The blogging as free speech debate heated up this week with the filing of a federal complaint by the Wolfe Law Group, a construction law firm, against the Louisiana rules against lawyer advertising. The gist of the complaint is that the rules inhibit free speech by lawyer blogs:
The Wolfe firm enjoyed an advertising coup of sorts by this filing, which Kevin O’Keefe suggests may have been its purpose in the first place, since he views these “sky is falling” contentions that lawyer advertising will spell the death of blogs to be overblown at minimum.The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.
Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums.
I am not anti lawyer advertising. I view many state’s attempted clamp down on lawyer advertising as the old boys trying to prevent upstart law firms from getting work via cost effective client development or judges who find personal injury lawyer ads distasteful. I’m also all for law firms protecting our right of free speech. But I am not about to leave my common sense at the doorstep when looking at proposed ethics rules and the risk that they outlaw lawyer blogging.To the Wolfe action, Kevin says “horse pucky.” I swear, those are his actual words. You know how those Seattle guys have potty mouths. But Kevin’s point is clear. We’ve been through these “sky is falling” claims before, and yet the sky remains happily above our heads, doing whatever skies are supposed to do up there. And still we blog.
But there remains a few questions unanswered. Just because we’ve dodged the bar oversight in the past doesn’t mean that we will do so in the future. Distinguishing the practical from the theoretical, it seems impossible for the entity responsible for lawyer discipline in each state to have the wherewithal to police every lawyer blog or website. With constant posting, they would require a staff of thousands, checking daily, word by word, for impropriety. Or require us to submit posts for their “approval” beforehand, with or without a fee for the pleasure.
There may come a time when grievance committees employ software to check the blawgosphere for impropriety, allowing them to do what manpower precludes them from doing now. More likely, the grievance committees may create the rules and then wait for complaints to come in before acting. At some point, I expect that the lawyer advertising rules will be applied to websites and blogs. In some ways, I think it should.
Orthogonally, someone like me is as great risk of being the target when this happens. I inexplicably tend to anger people on occasion with my commentary, and fear that someone who has been maligned will rush to the head of the line to complain about me. The more frank one’s posts, the more likely to make enemies. I may have one or two.
It would present an onerous burden to have to defend against a grievance for every post I write, since I tend to post with some regularity. More importantly, if the threat of having to defend my freedom of speech against charges of advertising, would it cause me to change my voice? If I was afraid of pissing people off, Simple Justice would have no reason to exist.
With this in mind, I should strongly support any and all efforts to protect the first amendment rights of lawyers to blog, to speak their minds, to express themselves, to engage in free and open discourse. But there’s something bugging me.
I checked out the Wolfe Law Group’s blog. There are some posts that are arguably substantive, though tainted with the requisite scent of self-promotion. But most are flagrant, bald-faced advertising, with no purpose other than to get business. Check this one, or this, or perhaps this one. Some would call this bad blogging. Since I am non-judgmental, I just find it horrifically unsavory. But it’s obviously what they want to do, and how they envision blogging.
Simple Justice, I suggest, takes a little different approach. Where the Wolfe blog is, to a very large extent, open and notorious advertising, it does not fall into what I consider the category of blog. They can call it a blog. They can throw in the occasional substantive post, but when its facial purpose is to promote the ready availability of their services, it is not a blog. It is advertising.
If someone is going to challenge lawyer advertising rules in the name of free speech, it might be best if they are not engaged in flagrant advertising. The Wolfe Group doesn’t reflect this blog, its content, purpose or nature. When they argue their position, particularly in the face of what they put online, I fear this could do grave harm to the cause of lawyer free speech and blawgs.
And though I’m somewhat reluctant to write these words, because as much as I hate active lawyer marketing, I’m no fan of governmental prohibition of free speech, the content of the Wolfe Law Group’s so-called blog is clearly commercial speech offering the ready availability of legal services, and subject only to intermediate scrutiny. Simple Justice is different.
If someone is going to fight the good fight to prevent overbroad prohibition of lawyer free speech, they should be my hero. The Wolfe Group, unfortunately, is not my choice for a hero, and their content does not reflect the blawgosphere I know and appreciate.
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Few of the central figures in Bill of Rights decisions remind me of Rosa Parks. Gideon (the plaintiff, not that nice Mr. Strumpet), while a jerk, was above average; Ernesto Miranda was more typical, being a serial rapist and total scumbag.
On that scale, these guys don’t look too bad.
