Author: Josh King

DC Circuit is COOL with Compelled Speech

Josh King

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

Josh King2 Comments

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.

NY Refuses to Reveal Identity of Anonymous Reviewer

Josh King1 Comment

Despite the fact that I almost always post things online using my real name, and despite the fact that attorneys can get themselves into trouble when commenting anonymously, I’m a big believer in the value of online anonymity.

Why would I feel this way?  After all, anonymity can provide a shield to all sorts of vile nonsense, hyperbole, and worse.  And the internet exacerbates this problem by making anonymous commenting much easier, farther in reach and (seemingly) free of accountability.

But then there’s this: some voices just aren’t going to be heard unless they can speak anonymously.  That’s one of the main reasons the U.S. Supreme Court has long recognized a first amendment right to speak anonymously.  As an adherent of the “more speech” solution to offensive comments, that’s good enough for me.[ref]But there’s more – there is also the fact that readers are more than capable of making credibility judgments based on whether the writer has put their name and reputation behind their statements.[/ref]

So I was please to see that a New York court denied a motion to “unmask” the identity of an anonymous commenter (court order here), in this case the author of a piece on Seeking Alpha that was viciously critical of a company called NanoViricides.

New York follows the coalescing approach to such unmasking motions, requiring that the plaintiff show a prima facie case for defamation in order to prevail.  In this case, despite some very inflammatory statements,[ref]Read the order or the post itself for the full list. Somewhat surprisingly, the company apparently did not complain about the post’s equating of the company’s name with a terrible Keanu Reeve movie.[/ref] the court found that there was no cause of action for defamation.

Besides offering a good discussion of the difference between statements of opinion and fact, the court’s order also offers this closing nugget:

Courts should protect against the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court order to silence their online critics, which threatens to stifle the free exchange of ideas.

I would caution would-be anonymous commenters that this statement should not be read as a license to defame or otherwise abuse review forums.  But it supports the proposition that anonymous speech is important, and that such speech should only be unmasked where the situation clearly calls for it.

Is “Ghost Blogging” Unethical?

Josh King3 Comments

Jayne Navarre has a post on “ghost blogging” today, but it conflates the practice with two other types of writing that are less of an issue.  Let’s break them apart:

  •  Ghost-blogging.  Professionally written posts for those too busy to regularly blog on their own.
  • Ghost-written website content.  Professionally written copy on a lawyer’s website.
  • Editing.  Professional editing of posts or other content written by the attorney whose name is on the blog or website.

Let’s address the last two first.  There’s nothing wrong with having a professional write the content on your website.  It’s marketing copy, subject to the advertising rules, and there is no pretense that it’s written by the attorney.  Editing is an even easier case.  We could all use a good editor, and there’s nothing wrong whatsoever with having another set of (usually uncredited) eyes helping us to make our ideas clearer and more incisive.

But then there’s ghost-blogging . . .

Put aside the fact that it’s utterly pointless to have a blog you don’t write yourself.  Forget that using third-party content robs you of the relationship-building and becoming-a-better-lawyer benefits offered by writing an actual blog (and to her credit, Jayne agrees with this, noting that blogs “are not the optimal domain a ghostwriter”).

Let’s just address the special ethical issues for attorneys considering having someone else blog under their name. There are two related ethics problems, the first having to do with Model Rule 8.4 and the second having to do with the advertising rules.

You see, there’s a crucial difference between ghost-blogging and other situations – like pleadings, articles and letters – where the labor of other writers may appear under a single lawyer’s byline, and this difference can be summed up in a single phrase: the intent to deceive.  An attorney using this method is effectively claiming someone else’s words as their own in order to bolster the attorney’s credibility.  That’s textbook deception, and it violates ABA Model Rule 8.4(c), which prohibits “dishonesty, fraud, deceit or misrepresentation.”

Does adding a disclosure of the ghost-blogging to the fine print in the blog’s terms of use solve the problem?  No.  While so doing may (or may not) address the issue of out-and-out deception, it also concedes the obvious: that the putative “blog” is really just a marketing vehicle cloaked in a put-on veneer of credibility, competence and engagement.

If you’ve read my section on blogging, you’ll know that a proper blog doesn’t fall under the attorney advertising rules as it is not “commercial speech.”  However, that safe harbor goes out the window if it turns out you’re paying someone else to create all of that writing under your name in an effort to build your image.  What you call a “blog” will be treated as the advertisement that it is – complete with the question of whether any disclaimer can truly cure the deception caused by an attorney claiming thoughts and expression written by others as his or her own.

Bottom line – if you don’t like to write, don’t blog.  If you do blog, feel free to follow Jayne’s suggestion and hire an editor.  But make sure you write your own damn posts.

What Do Lawyers Need to Know About NY’s Social Media Ethics Guidelines?

Josh King

That they shouldn’t be reading hand-wringing fluff like this recent piece in the National Law Review.

Look, I realize not every attorney wants to be the test case for the constitutionality of their state’s attorney speech restrictions.  But it would be nice if at least a few more attorneys stood up and advocated for their own First Amendment rights, rather than accepting at face value all of the restrictions the regulators try to foist on them.

Read on for a more critical look at New York’s Social Media Ethics Guidelines.

NC Attorney Goes 0-4 on Ad Claims

Josh King

In a classic example of Eric Turkewitz’ famous aphorism, “outsource your marketing, outsource your ethics,” a North Carolina attorney has just been disciplined for a number of sloppily-worded claims on her website.   The Grievance Committee of the North Carolina bar did not take kindly to attorney Stephanie Villaver’s “dog ate my homework” defense blaming her website designer.  The fact that she may have tried to cover up her own inattention to the matter surely didn’t help things, either.

