Publicity Rights & Commercial Speech

Yes, I’m about to write about a case involving NFL Films, which has approximately nothing to do with lawyer advertising.  But it’s a nice example of the relatively narrow parameters of the commercial speech doctrine.

And repeat along with me, lawyers: only your commercial speech can be regulated by the state bar advertising rules.  If you’re staying non-commercial, you don’t have to worry about whether the ad rules apply to your tweeting or Facebook updates.

In our NFL Films example, three former players sued, claiming that NFL Film compilations of old game highlights violated their rights of publicity.  What’s important about the Federal District Court’s dismissal of the case on summary judgment is its detailed discussion of these two principles:

1) Publicity rights claims (which, you might have gathered, I loathe) can only survive if the underlying communication is commercial speech; and

2) Commercial speech, while continuing to evade a bright-line definition, must contain some meaningful combination of economic motive, advertising format and reference to a specific product.

The decision reiterates that economic motive alone is NEVER sufficient to render speech “commercial.”  It also notes that the fact that the films are all about the NFL and its players does not make them a form of “image advertising,” but rather expressive products in their own right.

All in all, a good case to remind us of the limited scope of commercial speech, and the fact that free expression needn’t face the publicity rights tollbooth just because it features people whose images have commercial value.

Um, yeah . . . that’s not how you do it

So let’s say you’re a legal blogger. One day, when writing about developments at your local court, you get a little carried away. You suggest that the judges might be venal, corrupt, unscrupulous. You don’t mince words.

So the Bar comes calling. Because while attorneys can certainly exercise their first amendment rights in criticizing judges, there are limits (limits roughly congruent with the counters of public figure defamation) to so doing.

Faced with disciplinary proceedings in such circumstances, you would have choices. You could choose to be remorseful, and plead a temporary overload of emotion. You could choose to stand on your rights, and argue that your statements are protected by the first amendment and that the judges should grow a thicker skin.

Or, you could choose to sue the disciplinary authorities for copyright infringement for including portions of your blog in the disciplinary filings.

If you wonder how door #3 would work out, well, it’s about what you would expect.

Attorney Licensing and Restraint of Trade

Tomorrow, the Supreme Court hears oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission.  It’s a case of not-inconsiderable interest to state attorney regulators, as the central issue is the extent to which state licensing boards can clear the field of non-licensed competition.

The primary point is based in antitrust law, and whether the “state action doctrine” (which immunizes state agencies from most antitrust law) applies to entities – like licensing boards – which have been granted regulatory authority by the state, but which are made up largely of market participants rather than neutral regulators.

You can see why this would be a problem.  Grant competitors the right to regulate the field, provide minimal-to-no objective oversight, and you’ve set the stage for all manner of anti-competitive behavior.

In North Carolina, this predictably enough resulted in the Board of Dental Examiners (an entity largely composed of practicing dentists) ordering non-dentists to stop providing teeth whitening services.

The parallels to law aren’t hard to see.  Most states have very loosey-goosey definitions of “the practice of law,” which are often used to exclude non-attorney businesses that do something that remotely smells of “legal.”  Real estate brokers, document preparers, accountants, etc. – all have at one point or another been the legal industry equivalent of mall kiosk teeth whiteners.

While not every state is regulated in this way, many have boards and commissions that carry out regulatory functions with little to no state oversight.  Advertising review commissions come immediately to mind.  Attorneys practicing in less benighted jurisdictions may not be aware that in places like Florida, most advertising must pass a gauntlet of review by a board of one’s competitors.  And, to add insult to injury, attorneys have to pay for this little exercise.  It’s a practice rife with problems and obvious antitrust concerns.

It certainly wouldn’t be a bad thing if state licensing boards had their wings clipped. There’s little to recommend the granting of state monopoly power to a group of market participants and then letting them exclude competition with impunity.  The practice is bad for consumers, protects entrenched interests, and acts as a drag on innovation. Pulling the state action doctrine back wouldn’t prevent the Bars from regulating, but it would be a step toward them – and all licensing boards – doing so in a more measured and appropriate way.

