Uncategorized – Page 4 – Socially Awkward

Jordan Jams on Jewel

March 3, 2014July 18, 2014 Josh King

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.

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

February 11, 2014October 22, 2014 Josh King

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.

A Socially Awkward Launch

December 20, 2013 Josh King

Befitting the name, I’m launching “Socially Awkward” somewhat quietly, with an eye to getting feedback first from a number of folks who I can count on to tell me what’s missing, what I got wrong, etc. And I really would like to get this input. Leave a comment or send me an email. This site has its origins in my efforts to organize my notes, so the more complete I can make the info, the more developed I can make the points, the better. Besides identifying obvious errors or gaps in my thinking, what other material would benefit attorneys interested in the intersection between bar regulation of speech and the first amendment?

I haven’t included many district or circuit court cases on attorney advertising – what are the notable exclusions?
Are there commercial speech cases involving other industries that are applicable (particularly if they involve non-advertising expression)?
Are there historical antecedents or other considerations to help explain the peculiar reach of attorney advertising regulation?

Thanks again for reading. I look forward to adding to the materials here, and to engaging with others interested in free speech issues – even for attorneys.