Lawyer’s Victory for Free Speech in Advertising

Every profession benefits from marketing, but some career-oriented organizations frown on the practice for various reasons. Doctors and lawyers in particular are subject to this ridiculous stigma that conducting advertising campaigns is somehow unethical or amateurish. The state of New York went so far as to craft special regulations aimed at television ads for legal services, or at least, they tried to.

The proposed legislation would have been a blanket ban on a wide variety of lucrative tactics, such as incorporating client testimonials, using nicknames to indicate the firm’s success rate, parodies of judges, entertaining depictions of attorney-client relations, and other supposedly “misleading” practices.

Naturally, the attorneys at Alexander & Catalano challenged the statute prima facie on First Amendment grounds. Commercial speech does not currently enjoy the same protections as those of non-commercial expression, but the gap narrowed substantially in light of the Court’s landmark ruling in Citizens United v Federal Election Commission. The 2nd Circuit Court of Appeals ruled in the attorney’s favor, solidifying their confidence in consumer common sense. Today the Supreme Court followed suit by denying cert in this case.

Several media outlets are correctly identifying this as an important win in the fight for free speech. At the same time, they are misrepresenting the Court’s actions. A cert denial does not indicate agreement on behalf of the Justices. While statistical evidence demonstrates that they are more likely to hear a case that they will ultimately reverse, a cert denial says nothing about their collective opinions on its merits or the legal issues involved. It’s impossible to determine why the Justices chose not to rule on this matter, and simply assuming concurrence is tantamount to false reporting. Perhaps the concerned officials should consider implementing a set of rules to prevent unverifiable claims in journalism, especially when the text concerns topics of vital public interest, such as the justice system.

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