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Commercial Speech and the Distinction Between Unsolicited Speech and Speech in a Voluntarily Accessed Publication:

In the lawyer self-promotion thread, I pointed out a troublesome implication of a New York appellate decision applying the Telephone Consumer Protection Act. The decision held that a lawyer's unsolicited faxes explaining some legal issues (and implicitly promoting the lawyer as an expert whom readers should hire) were commercial advertising, and thus less-protected "commercial speech" for First Amendment purposes. The same logic, though, would suggest that a lawyer's blog, legal magazine article, treatise, or newspaper column (which also implicitly promote the lawyer as an expert whom readers should hire) would be commercial advertising, too.

Some readers suggested a possible distinction: Unsolicited faxes come to the recipient, simply because he's plugged his fax machine into the phone line; the other communications only come to him once he's opened up some publication or visited some Web site. And I agree that this is a distinction that makes us annoyed by unsolicited faxes (especially since they cost the recipient money by using his paper), and may justify special statutes aimed at such faxes.

But the trouble is that this distinction can't affect the judgment of whether something is "commercial speech" for First Amendment purposes. The commercial speech cases generally define the category to include speech that proposes a commercial transaction between the speaker (or the speaker's business partners) and the listener (or the listener's business partners). That includes proposals in unsolicited speech (such as mailings or in-person approaches) or in voluntarily accessed publications (such as newspapers, magazines, or TV programs). Many of the Court's "commercial speech" cases in fact involved commercial ads in newspapers, on television, on product labels, and the like.

An "Accident? Hire me" ad is equally a proposal of a commercial transaction if it's in an unsolicited fax, in a free newspaper dropped on your doorstep (which may have a combination of editorial and advertising), in a free newspaper you pick up, or in a newspaper which you pay to subscribe to. Likewise, an "Introduction to lawyer malpractice law" page is equally a combination of information and an implicit suggestion to hire (or refer people to) the author if it's in an unsolicited fax, in a free newspaper dropped on your doorstep, in a free newspaper you pick up, or in a magazine which you pay to subscribe to.

It may well be that the law should bar all unsolicited faxes, whether they are commercial or not. And it may well be that First Amendment law should treat restrictions on unsolicited speech differently from restrictions on solicited speech.

But the statute here distinguishes commercial speech from noncommercial speech; and it condemns the particular fax here on the grounds that it is commercial advertising, which is to say commercial speech. That logic can't be neatly cabined to apply only to annoying unsolicited faxes, when commercial speech can exist in lots of other media as well.

(For evidence that the line TCPA draws for faxes tracks the First Amendment commercial/noncommercial speech line, see the uncontradicted assertions in the Stern v. Bluestone dissent and the reasoning in Rudgayzer & Gratt v. Enine, Inc., 779 N.Y.S.2d 882 (2004), on which Stern relies.)

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