presence of an expert author's name is often important to readers, because it helps give them confidence in the reliability of the author's assertions. And even if the author is not a known expert, his use of his name makes his assertions more credible, because then he has something to lose if they're wrong (just as having the assertions be anonymous tends to make them less credible).
2.6.2008 7:46pm
RowerinVa (mail):
I disagree with you 100%, Eugene (that's a first). The better analogy would be whether the guy opened your door and shouted this information at you. Or, if you were faxing the VC blog to people and were in the business of getting paid directly by the recipients of the advertising, or their clients, it would be pretty clear you were advertising. If in contrast this fellow put the info on a blog and waited for folks to come to him, that would be quite different. The medium used makes all the difference.

More to the point, blast faxing is illegal under the junk fax law, 47 U.S.C. 227(b)(1)(C), which, incidentally, long predated the anti-spam-email laws. There are significant penalties associated with this: $500 per fax, treble damages for willfulness, etc. As there should be. As a result, junk faxers tend to try to disguise their advertisements as something within the statute's exemptions. This fellow appeared to be trying to disguise the ads but, in my opinion, that only proves that he knew what he was doing was at least vexatious and almost certainly a violation of federal law, either or both of which merits ethical sanction. So, to the bar authorities: good call. Pun intended.

This isn't a camel's nose or a slippery slope. Sometimes a fax is just a fax, and if you aren't requesting the fax it's almost certainly an ad!
2.6.2008 7:47pm
Dom:
Isn't the case against the sender of the faxes, who just happens to be the author of an article they contain?

What if a type designer typeset a lawyer's article in his new typeface and faxed it to design bureaus: surely the type designer, not the lawyer, would be engaging in commercial speech.
2.6.2008 7:59pm
Brian K (mail):
Eugene,

How much of the decision do you think rests on this claim: "It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services".

It seems to me a lot of the decision that the fax was commercial speech rested on the fact the fax directs attorneys to websites advertising and boasting about bluestone's services. Do you think the decision would have been different if these websites were not included and if, for example, he only included a commonly used business cover sheet that identified the sender of the fax?
2.6.2008 8:01pm
Eugene Volokh (www):
alias: Sorry, I'll revise the post to clarify this -- this guy is a plaintiff's malpractice lawyer.

RowerinVa: The court doesn't just say this is fax spam -- to say it, it has to conclude that the speech falls into the "commercial speech" exception.

Now if this could somehow be limited to unwanted mailings (as opposed to "put[ting] the info on a blog and waited for folks to come"), then the decision wouldn't be that troubling. But stuff on a blog (or in a magazine) can certainly be advertising; there are advertisements in these "push media" all the time. Likewise, stuff can be sent to you without being advertising (though it's often advertising-supported) -- consider a free local newspaper dropped on your front porch, which could have a good deal of nonadvertising editorial as well as the advertising that supports it. So the push/pull medium distinction can't influence whether the speech is "commercial speech," I think.

Now perhaps it should be OK to ban certain kinds of push material, whether it's faxes or newspapers or what have you, and whether or not it's advertising. But that's a separate issue -- the court here decided that the content of the faxes was "commercial speech," and that's a decision that can't just be limited to faxes.
2.6.2008 8:07pm
DiverDan (mail):
Eugene, I think you have completely missed the point of this case, which was brought under the Telephone Consumer Protection Act, and dealt with statutory penalties for unsolicited fax advertising. While the First Amendment certainly protects your right to free speech, it does not create a right to force someone else to listen to, or worse, pay for your speech. As a lawyer who pays for: (1) a Fax Machine; (2) a telephone line dedicated to the Fax Machine; (3) the toner cartridges necessary for the Fax Machine to keep printing; and (4) reams of paper to keep the machine fed, I think it ought to be up to me what faxes I receive (and thus pay for). I pay the costs of this Fax machine for business reasons, so I can receive Faxes from clients, opposing counsel and co-counsel, even Courts. Over the last 4-5 years, even well AFTER the various State and Federal laws creating statutory penalties and civil remedies for unsolicited fax advertising, I have received well over 5,000 junk faxes. I used to keep them, thinking that I would file suits against the bastards under the same statute, but I soon realized it was impossible to find &serve the fly-by night operators who do this, and I threw them away after collecting over 900 in a mere 7 months. These faxes advertise everythink from weekend trips to Cancun, expert witnesses, health insurance, penis enlargement creams, pills, and devices, and, yes, legal services. At 5,000 faxes, this would cost me: (1) one case of paper, about $35 at current prices; (2) approximately one-third of a toner cartridge (say another $30); (3) wear and tear on my $800 Fax machine; and (4) time to look at each fax to determine it was junk to throw it away (not to mention the extra janitorial costs, and extra landfill space needed). Frankly, $500 per unsolicited Fax is not enough - this was a lawfirm which willfully violated the law and imposed unecessary costs on others who had no desire to read, much less pay for, their fax advertising. The First Amendment has nothing to do with it - the First Amendment may protect my right to make commercial speech in an open forum, but when I start kidnapping people and forcing them to listen, or hold them up at gunpoint to get the money to pay for my stage, the First Amendment does not protect that activity.
2.6.2008 8:38pm
Fub:
I think Kavanaugh's dissent is well reasoned and draws the line properly at summary judgment:
Without a doubt, there may well be an incidental commercial benefit to defendant from the publication of these pieces - and that fact is obviously relevant in determining if under all of the circumstances the material in question is an advertisement as opposed to an noncommercial publication. However, this is a question that cannot be resolved as a matter of law on the facts as presented.
I also know that if I were on a jury, presented with the facts recited in this report, and charged to determine whether the FAXes were an unsolicited advertisement, I would vote "yes". I'd also vote for treble damages if the jury were so charged.

