All posts by Josh King

Forget the “Right to be Forgotten”

Earlier today, The EU Court of Justice ruled that Google must remove “excessive” and “irrelevant” links to otherwise-public and truthful information about individuals.  Sounds great, right?  After all, who needs a bunch of digital flotsam following them around for all time?

A lot of attention is going to be paid to the putative privacy rights at issue, and the additional cost and complexity that complying with this directive is going to lard onto Google and other search engines.   But focusing on such things is missing the larger point: how relatively well-intentioned laws like this burden free expression.

To be sure, there’s little value in a lot of historic crapola floating around online.  And most of us have at least something that could be dredged out of the cyber-ooze that we would prefer to see remain buried.  But we’ve long concluded – in this country, at least – that the “more speech” solution is better than trying to ban certain pieces of expression.  And that’s particularly true when it comes to truthful statements.

One of the great benefits of the American approach to free expression is the “breathing room” it affords for speech.  Once you start ruling certain types of speech out-of-bounds – even “excessive” or “irrelevant” speech – you’ve opened the doors to all sorts of expression being called into question.  The uncertainty and ambiguity around publishing something becomes far more than a matter of cost or complexity.  It makes speakers second-guess whether they are going to speak at all.  And it greatly empowers the censor’s veto over speech they don’t like, particularly when the speaker has deep pockets.  It’s a pattern seen time and time again in the UK, and one that will surely accelerate in Europe if this “right to be forgotten” picks up traction.

Although of little comfort to Google and other sites that operate internationally, these developments shouldn’t impact US-based speakers and online businesses.  As a limitation on truthful speech, there’s no chance that a “right to be forgotten” could comply with the First Amendment.  And even if someone obtained a foreign judgment for failure to comply with such a right, the federal SPEECH Act would render that judgment unenforceable in the US.

And lest you think I’m not sensitive to the privacy rights of those pushing for this right, well . . . OK, I’m not.  There are no privacy rights in public facts.  And no one should go out of their way to find such rights at the expense of free expression.

Here’s a better idea: instead of trying to erase the collective memory of the internet, privacy advocates should devote their energies toward creating a reputation – online or otherwise – that they can be proud of.  Even if it’s got a few bumps and rough edges.

 

 

 

Critiquing New York’s Social Media Ethics Guidelines

Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.”   The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.

 

Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.

Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference.  So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.

 Guideline No. 1.A Applicability of Advertising Rules

The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply.   That’s fair, if a bit conservative.  Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance.  The question would really turn – as the California Bar noted – on the substance of individual social media updates.

As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:

Don’t include advertising messages in your social media updates.

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media

The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”).  Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”

That doesn’t make it right.  None of these “forbidden words” regulations are likely to survive constitutional scrutiny.  The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist.  Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention.  And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog.  It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.

But then the Guidelines get into more troubling territory.  First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”

The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.”  There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.

But “prompted?”  That’s far too overreaching.  Attorneys SHOULD be prompting their clients to leave online feedback for them.  And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. 1

Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules.  If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it.  And failing that, they should consider whether a “curative post” needs to be made.

While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation.   I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.

2. FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA

Guideline No. 2.A: Provision of General Information

The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.

That’s sound advice, for the most part.  However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous.  It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline.  General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting.  There’s nothing unique about social media in this respect.

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.

The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation.  They seem complete, thoughtful and well-balanced.  And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.

Notes:

  1. Again, thanks to 47 U.S.C. 230(c)(1).

More Compelled Speech Knocked Down

I was traveling in Scotland when this opinion came out last week, and it warms the cockles of my Scots-Irish heart to see more comeuppance for the state trying to tell us what to do.

In Nat’l Assn. of Manufacturers v. SEC, the DC Circuit dispensed with the “conflict free” labeling requirement for diamonds.  As the court rightly notes, the state only enjoys the easy-peasy “rational basis” standard of review when the compelled disclaimer is “reasonably related to the State’s interest in preventing deception of consumers.”   Otherwise – like when it wants to send a political message or inform consumers about something or other – its requirement must meet intermediate or strict scrutiny.

