When the case of Stern v. Bluestone was first discussed here, it was following a 3-2 loss at the Appellate Division, First Department, which held that “it defied common sense” to believe that a lawyer would write an essay on a legal subject and distribute it but for the purpose of advertising.  I took umbrage with that characterization.

Well, it’s no longer the law of the State of New York.  The Court of Appeals decision has come down, and the decision of the First Department was reversed, with costs.  That our names may be attached to our writings is no longer conclusive proof that lawyer speech is, by definition, commercial.  Not that the judges believe we’re altruistic, but they have chosen to give us the benefit of the doubt.

The case, arising under the Telephone Consumer Protection Act, was a flashpoint between those who hate junk faxes (which is pretty much everyone with a fax machine) and those who understood that this wasn’t about faxes at all, but about defining lawyers as self-promoting scoundrels worthy of only limited speech rights. 

It’s not say that some lawyers aren’t just scum, whose exercise of free speech brings disgrace upon them and shame upon the profession.  We certainly have our share.  But not all of us, and not every lawyer should be tarred by those lawyers who just can’t help themselves from the constant, nauseating self-promotion that the hypsters tell them will bring great wealth and success. 

This was a crucial battle fought to establish that there are lawyers whose speech deserves full protection.  And there are.  As Eugene Volokh and Eric the Turk have noted, the emanations from this case had the potential for disastrous consequences for all lawyer writings, from articles to the blogosphere.  No longer will the equation be “lawyer + writing = advertising.” 

Discussion of this case, and the TCPA, has raised many cackles in the past, with TCPA supporters arguing zealously that nobody, but nobody, has the right to send them an unsolicited fax.  Lest this issue arise again, and I get the rush of zealots who want to argue the same irrational arguments that have been tried and rejected by intelligent people (as happened to Eugene when he posted about this), the question has nothing to do with intrinsic right to annoy anyone or intrude on their fax machine, toner or paper. 

The TCPA prohibits what it prohibits, and it’s limited, by its terms, to commercial solicitations.  If you think it should cover everything, that’s fine but irrelevant to the issue in this case.  The law simply does not prohibit faxes that are not commercial solicitations, and that’s not a subject of debate.  It’s the law.  You can disagree all you want, but you’re wrong.  End of story.

Of course, that doesn’t mean you should go out and hype yourself under the guise of being a great humanitarian.  We know who’s full of it and whose not, as does everyone else.  And if there’s anyone out there who still uses a fax machine, don’t send anything out that hasn’t been requested.  It just pisses people off, whether you have a right to do so or not.