Maybe we could get them all together for a groups shot. Yes, yes, I know that Gideon (not that nice Mr. Strumpet) and Ernie are dead, but there’s a price to pay to join that strata in the annals of legal history.
“Flagrant advertisement” is protected by the First Amendment, even when lawyers do it. I wouldn’t do what you describe on my blog or otherwise, but I can’t think of a better bunch to test restrictions on the rights of attorneys to do what everyone else does, and let the existing ethics rules and the market of ideas — not self-interested competitors of that firm with an incentive to shut down web-savvy or even obnoxious competition — mainly regulate the profession.
Protected? Yes. Protected like non-commercial speech, subject to strict scrutiny? No. I assume that you know how 1st Amendment protection works, right? The last thing lawyer bloggers need is to be painted as having second tier free speech because the poster-child is a flaming self-promoter.
This would make Wolfe a good test case only if one assumes that all lawyer blogging is commercial speech and therefore only subject to intermediate scrutiny. Since I don’t believe that’s the case, and surely hope it isn’t for those of us who aren’t blogging for dollars, then the outcome of a test of the Wolfe Law Group could spell disaster for the rest of the legal blawgosphere that doesn’t blog for self-promotion but would be tarred with the same ruling. Your idea of the “rights of attorneys” and mine may be quite a distance apart if active marketing defines all attorney blogging.
And where does “self-interested competitors with an incentive to shut down the firm” or “obnoxious competition” come into play? That’s an awfully strange view of the judges engaged in regulation of the bar. I sincerely doubt that they are in competition with Wolfe.
Hi SHG – Scott Wolfe here. First, I want to state I do not take any offense to your post (or Kevin’s), as I think that general discourse about this matter is very important to the cause in general.
However, I wanted to chime in and properly characterize our suit. I’ve noticed that those who have criticized our efforts have likely not read the fed. complaint, or the Louisiana advertising rules at controversy.
Our firm’s 1st Amendment efforts are two fold:
1) In our federal complaint we do not allege that the new ad rules “forbid blogging.” The rules, in fact, do not.
While not exclusively so, the heart of the problem is with Rule 7.6(d), which attempts to regulate “All computer-accessed communications concerning a lawyer’s or law firm’s services.” This is explained in a bar-provided handbook as “All computer-accessed communications concerning a lawyer’s or law firm’s services, other than the Web site of home page of the lawyer or law firm.”
Therefore, the contents of our actual website (wolfelaw.com) – which your criticize – are likely exempt. We specifically highlight in the complaint that our actual website is likely exempt (Paragraph 29).
This does eliminate problems for general websites & blogs (i.e., the post about JD Supra that you claim is a ‘fragrant advertisement’ would be prohibited entirely because it “resembles” a legal pleading – Rule 7.2(c)(K).)
The bigger problem, though, is with the bar’s broad classification of what constitutes an advertisement.
The problem is with our firm’s posts on avvo.com, lawguru.com, twitter.com/wolfelaw, jdsupra.com, youtube.com, linkedin.com, etc.
By stating that “Wolfe Law Group practices in the area of construction law” in this blog post comment, for example, we would technically be required to submit it to the bar for evaluation, pay $175.00 and include all of the information mandated by Rule 7.2. Also, the use of RSS feeds would possibly fall within the broad purview of the rules.
Wolfe Law Group is not looking to be the poster-child of the 1st Amendment. We’re concerned about how the rules affect the communication we do have with clients, the public and other attorneys.
Wolfe Law Group is also not representing that the new ad rules “forbid blogging,” or that the “sky is falling.”
This misconception, however, is likely the result of the following, our second effort:
2) In conjunction with the suit, we launched http://www.protectspeech.com, and are currently starting Blog No Evil, Inc. – a non-profit that will promote an organization’s right to participate in the “blogosphere.”
By pulling everything “interactive” and “social media” under the “blog” or “blogosphere” label, our federal complaint has been mis-characterized as a fight against LA’s “ban on blogging.”
In fact, its a fight against LA’s over-broad regulations of non-commercial speech (which we do participate in), and a general effort to protect blogging and speaking by organizations. Hope this helps.
Scott!
Thanks for stopping by and letting us know more about your position. It is an important discussion to have and regardless of where people come out on it, it’s best that everyone be fully informed and that all sides have the opportunity to make their best case. I do note that I included links to both your website and your blog, and the references to flagrant marketing were specifically to your blog posts.