An Insult to Glaciers

I’ve been speaking and writing about the intersection of social media and the attorney advertising rules for over seven years now.  I often speak in California, and years ago I seized upon something happening in California to illustrate one of my themes. It goes something like this:

I tell attorneys that they need to understand the constitutional limits of the RPCs when it comes to attorney speech regulation, because they can’t very well look to the RPCs for specific guidance .  Communications media are just evolving far too quickly.  I would then point to an effort ongoing in California to align that state’s RPCs more closely to the ABA Model Rules, and note that the process had started a decade earlier, before anyone had even thought of Facebook, Twitter, etc.  You can’t possibly expect the output of such a deliberative process to speak specifically to any particular communication platform, I would say. 1

It then became a 11-year process.  Then 12 years.  Then 13, and finally 14 years.

And now it’s over, with nothing to show for the effort but an order of the California Supreme Court kicking the whole thing back for a re-do.  As in “back to square one.”

One the one hand, I like that this keeps my rhetorical method alive.  If anything, the state’s indecisiveness just reinforces the fact that attorneys can’t possibly hope for the RPCs, which change at a glacial pace, to speak specifically to new forms of communication.

But on the other hand, I feel bad for all of the leaders in the California ethics bar who worked so hard over the years on these changes.  Sheesh.  At this rate their grandkids are going to be leading the charge to get the California rules squared away. 2

Notes:

  1. Ironically, however, California HAS issued the most useful – and specifically detailed – ethics opinion relating to when attorney use of Facebook and Twitter crosses the line into regulated attorney advertising.
  2. And while I can’t speak for the substance of most of the proposed rule changes, I would love to see California get rid of the plainly-unconstitutional communications “standards” found in RPC 1-400.

Naughty Words Attorneys Can’t Use

Attorney ethics rules offer some great examples of the problems inherent in the mechanistic application of the law.  Sometimes, it’s a matter of a well-founded rules being applied to circumstances where technology has gutted the purpose of the rule . 1  But other times, it’s a case of the expansive regulator: the deacons at the bar stretching the breadth of the rule far beyond its logical (or constitutional) limits.

Back in 1990, the Supreme Court held, in Peel v. ARDC, that a bar can’t prohibit an attorney from truthfully advertising that they had been certified as a specialist by a bona fide organization.  The Court also expressed skepticism about the state’s position that the word “specialist” has a unique, narrow meaning apart from its generally understood meaning of “a person who has special knowledge and skill relating to a particular job.” 2  Nonetheless, many states (including Florida and New York) continue to prohibit attorneys from using terms like “specialist,” “specialize,” “expert,” and “expertise” except in conjunction with a bona fide certification.

What these states are missing is that it’s the certification that’s doing the work.  It’s false and misleading if attorneys hold themselves out as being “certified” specialists or experts when no legitimate certifying agency has conferred the honor. But the use of general terms like “specialist” or “expertise” on a standalone basis, with no claim of third party certification?  There is virtually no question that prohibiting such use is unconstitutional.

The wonderfully-named New Orleans attorney Kearney Soniat du Fossat Loughlin thought so too.  He had been disciplined by the Louisiana disciplinary board for stating on his website: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.”  Loughlin wasn’t content to take this slap on the wrist, so he appealed the discipline to the Louisiana Supreme Court, challenging the constitutionality of Louisiana’s prohibition on the use of the word “specializing.”

Loughlin won.  Unfortunately, he won because the court found that a) he hadn’t intended to break the rule and 2) the public wasn’t harmed.  It didn’t address his constitutional argument.

It’s great the Loughlin was willing to take on the bar.  I wish more attorneys would do so in cases like this.  There are real problems with false advertising that the bars can go after, but policing the use of  harmless, ordinary words isn’t one of them.

Notes:

  1. For example, prohibitions on fee-splitting being applied to purchases via Groupon, where there is no danger whatsoever of the fee split interfering with the lawyer’s independent professional judgment.
  2. Thanks, Mirriam-Webster!

Attorneys: It’s Not Always OK to Lie

SangaryLook, it’s OK to lie.  Or, at least, outside of some fairly specific circumstances, the government can’t punish you for lying.  Go check out U.S. v. Alvarez – and the now-unconstitutional “Stolen Valor Act” to see what I mean.

That doesn’t mean it’s not despicable to pass oneself off as a Medal of Honor winner, and the same First Amendment that protects our lies 1 also allows us to call out those practicing such behavior as the pathetic lowlifes that they are.

