State Bars: It’s Time to Give up Ad Regulation
You hear that, state bars? It’s the sound of the foundation crumbling beneath your creaky and outdated structures of attorney advertising regulation. While a number of states (including our more enlightened jurisdictions here on the West Coast) take a relatively benign approach to regulating attorney advertising, the seeds of speech repression still germinate in the rules kept on the books in these states. And other states – notably Florida – continue to roll forward with Kafka-esque levels of attorney speech regulation. Want to run an internet ad in Florida? You’ve got to wait 3 weeks, hope for approval from a kangaroo court made up of a mix of your competitors and non-lawyers and pay $150 for the privilege. And that’s just a glimpse of the thicket of ridiculousness awaiting those who would practice in the Sunshine State.
(photo by David Lat)
Miami’s own Brian Tannebaum and I wrote an article, published today in the Daily Business Review, exposing the farcical nature of the Florida Bar’s attempt to give lip service to Constitutional requirements while still maintaining its bizarre and repressive system of ad regulation. And what better to reinforce our point than yesterday’s U.S. Supreme Court decision in Sorrell v. IMS Health Inc.? In Sorrell, the Court expanded the commercial speech doctrine, finding that otherwise-truthful advertising cannot be restricted simply because the state wants to prevent the public from making what it believes to be bad decisions.
To whit: “That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.” This is precisely what bars like Florida’s seek to do via review boards and restrictions on common advertising techniques such as testimonials, comparative ads and the use of compelling imagery.
So Florida – and all of the other states burdening attorneys and increasing the cost of legal services while diminishing the amount of information available to consumers – your attempts to wave your hands over the constitutional issues while quieting the speech of your members through advertising review boards and Byzantine regulation cannot stand. It’s well past time to give it up. Prohibit false advertising. Aggressively go after offenders. But beyond that, respect the professionalism of your members and stop making them worry about whether their advertising tag line or marketing campaign violates one of your pedantic little rules.
