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.