Bluestone's arguments are no different from those of spammers -- they always omit the fact that reception of their "free speech" is in no way optional.
2.6.2008 8:42pm
Frater Plotter:
RowerinVa and DiverDan have this one right.

The statute in question is simply the first instance of a principle that has shown up in other statutes since then: that when the recipient pays the cost of receiving a communication, it may not be used for unsolicited commercial speech.

Laws against telemarketing to cell phones, telemarketing via collect call, and sending spam email or SMS, are just further instances of the principle expressed by the legislature in this statute.
2.6.2008 8:45pm
PatHMV (mail) (www):
Eugene, is it really well-established that "commercial speech" as used in the anti-fax-spam law means the same thing as that phrase means in the First Amendment context?

It seems to me that you could, at least in theory, say that the material FAXED to someone is an advertisement, while the same material, merely posted to a website, is not. By faxing the material, the lawyer is actively calling attention to himself and his practice, not passively making information available to interested parties seeking it out. If you took a random post of yours about some legal issue and ran it in the newspaper with your name and contact information, it would be very clear that that was an ad, even if the same writing, if printed in a bar journal, would not be commercial speech.
2.6.2008 8:58pm
Crafty Hunter (www):
I am not an attourney, nor do I stand on random street corners pretending to be such to horrified bystanders. However, I find myself moved to ask whether Mr. Volokh truly suspects that a particular literal interpretation of this ruling could be taken out of context to apply to the content of Web sites in general (written by lawyers), as opposed to the content of unwanted fascimiles. Will this really happen? I know next to nothing of case law and have no idea whether this sort of rubbery distortion could occur in reality.

As pointed out by others here, yelling in a man's ear on a public sidewalk or even in the man's home or office is rather different from quietly holding up a small sign from some distance away, in one's own front yard.
2.6.2008 9:20pm
Eugene Volokh (www):
PatHMV: The court seems to have taken the view that the TCPA covered "commercial speech":
Plaintiff ... argues that defendant's occupation and the nature of his practice (prosecuting other attorneys for legal malpractice) defines the true purpose behind these faxes and has the effect of transforming what would otherwise be noncommercial speech fully protected by the First Amendment of the US Constitution to unsolicited advertisements barred from fax transmission by the TCPA.
So did the dissent:
The TCPA's constitutionality is grounded in its limitation to commercial speech (Central Hudson Gas &Elec. Corp v Public Service Comm. of N.Y., 447 US 557, 562-563 [1980]). It cannot be used to ban noncommercial speech - and by its terms does not seek to do so. Keeping with that commitment, it should not be read to ban what is otherwise noncommercial speech simply because under the circumstances presented it could be argued that the transmission in question may have some commercial value to the sender.
2.6.2008 9:24pm
PatHMV (mail) (www):
Frater Plotter... what you, RowerinVa and DiverDan are missing is that the statute doesn't prohibit unsolicited non-commercial speech. If the fax is not "commercial speech," then it is not prohibited, regardless of whether it was solicited or not. Eugene is not concerned with whether the lawyer in question is prohibited from faxing (frankly, I don't know why there should be an exception for ANY unsolicited faxes), but what collateral damage will be caused by categorizing that particular writing as "commercial speech."
2.6.2008 9:27pm
RowerinVa (mail):
Eugene, I still disagree with you. The court did conclude they were junk faxes. And it's not a close case due to several facts, including not merely that the 14 faxes were subsantively identical, but also that they were substantively identical to prior faxes sent in a prior course of conduct some years back:

"Insofar as it is relevant to the issue of treble damages, Bluestone was served with a similar complaint for violation of the TCPA in 2003, by an unrelated attorney named Antollino. In that case before the same court and Justice, summary judgment was granted in favor of Antollino, with the court explicitly rejecting Bluestone's claim that the faxes were purely informational and did not explicitly offer services, finding that they constituted prohibited advertisements (Antollino v LaSalle Services, Inc., Sup Ct, NY County, May 12 2004, Solomon, J., index No. 116629/03). The faxes involved in Antollino, are virtually identical to those involved in the instant case except for the fact that in the box at the bottom in the Antollino faxes, it stated "Presented by the Law offices of Andrew Lavoott Bluestone, concentrating in Attorney Malpractice Litigation ... Inquiries are welcome." In the faxes at issue here, the phrases "Concentrating in Attorney Malpractice Litigation," and "Inquiries are welcome," have been deleted."