For the Love of Disclaimers

Jonathan Adler has a fascinating post up at The Volokh Conspiracy titled “What are the Constitutional Limits on Compelled Commercial Speech?”  The post explores litigation over the USDA’s “country of origin” labeling rules for meat – you know, when you buy hamburger at Trader Joe’s and the label says something like “contains beef from the United States, Canada, and Brazil.”  Yeah . . .

But besides providing consumers with some interesting information (and likely driving interest in the American grass-fed cattle industry as a result) 1, what do country of origin regulations really do for us?

It bears repeating that compelled speech is supposed to be subject to the same constitutional analysis as prohibited speech – meaning that such speech regulation must meet the Central Hudson standards, including the finding of a substantial state interest.

Unfortunately, the analysis is often lost on judges evaluating disclosure or disclaimer requirements.  As Adler explains, the D.C. Circuit, relying on Zauderer v. Office of Disciplinary Counsel, found that meat purveyors have only a “minimal” First Amendment interest in not disclosing purely factual information.

Problem is, that’s not what Zauderer stands for.  Rather, as I explain in the Disclaimers section, the lesser, “reasonably related” standard of review only kicks in if the advertising would be inherently misleading without the disclosure of additional facts.  Absent that finding, the full Central Hudson analysis would apply.

Adler takes this a step further, noting that the Zauderer case may be understood as having pre-met the first prong of the Central Hudson test: it inherently involved the government’s substantial interest in preventing consumer deception.  I don’t think that’s quite right, as Zauderer allows the government an easier pass on the other prongs, assuming the finding of an inherently misleading communication has been made.  But that’s where the mischief comes in; too many courts – and state bar regulators – take the latter part (the “reasonably related” test), and apply it to ALL disclosure requirements, regardless of whether or not they are intended to cure inherently misleading communications.

Such as country of origin requirements.  There’s nothing inherently misleading about selling meat without disclosing what country it came from.  It’s simply a matter of consumer curiosity.   But as Adler notes, the government has to have a substantial interest in forcing a particular communication.  And there’s little chance that a free-floating “consumer right to know” meets that bar, as proponents of bovine growth hormone labeling have learned. 2

The good news is that the D.C. Circuit may provide more clarity.  It has agreed to re-hear the case en banc, and will likely shed some important light on the conditions under which the government can compel speech.

Let’s hope that the attorney regulators, with their love of disclaimers, are paying attention.

Notes:

  1. I love grass-fed beef; if you’re in Washington State, I can’t recommend Nelson Ranch in Olympia highly enough.  Wonderful people; great beef.
  2. But by the same token, efforts by states and agribusiness to prevent producers from touting their products as being free of bovine growth hormone are similarly unlikely to pass First Amendment scrutiny.  See Int’l Dairy Food Assn. v. Boggs, 622 F.3d 628 (6th Cir. 2010).

Do You REALLY Appreciate NYT v. Sullivan?

It’s the 50th anniversary of New York Times v. Sullivan, a Supreme Court case that any media law attorney will tell you ranks among the most important First Amendment cases of all time.

Sullivan held that public figures cannot pursue defamation claims unless they can establish that the false and defamatory statements were published with “actual malice.” This, the court held, was crucial to establishing the “breathing space” necessary for robust political dialogue.  And quoting Judge Learned Hand, Justice Brennan’s opinion notes that the First Amendment:

“presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” 1

So ask yourself: if you agree that the government shouldn’t be picking winners and losers in the competition for the public’s ear, how do you feel about the Supreme Court’s 2010 decision in the Citizens United case?

How you answer THAT question will tell you whether you really believe in the values articulated in New York Times v. Sullivan. 2

Notes:

  1. New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
  2. Two other interesting things about Sullivan: first, it’s a good illustration of the point that not all advertising is commercial speech (the case centered on the political ad embedded above).  And second, I’ve found that many attorneys mis-remember Sullivan from law school as standing for the principle that the media is only entitled to publish information about public figures.

