Category Archives: Advertising

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)

Text Messaging Solicitation

Over at Real Lawyers Have Blogs, Kevin O’Keefe rails against the use of text messages by Ohio personal injury lawyers for solicitation of accident victims.  A few observations:

  1. Kevin’s right that use of text messages is tasteless and intrusive.  And on a purely pragmatic level, it’s probably ineffective in most cases for the firms that use it, given the relatively non-commercial conventions of SMS usage.
  2. However, this doesn’t mean that solicitation by text message should be outlawed by the Bar.  It’s long been established that the state can’t regulate advertising based on taste or the “dignity of the profession.”  Bans on specific forms of solicitation have only been found constitutional when they involved the coercive presence of a trained advocate, in circumstances calling for a yes/no answer on the question of representation.  That’s not the case with SMS; it’s a simple matter to just hit “delete” and think no more about it.
  3. Ohio requires that a disclaimer accompany all solicitations sent to accident victims within 30 days of an accident:

THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE. 1

The Bar requires that this disclaimer be included within the body of text messages, even if it requires several messages to do so.  This interpretation wouldn’t (or at least, shouldn’t) survive a constitutional challenge, as it pretty much eliminates the ability to use text messages to communicate with accident victims.  The Bar has the burden to show that its mandatory disclaimer is necessary and minimally restrictive; they’re unlikely to be able to do so here, given the lack of flexibility.

Solicitation by text message is unseemly and distasteful,  but taste can’t be regulated by the bar without offending the first amendment rights of lawyers to speak and consumers to have timely access to the information they need.  Prohibition of speech is a blunt instrument.  And while it’s easy to imagine scenarios where a text message would be unwelcome, it’s equally easy to imagine situations where consumers would be well-served by having timely information about their rights, even if these cases are few and far between.  Ultimately, consumers are better served by relying on market and first amendment forces to discipline advertising tactics such as these.

Update 12/24/13Scott Greenfield has tried to take me to task on this one, but he’s missing the point – or letting his distaste for lawyer marketing blind him.

I think that – absent unusual circumstances – solicitation by text is going to be sleazy.  And ineffective.  It’s just that, under existing law, the bar can’t prohibit it. 2

Look at the Primus case.  Look at the Shapero case.  Two Supreme Court cases on bar rules prohibiting forms of written solicitation.  Two cases applying the intermediate scrutiny standard of review for commercial speech.  And two decisions overturning such restrictions, noting the fundamental difference between written and in-person solicitation.

Do you think text messaging is “in person” or “real time?”  You’d need to, in order to make the argument that Ohio could have arrived at any decision other than the one it did.  Or you’d need to believe that Primus and Shapero need to be revisited.

(@Popehat also raises the specter of the TCPA.  While the TCPA limits the ability to use robodialers to send these texts, it doesn’t apply to manually-placed calls or texts.)

 

Notes:

  1. Ohio Rules of Professional Conduct 7.3(e).
  2. Which is a good thing – see my point about speech prohibitions being blunt instruments.