Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”
I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.
How so? Consider:
- The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
- Requiring an occupational license to carry out these functions is a content-based speech restriction.
- Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
- Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.
The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.
It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.
However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.
But I think I’ve been wrong about that.
Why? Because Sherman notes something that is critically important to all media legal specialists. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:
The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.
This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).
So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?
The answer seems to be that they can’t.
- That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc). ↩