New Photo Resource for Bloggers


I often get questions about blogging logistics from lawyers, and I’m consistently surprised by  the lack of awareness of basic copyright issues.

No, you can’t wholesale copy someone else’s blog post.

No, you can’t clip photos from wherever online and post them on your blog.

No, linking to/attributing the original source does not make it OK.

As I point out on the blogging resources page, there’s no excuse for abusing copyright when it comes to photos.  It’s very easy – and far more authentic – to use your own photos vs simply picking the top stock photos.  And there are plenty of free/very low cost options for licensing photography.

And now, Getty Images has added a new option with lots of potential.  They’ve opened up the doors on a vast trove of photos, new and old, and made them available via embed code.  Easy, simple, and free.

Simply go the Getty Images website, search for a photo, and click on the little embed icon in the lower right corner under the image (it looks like this: ““) and copy the embed code that appears into your blog post.  Not every image on Getty is available via this method, but apparently millions are (including the “Queens Counsel” photo, above).

Is it a perfect solution?  No.  But if you need that perfect picture, it’s nice to know there’s about 35 million options available at Getty Images.  And it’s far better than ripping photos off the web and hoping you don’t get caught.

Jordan Jams on Jewel

Back in the day, kids would have posters in their rooms of Michael Jordan, the photo taken through the transparent backboard, a tongue-lolling Jordan poised to deliver a monster jam over whatever hapless opponent happened to be in the way.

MJ is long-retired, but he’s still “postering” opponents – just in a different kind of court.

Jordan v Jewel

On the occasion of  Jordan’s induction into the NBA Hall of Fame, Jewel Foods (a Chicagoland grocery chain) ran a congratulatory ad in a special edition of Sports Illustrated.  Jordan  took offense, and sued for $5M alleging publicity rights violations.   While Jewel prevailed at the District Court level,  the 7th Circuit reversed, finding the ad to be commercial speech.  The opinion has a nice discussion of how the commercial speech doctrine works in edge cases like this.

When I read the case, I thought perhaps the court had gotten it wrong.  After all, not all advertising is commercial speech.  It’s got to have an economic motive, promote a specific product and be in an advertising format.  And this was just a nice ad congratulating a local legend, right?

But then I saw the ad itself.  Check, check, and check.  Although Jordan’s suit does seem awfully mean-spirited and petty, it’s not hard to see why the 7th Circuit found it be “image advertising” subject to the commercial speech doctrine.

Jordan v.  Jewel Food Stores (7th Cir. 2014)

Sorrell and the Advance of Big Data

I spent last Friday at the Reinvent Law conference in NYC (where I did a talk on price transparency and legal services) and then flew to Miami Saturday morning for the inaugural meeting of the Digital Communications Committee of the ABA Forum on Communications Law.

(Yes, that’s a mouthful of a committee name.)

There were many, many interesting discussions at both, but the two conferences were quite different from one another.  As you’d expect, going from a chilly New York conference filled with law students and legal technologists to a sunny Miami venue populated with communications lawyers.

However, one topic brought up at both was the applicability of the first amendment to pure information.  In both cases, reference was made to the recent case of Sorrell v. IMS Health, which is relevant both to attorney advertising regulation and commercial use of information in general.

There was some concern among the media lawyers I met with in Miami that, despite Sorrell, the FTC will attempt to treat as unfair trade practices the collection and use of aggregated and de-identified consumer information.  And in New York, Michigan State law prof Renee Knake observed the long history of bars extending speech regulation beyond the legitimate-but-limited goals of protecting consumers and enhancing professional expertise – and the danger that bar regulators will seek to stymie uses of data by lawyers to better serve clients.

The use cases for big data and consumer targeting and tracking are exploding, as are privacy concerns.  But while I’m sympathetic to legitimate privacy concerns and the need for consumer choice, I’m very leery of regulatory overreach around uses of this data. As we’ve long seen with the Bars, the regulators aren’t known for their exercise of restraint.  I suspect we will see more and more first amendment litigation on this topic in the next few years.

Think Before You Tweet

An appellate court attorney in Kansas was admonished after sending out a series of tweets regarding an highly-publicized matter being heard in the court.  She was also fired.

