Category: Regulation

Early last year, the 9th Circuit made an intriguing ruling: that commercial speech regulation required an even higher showing of necessity than that long-recognized by the “intermediate scrutiny” standard.  Unfortunately, in an en banc opinion this week, the court reversed its decision in RDN v. Appelsmith. 

That’s a shame, because there’s been a lot of noise that the commercial speech doctrine could use some freshening up and additional protection from overreaching regulation. And while the appellants here have vowed to take this case to the Supreme Court, the odds of getting that kind of review are always very long.

Unless SCOTUS wants to use this case to deal with the increasingly-large pit of vagueness in the commercial speech doctrine that is compelled speech. Is compelled speech subject only to rational basis review? Something more? Or are all speech requirements – compulsions and restrictions alike – subject to the same test of constitutional validity? A test perhaps more demanding than that laid out by Central Hudson?

Here’s hoping the Supreme Court decides to give us an answer.

Last month, I did something I hadn’t done in 21 years. I put on a suit, grabbed my notes, and argued a case in court.

And not any old court: this hearing was in front of the Florida Supreme Court. The Court was hearing a petition by the Florida Bar to change its lawyer referral service rules.

In our view, the Bar’s changes were  bad for on many levels. They didn’t address the problem at hand (alleged cross-referral of legal clients for unneeded medical services). They created a cumbersome new set of compliance obligations. They watered down protections currently applicable to Florida lawyer referral services. And, by bringing virtually all forms of legal marketing within the ambit of the rule, they threatened to chill the availability of legal information and the willingness of Florida lawyers to offer innovative new services to the public.

So Avvo filed comments opposing the Bar’s rule change. We weren’t the only ones; it seemed that no one liked what the Bar was proposing. When it came down to it, Avvo was one of four parties arguing against the rules, and I was allotted all of 6 minutes with which to do so.

Appellate arguments call for a tricky balance. You’ve got to be ready to make your argument, for the allotted time, without facing a single question. But you’ve also got to be ready to abandon your prepared work and face down questions from the bench for as long as the Justices desire.

I’ve always preferred the latter, and as it turned out, the Court had lots of questions for me. The video is available here; my bit starts at 23:00. As you’ll see, the Court was far more interested in hearing about Avvo and online legal marketing than it was about my nuanced First Amendment arguments.

It was gratifying – and fun – to argue in court again after so many years. And the Florida Supreme Court’s Greek Revival courtroom in Tallahassee was an inspiring venue in which to do so.

The capper came last week when the Court rejected the Bar’s proposed rules. While I’d like to claim that result on the force of my advocacy, it was the only reasonable outcome possible. The Bar had been asked to address a specific issue, and had used that opportunity to attempt wholesales changes to the rules.

It’s a favorable outcome, and I’m happy to see it. But at the same time, the process demonstrated how far from effective Bar regulation can be. In any other agency, regulatory changes would go though an administrative law process – with workshops, open hearings, and comments – to vet issues before adopting new rules. Florida, like many states, devolves that process to the Bar. The final arbiter is then the Supreme Court, which deals with the matter in much the same way it would treat any other adversary proceeding.

It’s not that such a system is doomed to failure. It could work, given enough structure, direction, and discipline by those involved. But the odds are long. Market participants drive the process, and these lawyers often have parochial interests. They also rarely have experience with administrative rulemaking. And the Florida Supreme Court sits at a remove, only dealing with the process near its conclusion.

For the Supreme Court to actively supervise this work – work that impacts the availability of legal services to the public – it’s got to get more involved. It must oversee and direct the Bar throughout the rulemaking process. This could include hiring out neutral professionals to run rulemaking. Or having a subcommittee of Justices deeply involved throughout (and there’s some indication in the Court’s order that it plans to do something along these lines).

This problem isn’t unique to Florida. Most lawyer regulators do their rulemaking in a similar way. But in a state with a bar as large and fractious as Florida’s, the weaknesses of the process are particularly evident.

Need a license to perform your chosen occupation? More and more Americans do. While licensing has long been a requirement for doctors and lawyers, it has spread far wider – licensing is up 5-fold in the last 50 years or so, and around 25% of us work in professions where a license is required.

I’m not going to get into all of the reasons why this spread of licensing is counterproductive, read this Brookings Institute report if you want to dig deeper. Rather, I’m interested in how the spread of licensing is speeding toward a collision with the First Amendment – a collision that will likely change how we think about what’s included within the monopoly our legal licenses grant us.

