There have been a number of posts around the blawgosphere on the decision in Stern v. Bluestone,  here and elsewhere. (New York Personal Injury Blog, Legal Blog Watch, New York Legal Update,  Volokh Conspiracy I and Volokh Conspiracy II).

There are two fascinating and contradictory themes in these posts.  Each commentary recognizes that while the delivery mechanism, the good ‘le fax machine, can be a huge annoyance when something comes across on your dime that you didn’t ask for, don’t want but now have to pay for, there is a far more important issue at stake here.

On the flipe side, much of the commentary simply can’t get past the fax problem.  To a large extent, they get stuck on wanting to recreate the law (including the first amendment, another one of those darn technicalities that seems to get in the way of stopping stuff that annoys us), mischaracterize the facts to fit their conclusions, or just ignore the issue in its entirety because, well, they just hate getting unsolicited faxes so much that they just don’t care about anything else.

But the  Wall Street Journal Blog has a post today that provides an interesting juxtaposition for the purpose of appreciating why the decision in Stern is so dangerous to lawyers. 

When it comes to advertising, lawyers have it harder than some other industries. That’s largely because a sizable sector of the bar generally regards ads as cheap and tawdry. As a result, state regulators have cobbled together a fairly restrictive — some might say amusing — set of rules on what lawyer ads can and can’t say.

For many, this is indeed an amusing situation because we don’t see how these restrictions and prohibitions apply to us.  After all, we don’t have billboards urging husbands to divorce their wives before it’s too late, or lions and tigers and bears to show how tough we are.  We’re much more dignified.

Unfortunately, this is unlawyerlike thinking, because we resort to an intuitive definition of advertising when we know, or ought to know, that when the book is hurtling closer to our own head, the courts will look for a legal definition.  Say, anybody wonder where they will find that legal definition of what constitutes advertising?

The problem here is that Stern v. Bluestone provides a definition, in one context, that will be applied thereafter to a multitude of contexts, particularly lawyer advertising regulations.  It won’t so funny then, now will it? 

Those who try to distinguish the decision, based upon the use of the fax, are hiding their heads in some very facile sand.  This is not a matter of statutory definitions, but purely caselaw driven in order to define and delimit lawyer advertising.  Once done, it will be the definition of lawyer advertising when the issue arises going forward with the variety of restrictions, prohibitions, whatever, that are invariably applied to attorneys.

Those who contend that the judges will never let this stand when it impacts their beloved law review articles, learned treatises, etc., may well be correct, but then we are left with an argument that bring further intellectual problems.  Is advertising defined differently for media we like as opposed to media we dislike?  Some would be very happy with this answer, despite its cynical approach to the law.

But the best answer is to define lawyer advertising in accordance with the first amendment from the outset, apply it consistently thereafter, and provide lawyers with at least something similar to that offered to the rest of society.  We will have enough problems dealing with lawyer advertising regulations and restrictions in the future without being saddled with this misguided definitional problem.  Forget the fax.  It’s the least of your problems.