It’s a good reminder to think twice (or three times . . .) before hitting the “tweet” button. But it’s also a reminder that bar disciplinary authorities don’t always pay much attention to first amendment issues when imposing discipline.  

The tweet that caused the most consternation was one that read “I predict he will be disbarred for a period of not less than 7 years.”   Given that the tweeter was a court employee, it’s not a stretch to see this tweet as a violation of Kansas RPC 8.4(e), which prohibits stating or implying the ability to improperly influence a government official.  

Likewise,  it’s easy to see why the authorities imposed discipline under Kansas RPC 8.4(d), which proscribes behavior interfering with the administration of justice.  After all, the tweet, when brought to light, caused no small amount of motion practice and general kurfuffle in the proceedings.

But in a bit of piling on, the Kansas authorities also found that the tweet violated Kansas RPC 8.4(c), which prohibits dishonesty, fraud or misrepresentation.  The grounds for so doing was that the author of the tweet had no “legal or factual basis for making such a prediction.”  

It would be nice if all opinions – particularly those expressed by lawyers – were so solidly grounded.  But that aspiration is a far cry from a regulation requiring that those expressing opinions must have a sound basis in law or fact in order to avoid discipline. Even attorneys have a first amendment right to go off half-cocked.

Ethics and Rude Blog Commenting?

In several Socially Awkward resource pages, I’ve highlighted problems that can come from anonymous commenting that involves deception or is related to pending matters an attorney is involved with.  But what if the commenting is merely rude, mean-spirited, or sexist?

Could Above The Law even exist if rude comments raised ethical concerns for lawyers?

FLP photo

Apparently one lawyer thinks they should. University of Denver lawprof Nancy Leong has asked Illinois bar regulators to investigate the ethical propriety of comments on her blog posts that she believes were made by an Illinois attorney  under the pseudonym “Dybbuk.” 1

The comments don’t involve pending matters or self-interested fabrication.  The examples I’ve seen run to juvenile  humor, sexism and slams on law professors.  They may reveal an unhealthy interest in Professor Leong, latent rascism, sexism, or both.  Or perhaps “Dybbuk” has discovered a soft target that reacts in a way he(?) finds gratifying.

But again – would this merit an ethical violation, assuming Dybbuk is a lawyer?

Jim Grogan, Chief Counsel of the Illinion ARDC (and one of the most pragmatic, reasonable bar regulators you’ll find), hones right in on the First Amendment issue:

When does personal life stop and the ethics code applies?

Indeed.  And it doesn’t stop short of what “Dybbuk” has written here.  While some might argue that considerations of civility should come into play, it’s important to recognize that there’s no free-floating requirement that attorneys be civil.  While a lack of civility could raise ethics issues in an ongoing matter (e.g., under ABA Model Rule 8.4(d) as being prejudicial to the administration of justice), that’s a far cry from anonymous blog commenting.

And that anonymity is an important factor.  A lack of civility is a problem within an adversarial proceeding because the advocates are known, are representing clients, and may create real-world problems for their clients through a lack of civility.

But anonymous commenting on a blog?  That’s a well-known milieu for trollish behavior, and – absent threats, defamation, or the like – is a risk to nothing but the sensibilities of the blog post’s author.

This isn’t an endorsement of “Dybbuk’s” sophomoric comments, but rather the right of the commenter to make them without fear of government involvement.

And as with so many matters involving speech, it’s a problem best handled via the “more speech” remedy.  The First Amendment should prevent Dybbuk from government consequences to his license, but it doesn’t shield him from professional or social consequences.  Professor Leong is sure enough she’s found her man to ask for the bar to take action.  The better – and more speech-affirming – option would be to simply expose him publicly.  Of course, taking such a course would presume that Professor Leong is a strong defender of First Amendment rights.

Update: Carolyn Elefant – a practicing attorney and long-time blogger – has just posted a great perspective on this.

Notes:

  1. A Yiddish word for a parasitical evil spirit, which should be a clue to the tone of “Dybbuk’s” comments.