The tension between occupational licensing and free speech rights is particularly fraught for lawyers, as so much of what we do involves verbal and written expression. But outside of lawyer advertising, there’s been next to no guidance from the courts about the limits of regulators to compel or prohibit the speech of lawyers.

Or the speech of any licensed profession, for that matter.

But with so many occupations now being licensed, and so many regulators imposing and enforcing rules, the Supreme Court’s opportunity to take this issue on may be fast approaching. Recently, we’ve had psychologists told that they couldn’t write newspaper columns, veterinarians told they couldn’t give advice online, and mathematicians told they couldn’t . . . math.

Oh, and Florida doctors have only just recently fought back efforts to restrict their ability to ask patients about guns in the home, and California now requires pregnancy counseling offices to provide government-mandated information about abortion services.

So, lots of efforts abound to restrict professional speech. But what do we know about the acceptable limits of professional speech regulation? Precious little. There’s Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C., and some lower court cases. My best guess from these cases is that professional speech regulation requires something in the neighborhood of the “intermediate scrutiny” review that applies to commercial speech.

But there may end up being a difference for regulation of those who aren’t licensed. It’s one thing for regulators to restrict the regulated, but what gives them the right to tell the rest of us what we can and cannot say?

Watch this; it has major implications for the monopoly that lawyers have on providing legal advice. After all, legal advice is just someone expressing their opinion. It’s hard to see what rationale exists for restricting such opinions to lawyers.

The 11th Circuit in Florida has just issued its en banc ruling in the infamous “Docs v. Glocks” case. This is something like the third or fourth decision in this case, which addresses the question of whether and to what extent doctors can ask their patients about firearms in the home.

As I’ve written about before, my interest in the case is what it tells us about state regulation of professional speech. Such regulation is an open area, and obviously important to lawyers and the legal profession. After all, most of what we do professionally consists of “speech.”

Today’s decision – which reverses the prior panel, thus striking down the speech-offending portions of the law – spends a fair bit of time parsing the meager state of occupational speech regulation law (much of which consists of Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.). In so doing, it affirmatively rejects the appropriateness of “rational basis” review of occupational speech-limiting regulation, while leaving the ultimate question (which is it, intermediate or strict scrutiny?) hanging:

Because these provisions fail to satisfy heightened scrutiny under Sorrell, they obviously would not withstand strict scrutiny. We therefore need not decide whether strict scrutiny should apply.

Darn it. Still, it’s good to see a decision solidly finding that professional speech is entitled to First Amendment protection – even if it can’t quite tell us how limited the state’s power to regulate might be.

I launched this blog as a place to keep all of my notes and thoughts on the professional regulation of attorney speech, a topic largely (but not entirely) informed by the commercial speech doctrine. The doctrine – which permits the government to limit or compel speech under a laxer set of standards than would apply to “core” expression – labors under an unfortunate name. Too many people, including far too many lawyers, think that the doctrine applies to ALL speech by businesses.

This is, of course, demonstrably wrong. The vast majority of media outlets in the U.S. are “commercial,” insofar as they are owned by for-profit entities. In fact, many of these entities are the corporations that people (many of whom surely know better) inveigh against when gnashing their teeth over the Supreme Court’s Citizens United decision. As the Supreme Court has held, time and again, the fact that something is published for commercial reasons (i.e., to make money) does not make it commercial speech. Because if it did, we couldn’t have an independent media.[ref]For additional context and background on this, check out Avvo’s 2016 federal court win, which turned on this very question.[/ref]

And it seems to me that right about now is when we really, really should see the benefits of an independent media. We’ve got a new administration that has explicitly called out the media as the “opposition party,” that traffics in falsehoods, lies, and gaslighting, and which seeks to punish those outlets that aren’t deemed sufficiently obsequious to its agenda.

This is why it’s particularly galling that people on the left continue to be some of the loudest voices for chipping away at media independence – or free expression rights in general. We’ve seen in recent days an MSNBC journalist suggesting that the federal government should regulate to prevent “fake news,” and even my neighborhood college campus is now up in arms over “hate speech.”

While I could fall back on my lofty exhortations about the value of a robust First Amendment, I would ask all of these would-be censors a simpler and more pragmatic question:

Is this the government you want to let decide what you can and cannot say?