Category Archives: Other Social Media

Text Messages and the TCPA

Once again – I don’t like text messaging as a marketing tool.  I think it’s sleazy and ineffective.  But as I pointed out before, Ohio – in issuing an ethics opinion saying solicitation by text is OK – was simply following Supreme Court precedent that written solicitation cannot be prohibited.

A number of commenters on Twitter have pointed out that the TCPA – the Telecommunications Consumer Protection Act – restricts text solicitation, suggesting that the Ohio attorney regulators could do the same.  But the TCPA doesn’t prohibit text solicitations. It is a content- and speaker-neutral regulation, and its application to text messages is limited to texts made using autodialers.  It doesn’t restrict a particular class of speaker, or even a particular type of message.  It simply prohibits a spammy method of distributing messages far and wide.

The sort of regulation that would prohibit a class of speakers (attorneys) from using a medium to communicate a certain type of message (a solicitation) – is entirely different.  It’s not a neutral “time, place and manner” regulation like the TCPA.  It would be a content-based restriction that would foreclose the avenue entirely, and thus would be presumptively invalid.

Now, the state could overcome that presumptive invalidity, and it would do so under the intermediate scrutiny standard applicable to commercial speech regulation.

But that brings me back to my original point: Ohio surely considered that.  And what they found was that an outright prohibition of a form of written solicitation doesn’t fly under the First Amendment. 1

Could there be something different about text messages?  More problematic than other forms of written communication?  Maybe, but I don’t see it.  And given how fast technology changes, and how people communicate (the TCPA itself being woefully long in the tooth), it’s best that Bars show restraint when considering the outright prohibition of forms of speech.

Notes:

  1. As the Supreme Court has ruled, twice, in In re Primus and Shapero v. Kentucky Bar.

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.