So he's trying to adjust it just enough to fake a non-ad, conduct that deservedly gets greater scrutiny than similar conduct by a first time offender. The opinion goes on to note that none of these people had ever had contact with the defendant and that his posts weren't varied. This isn't remotely like blog posts, judicial opinions, newspaper articles, or other things that include debate and constant updates. This is mass-produced, completely repetitous chum meant not to persuade but to establish name recognition.

The junk fax statute can be tougher where it's just a nut faxing screed after different screed to a particular target. I agree that context matters. Sure, there can be close cases. But this just isn't one. I don't see the slope as being very slippery here.
2.6.2008 9:29pm
PatHMV (mail) (www):
Thanks, Eugene. I've never been 100% comfortable with that line of jurisprudence which suggests that others have a Firsst Amendment right to speak to me in a manner which costs me money, but it does appear to be the law.

I would still suggest that the act of faxing itself, pushing the writing out to the recipients, could transform the writings from non-commercial to commercial speech. It strikes me as very easy to recognize a distinction between shoving that fax out to everybody and a general-interest, diverse blog such as the V.C., or How Appealing. However, some special-purpose web sites may be a closer call. For example, the excellent intellectual property site put out by Ivan Hoffman.
2.6.2008 9:34pm
Bleepless (mail):
You? Commercial? What goods or services are you trying to sell? "Would you like fries with your Fifth Circuit opinion?" Hmmm. I don't hear any "ka-ching!"
2.6.2008 9:59pm
George Weiss (mail):
a little legal realism please?

if the bar tires to censor law blogs based on misleading content..(and say they arn't constitutionally protected because they are commercial speech) or plaintiffs sue on a theory of strict liability for false advertisement statement and (and say the statements aren't constitutionally protected because they are commercial speech) judges will clearly see that the next target is law reviews..etc...changing the legal profession forever.

judges and big shot lawyers have a conservative instinct towards their profession not changing that radically...even if the judges struggle to find a distinction constitutionally..they will find a way not to hold blogs strictly liable for false statements or allow the bar to censor law reviews. (perhaps there is a distinction in stirct liability for false advertising statements between blogs and faxes..even if there is no constitutional protection for either)

or perhaps the lawyers will use their influence to get a statutory protections.

the primary outcome of this case is good..and yes..doctrinally its does open the door collaterally toward blogs...but it couldn't possibly happen..so enjoy the outcome and don't worry about it.
2.6.2008 10:03pm
TerrencePhilip:
Slightly off-topic: I noted, Judgment rendered August 25 2006; appellate decision rendered, January 31 2008.

New Yorkers: is this length of appellate delay (almost 18 months) typical for a relatively simple case that probably has a slender record?
2.6.2008 10:45pm
Fub:
RowerinVa wrote at 2.6.2008 9:29pm:
So he's trying to adjust it just enough to fake a non-ad, ...
In particular, the decision noted:
In seven of the faxes, the box also contains a telephone number to call in order to be removed "from this list."
So, if he believes his faxes aren't advertisements, why did he feel it necessary to comply with 47 USC ยง 227(b)(2)[D] requirements for notice and a cost-free removal contact?
2.6.2008 11:05pm
Brett Bellmore:
I'm somewhat troubled by this notion of commercial speech "in a First amendment sense". Isn't there some way of distinguishing categories that can actually be found in the Constitution from these categories the judiciary made up out of whole cloth? The first amendment doesn't distinguish between commercial and non-commercial speech, after all, any more than the Sixth distinguishes serious from minor criminal cases.

They're just distinctions people invented because they didn't want to obey the Bill of Rights all the time.
2.6.2008 11:10pm
Gregory Conen (mail):
@Fub: Maybe because he recognizes that receiving faxes costs money, and so the polite thing to do is to give people the option to opt out. Occasionally, people will actually do things that the law does not require them to do.
2.6.2008 11:55pm
Bill Sommerfeld (www):
actually, the polite thing to do is to not send unsolicited faxes or email. opt-out doesn't really work (the senders keep mutating identities to invalidate past opt-outs).

I think folks are looking at this in entirely the wrong way.

fax and email spam is not a matter of speech. it's a matter of trespass -- the spammer pushes his message into the face of the reader by abusing communications mechanisms generally built for solicited communications. The same content on a website (where the reader chooses whether or not to view the text) should be protected.
2.7.2008 10:16am
Tony Tutins (mail):
This case has to turn on the unsolicited nature of the material. People have to find their way to this blog. Further, even journal articles explaining or advancing knowledge in a certain area necessarily have to be written by those who make their living in that field. That a reader may be impressed enough by the article to hire the author does not make the article the sort of speech that proposes a commercial transaction. Held otherwise, every scientific, technical, or professional article would be commercial speech.
2.7.2008 1:43pm
grumpy realist (mail):
I've been sporadically bombarded by junk faxes advertising health insurance and now mortgages. Yeah, they have an "opt-out number" but considering that the bloody message on the other end is the exact same every same time I get put through this rigamarole, you can tell they're just mutating the numbers to stay ahead of the cops.

If there were a button I could press to electrocute the sender of the fax I would certainly press it. I'm that ticked off.
2.7.2008 5:44pm