Which bring us to the tale of Los Angelese attorney Svitlana Sangary, who festooned her law firm website with numerous photos of Ms. Sangary hanging with celebrities.  Problem was, it was all phony – Sangary had photoshopped herself into all of the pictures.  She now finds herself facing the likely suspension of her law license.

Now, it’s important to note that the potential suspension recommended by the California State Bar Court wasn’t only because Sangary put some phony photos on her website.  It’s also because she utterly failed to cooperate, behaved in a manner that’s textbook “How Not to Handle a Bar Complaint,” and generally acted as a poster child for the proposition that admission to the Bar is no guarantee of fitness to practice law.

But I want to focus on the photos.   Sangary would have a good First Amendment defense if the bar had come after her for having the photos at issue here on a personal blog, facebook profile, or the walls of her office.  Just like everyone else, attorneys have the right to lie.  They might do so for any number of reasons: lack of self-esteem issues, to piss people off, or abject failure to understand social norms.

And again, remember: this isn’t to say that it’s not shameless and pathetic for a lawyer (or anyone, really) to behave in this way.  It is.  It’s just that there  can’t be any state-sanctioned penalties for so doing.

However, one reason for lying that isn’t protected by the First Amendment is commercial speech.  Not only is commercial speech in general subject to less protection than “core” speech (intermediate vs. strict scrutiny), false commercial speech is entitled to NO First Amendment protection.

So, Sangary’s photos.  There’s no question her website is a form of advertising, nor that the page with the doctored photos was designed to fulfill a particular marketing task: instilling Sangary’s potential clients with a feeling of trust, cachet, and exclusivity.   Thus the photos are a form of false advertising, and easily form the basis for Sangary to be disciplined.

That, plus the crazy way she handled it.  Seriously, the details in the judge’s order are a stark example of why consumers need to do more than be starstruck by a few celebrity photos when it comes time to choose a lawyer.

Notes:

  1. Or, more aptly, protects us from the chilling effect of laws allowing the government to determine what is true and what is false.

Publicity Rights vs. Media Law

I’m going to expand on a theme that recurs in my world with depressing frequency: the idea held by many (including many lawyers, who should know better), that the “for profit” nature of a company somehow limits that company’s right to publish information about an individual.

The usual argument is that the publisher – let’s say Avvo in this case – is publishing information about lawyers.  Because Avvo is “profiting off” those directory listings of lawyers, it must get permission from the lawyers involved (and, presumably, share the wealth if such permission is obtained).   1

This argument is a conflation of the publicity rights doctrine (which holds that companies DO have to gain permission from and compensate endorsers) with “Media Law 101” (which holds that everyone – for-profit companies included – has a fundamental First Amendment right to write about other people.

It’s really not very complicated.  If Avvo was to run an ad campaign claiming that “Attorney Brian Tannebaum thinks Avvo is the greatest,” we’d need to get Brian’s permission to do so.  We’d be engaging in commercial speech, and we can’t just appropriate the value of Brian’s publicity for ourselves. 2

But when we create a profile of Brian, and an opinion about him in the form of the Avvo Rating?  That’s not commercial speech, and it’s fully protected by the First Amendment.  We don’t need his permission to publish it.  It is neither commercial nor infringing on his right to monetize his own publicity.

And what of the fact that Avvo makes money from its publishing activities?  After all, we wouldn’t be able to sell ads if we didn’t have those attorney profiles and Avvo Ratings, right?

It doesn’t matter.  At all.

It’s the distinction between co-opting someone’s persona for marketing vs. covering that person in the media.  If it’s the latter – whether an Avvo profile, a feature article in The New York Times or a listing in Google – there is nothing the subject has to say about it.

And that’s precisely how it should be – because as should be obvious by now, we wouldn’t have any media if this wasn’t the case.

Notes:

  1. Avvo does not sell directory listings or charge readers to use the site.  It publishes the information proactively for consumers, and is supported by advertising sales.
  2. Note that publicity rights issues most often come up with respect to celebrities and sports stars who already have a market for their endorsement.  I expect I could get Brian’s endorsement for the price of a bottle of halfway-decent Chateneauf du Pape.

3rd Circuit Smacks NJ on Compelled Speech

Atlantic City, NJ Boardwalk Hall
Atlantic City, NJ Boardwalk Hall

Another day, another compelled speech case – this one involving lawyer advertising.

