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.

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.

Social Media + The Law of Legal Marketing