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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).

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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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Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise

Last year, I blogged about Stern v. Bluestone, a New York decision that found a malpractice lawyer's (and legal blogger's) "Attorney Malpractice Report" newsletter to be advertising, because it implicitly promoted the author's professional services. I pointed out that the decision's rationale would apply to blogs, articles, treatises, and other materials that likewise implicitly (and usually deliberately) encourage people to hire the author. And though the case involved penalties for unsolicited faxes, its rationale would equally have applied to other speech restrictions:

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.

Today, New York's highest court reversed that decision. An excerpt:

During the roughly 16-month period from November 25, 2003 through March 29, 2005, plaintiff Peter Marc Stern, a solo practitioner, received 14 unasked-for facsimile messages (faxes) from defendant Andrew Lavoott Bluestone, a solo practitioner who specializes in bringing attorney malpractice actions. Each fax was entitled "Attorney Malpractice Report," and included Bluestone's contact information and web site addresses. The body of each fax consisted of a short essay about various topics related to attorney malpractice: fee disputes with clients, the elements of professional malpractice, liens, common causes of attorney malpractice litigation, and unexpected circumstances in which claims of attorney malpractice arise....

In 2006, when it amended its rules implementing the TCPA and the Junk Fax Prevention Act of 2005, the Federal Communications Commission (FCC) elaborated on what constitutes an "unsolicited advertisement." With respect to "informational messages" via facsimile, the FCC stated that

"facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement ... Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products."

We conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's framework for an "informational message," and thus the 14 faxes are not "unsolicited advertisement[s]" within the meaning of the TCPA. In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement" of his services, which "does not convert the entire communication into an advertisement."

This doesn't directly deal with the First Amendment question of whether such faxes are less-protected "commercial speech" (a term of art which roughly means "commercial advertising") rather than fully protected speech. But at least it sets aside the lower court decision that they are indeed less constitutionally protected.

I should note that there are plausible arguments that the government might be free to bar all unsolicited faxes, commercial or otherwise — or implement a "do not fax" list that applies equally to all such faxes — on the grounds that they wrongly trespass on recipients' property and consume recipients' resources. But the law doesn't didn't do that: Rather, it limits itself to commercial advertising. It's therefore important (both to the applicability of this statute and to the applicability of other rules) to properly distinguish what constitutes restricted (and more broadly restrictable) commercial advertising, and what doesn't.

Congratulations to Scott Greenfield (Simple Justice) on winning this important case for his client.

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