I’ve discussed the Dwyer case before. Dwyer sued to challenge a New Jersey advertising guideline preventing lawyers from using words of praise from judges in advertisements – unless the advertisement included the entire text of the judicial opinion.   As I mentioned at the time:

Quotes from judges are likely to carry a lot of weight with consumers, largely because of their scarcity value: consumers will assume that judges will dole out such praise sparingly, not realizing that these compliments are functions of the workaday business of ruling on fee applications, rather than some rarefied benediction.  It’s easy to see why the use of such quotes in advertising would be, as the state of New Jersey argued, inherently misleading without some form of disclosure.

However, as the Third Circuit noted, in a decision remarkable for its clarity on this nuanced and under-appreciated area of speech regulation (and contrary to the more expansive interpretation the DC Circuit adopted just weeks ago), disclosure requirements must be “reasonably related to preventing consumer deception.”  They also can’t be unduly burdensome.

The Court went on to find the New Jersey Guideline wanting on both counts.  There was no indication that presenting the entire text of a decision would in any way lessen consumer deception, and the requirement was incredibly burdensome in that it effectively prevented ANY form of advertising including such judicial plaudits.

It’s a classic screw-up on New Jersey’s part.  Using these statements in ads does lead to consumer deception.  What the state should have done is consider the first amendment issues and craft a narrower regulation. 1 Instead, the New Jersey regulators just went with the ham-handed approach to attorney speech regulation and called it a day.  It’s an approach, that despite a growing number of Circuit Court setbacks, remains distressingly common – despite the fact that consumers, attorneys and the bars alike all lose in the process.

 

Notes:

  1. The 3rd Circuit decision even offers a helpful suggestion of a disclaimer that would survive constitutional scrutiny:  “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.”

DC Circuit is COOL with Compelled Speech

Earlier this year, I noted two DC Circuit decisions on compelled speech – disclaimer requirements around country of origin labeling (“COOL”) for meat and “conflict free” diamonds. In each case, the court struck down the labeling requirements, applying the “intermediate scrutiny” standard for commercial speech regulation.

In a notable decision this week the DC Circuit, sitting en banc, reversed the COOL case. And in so doing, it explicitly overruled language in the “conflict diamond” decision applying the intermediate scrutiny standard.

Why is this important?  Because the court is saying that disclaimer and disclosure requirements are only subject to the lightest of constitutional burdens – the requirement that the compelled speech be “reasonably related” to the government’s interests and objectives.  This is a very low bar (and to make matters worse, the court declined to even hold that the government’s interest must be substantial).

The critical case at play is one I’ve written about before: Zauderer v. Office of Disciplinary Counsel.  Zauderer isn’t as clear as it could be on this point, but most courts (including the two panels of the DC Circuit that first heard the COOL and conflict-free cases) have read it to apply the lower bar of “reasonably related” only to those cases where the compelled disclosure is necessary to prevent deception.

The DC Circuit has now thrown the gates wide open, allowing virtual carte blanche forall manner of speech the government might want a business to disseminate.  This bodes well for proponents of things like lawyer advertising disclaimers and GMO labeling requirements, but it is certainly a setback for free speech.

Here’s hoping our very free-speech-friendly Supreme Courts steps in and clarifies that compelled speech, just like prohibitions on speech, should be carefully circumscribed.

UPDATE: Jonathan Adler at the Volokh Conspiracy has a more in-depth look at the decision and the vexing issues it raises.

“Publicity Rights” and Censorship

Did you realize Manuel Noriega was still kicking?  I thought sure the former Panamanian dictator was dead, but apparently he’s still around, albeit old, in prison, and apparently possessed of a litigious streak.

Eugene Volokh brings the news tNoriega Picturehat Noriega has filed a publicity rights lawsuit against Activision, claiming that a character in a recent “Call of Duty” video game is based on Noriega.  Volokh then goes on to show how the troubling state of publicity rights law creates all sorts of potential threats to culture.  If people have broad control over how their “images” are used – even when those “images” are composites, or used for parody – there will be a massive chilling effect.

And this isn’t only a concern for culture and the arts.  It also applies to news reporting and criticism.  I’ve seen firsthand how people who don’t want to be talked about online try to use publicity rights claims to shut discussion down.  Until and unless this increasingly-popular claim gets reined in – and the appropriate level is to limit it to commercial advertising – this danger is going to persist.

Social Media + The Law of Legal Marketing