Posted by Eugene Volokh:
Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly
Promotes the Author's Professional Expertise
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244728864
Last year, I blogged about [1]Stern v. Bluestone, a New York decision
that found a malpractice lawyer's (and legal blogger's) "Attorney
Malpractice Report" newsletter to be advertising, because it
implicitly promoted the author's professional services. I pointed out
that the decision's rationale would apply to blogs, articles,
treatises, and other materials that likewise implicitly (and usually
deliberately) encourage people to hire the author. And though the case
involved penalties for unsolicited faxes, its rationale would equally
have applied to other speech restrictions:
And if the material is treated as "commercial speech," then the
consequence isn't simply that it can't be sent as an unsolicited
fax (something we law bloggers certainly don't do). Rather, we
might well become strictly liable for any false statements we might
post, rather than being protected by the "actual malice" test and
the like. We would be punishable for any statements that the Bar
might find to be "misleading." We could be required to post a wide
range of government-compelled statements, which usually can't be
required for nonadvertising media, but can be for advertisements.
And the government might even be able to impose broader
content-based restrictions on our speech, so long as the
restrictions pass muster under the weaker Central Hudson test
rather than the very demanding strict scrutiny test.
Today, [2]New York's highest court reversed that decision. An excerpt:
During the roughly 16-month period from November 25, 2003 through
March 29, 2005, plaintiff Peter Marc Stern, a solo practitioner,
received 14 unasked-for facsimile messages (faxes) from defendant
Andrew Lavoott Bluestone, a solo practitioner who specializes in
bringing attorney malpractice actions. Each fax was entitled
"Attorney Malpractice Report," and included Bluestone's contact
information and web site addresses. The body of each fax consisted
of a short essay about various topics related to attorney
malpractice: fee disputes with clients, the elements of
professional malpractice, liens, common causes of attorney
malpractice litigation, and unexpected circumstances in which
claims of attorney malpractice arise....
In 2006, when it amended its rules implementing the TCPA and the
Junk Fax Prevention Act of 2005, the Federal Communications
Commission (FCC) elaborated on what constitutes an "unsolicited
advertisement." With respect to "informational messages" via
facsimile, the FCC stated that
"facsimile communications that contain only information, such as
industry news articles, legislative updates, or employee benefit
information, would not be prohibited by the TCPA rules. An
incidental advertisement contained in such a newsletter does not
convert the entire communication into an advertisement ... Thus, a
trade organization's newsletter sent via facsimile would not
constitute an unsolicited advertisement, so long as the
newsletter's primary purpose is informational, rather than to
promote commercial products."
We conclude that Bluestone's "Attorney Malpractice Report" fits the
FCC's framework for an "informational message," and thus the 14
faxes are not "unsolicited advertisement[s]" within the meaning of
the TCPA. In these reports, Bluestone furnished information about
attorney malpractice lawsuits; the substantive content varied from
issue to issue; and the reports did not promote commercial
products. To the extent that Bluestone may have devised the reports
as a way to impress other attorneys with his legal expertise and
gain referrals, the faxes may be said to contain, at most, "[a]n
incidental advertisement" of his services, which "does not convert
the entire communication into an advertisement."
This doesn't directly deal with the First Amendment question of
whether such faxes are less-protected "commercial speech" (a term of
art which roughly means "commercial advertising") rather than fully
protected speech. But at least it sets aside the lower court decision
that they are indeed less constitutionally protected.
I should note that there are plausible arguments that the government
might be free to bar all unsolicited faxes, commercial or otherwise --
or implement a "do not fax" list that applies equally to all such
faxes -- on the grounds that they wrongly trespass on recipients'
property and consume recipients' resources. But the law doesn't didn't
do that: Rather, it limits itself to commercial advertising. It's
therefore important (both to the applicability of this statute and to
the applicability of other rules) to properly distinguish what
constitutes restricted (and more broadly restrictable) commercial
advertising, and what doesn't.
References
1. http://volokh.com/posts/chain_1202343623.shtml
2. http://www.nycourts.gov/ctapps/decisions/2009/jun09/87mem09.pdf
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