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.[ref]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.”[/ref] 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.