However, my interest is in the advertising claims that formed the basis of her discipline.  On her website, Villaver stated that:

  1. She is “Jacksonville’s best car accident claim attorney.”
  2. She is the “Jacksonville, North Carolina’s personal injury specialist.”
  3. Her team “specializes in traffic ticket matters.”
  4. She can get a person “the settlement you deserve.”

The grievance committee found that each of these statements violated the Rules of Professional Conduct, to wit and in order:

  1. A claim that cannot be factually substantiated.
  2. Implication that an attorney is a certified specialist.
  3. Ditto.
  4. Guaranteeing results.

Again, it’s likely the case that the attorney’s evasive and non-responsive handling of this matter was the primary reason the Bar lowered the boom on her.  Had she immediately corrected the website, there’s almost no chance she would have been disciplined.

But the phrases in question – should they really form the basis of discipline?  The first and the fourth are not “claims that can be factually substantiated” or “promises of results;” they are nothing more than the same vacuous puffery that every business that has given up employing any creativity in marketing uses in a half-hearted attempt to reach new customers.  These are anything but effective advertising messages.  But that’s also why they shouldn’t be regulated by the bar: they aren’t going to cause any consumer confusion.  Every consumer knows how empty of meaning these terms are.

As for the use of the dread “specialist” term, North Carolina has fallen for the trap of expanding its regulatory reach beyond its constitutional limitations.  For although NC’s rule in this area (7.4) prohibits attorneys from indicating they have been certified as specialists in a given area unless they have such certification (a restriction the Supreme Court found lawful in the Peel case), the comments to the rules expand it to make ALL uses of the term “specialize” verboten – even when there is no implication that a third party has certified the attorney in that area.[ref]Yes, the comment to the rule states that “the use of the word “specialize” in any of its variant forms connotes to the public a particular expertise often subject to recognition by the state;” that, I daresay, is larding far too much significance onto a term synonymous only with focus and concentration in a particular subject.[/ref]

I don’t feel that badly for an attorney who didn’t pay attention to her marketing and then failed to quickly address the problem.  But I do wish the states would devote their enforcement resources to those engaging in real, consumer impacting abuses – and not those who simply resort to hackneyed marketing cliches.

Forget the “Right to be Forgotten”

Josh King

Earlier today, The EU Court of Justice ruled that Google must remove “excessive” and “irrelevant” links to otherwise-public and truthful information about individuals.  Sounds great, right?  After all, who needs a bunch of digital flotsam following them around for all time?

A lot of attention is going to be paid to the putative privacy rights at issue, and the additional cost and complexity that complying with this directive is going to lard onto Google and other search engines.   But focusing on such things is missing the larger point: how relatively well-intentioned laws like this burden free expression.

To be sure, there’s little value in a lot of historic crapola floating around online.  And most of us have at least something that could be dredged out of the cyber-ooze that we would prefer to see remain buried.  But we’ve long concluded – in this country, at least – that the “more speech” solution is better than trying to ban certain pieces of expression.  And that’s particularly true when it comes to truthful statements.

One of the great benefits of the American approach to free expression is the “breathing room” it affords for speech.  Once you start ruling certain types of speech out-of-bounds – even “excessive” or “irrelevant” speech – you’ve opened the doors to all sorts of expression being called into question.  The uncertainty and ambiguity around publishing something becomes far more than a matter of cost or complexity.  It makes speakers second-guess whether they are going to speak at all.  And it greatly empowers the censor’s veto over speech they don’t like, particularly when the speaker has deep pockets.  It’s a pattern seen time and time again in the UK, and one that will surely accelerate in Europe if this “right to be forgotten” picks up traction.

Although of little comfort to Google and other sites that operate internationally, these developments shouldn’t impact US-based speakers and online businesses.  As a limitation on truthful speech, there’s no chance that a “right to be forgotten” could comply with the First Amendment.  And even if someone obtained a foreign judgment for failure to comply with such a right, the federal SPEECH Act would render that judgment unenforceable in the US.

And lest you think I’m not sensitive to the privacy rights of those pushing for this right, well . . . OK, I’m not.  There are no privacy rights in public facts.  And no one should go out of their way to find such rights at the expense of free expression.

Here’s a better idea: instead of trying to erase the collective memory of the internet, privacy advocates should devote their energies toward creating a reputation – online or otherwise – that they can be proud of.  Even if it’s got a few bumps and rough edges.

 

 

 

Critiquing New York’s Social Media Ethics Guidelines

Josh King

Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.”   The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.

 

Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.

Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference.  So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.

 Guideline No. 1.A Applicability of Advertising Rules

The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply.   That’s fair, if a bit conservative.  Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance.  The question would really turn – as the California Bar noted – on the substance of individual social media updates.

As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:

Don’t include advertising messages in your social media updates.

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media

The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”).  Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”

That doesn’t make it right.  None of these “forbidden words” regulations are likely to survive constitutional scrutiny.  The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist.  Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention.  And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog.  It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.

But then the Guidelines get into more troubling territory.  First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”

The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.”  There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.

But “prompted?”  That’s far too overreaching.  Attorneys SHOULD be prompting their clients to leave online feedback for them.  And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. [ref]Again, thanks to 47 U.S.C. 230(c)(1).[/ref]

Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules.  If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it.  And failing that, they should consider whether a “curative post” needs to be made.

While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation.   I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.

2. FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA

Guideline No. 2.A: Provision of General Information

The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.

That’s sound advice, for the most part.  However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous.  It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline.  General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting.  There’s nothing unique about social media in this respect.

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.

The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation.  They seem complete, thoughtful and well-balanced.  And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.

More Compelled Speech Knocked Down

Josh King

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

Josh King

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)[ref]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.[/ref], 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.[ref]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).[/ref]

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.