Another attack on lawyer blogging and speech

This time in Louisiana, per ABA Journal:

A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs. The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not. The firm claims the rules would restrict its First Amendment right to speak freely about its trade.

Here’s the complaint, and the Wolfe Law Group blog on the case.

I wrote a couple of years ago about a similar move to shut down lawyer blogging in NY.  I noted that the question, still not determined, is what is considered “mere” commercial speech. Under Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) the Court, applying the commercial speech test, held that an interest in maintaining the professionalism of the bar was enough to support regulation of lawyer advertising.

What about lawyer blogs?  As I noted in my lawyer blogging paper:

[E]ven the most blatantly self-promoting weblog may include both important ideas and valuable information about legal services that deserve constitutional protection. Blogs therefore illustrate the close connection between the "market for goods and the market for ideas" that led Nobel Prize-winning economist Ronald Coase to question limiting constitutional protection for commercial speech (Advertising and Free Speech, 6 J. Legal Stud. 1 (1977); The Market for Goods and the Market for Ideas, 64 Am. Econ. Rev. 384 (1974)). Indeed, the Court has observed in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) that in a free enterprise economy "the free flow of commercial information is indispensable."

As a matter of policy, I’ve argued, in From Bricks to Pajamas: The Law and Economics of Amateur Journalism, 48 William & Mary Law Review 185 (2006), that the Web itself, fueled by Google searches, provides an easy way to check false claims. As I noted in my paper on lawyer blogging:

Scrutiny by millions of eyes on the Internet serves as a more powerful constraint on misleading information than an overworked bar committee's sorting through a mountain of filed blog posts. Moreover, regulation could discourage the most responsible, and therefore risk-averse, lawyers, thereby opening the field for the unscrupulous.

I suggested the following test if the Court decides to distinguish which lawyer communications get full First Amendment protection:

[T]he Court should consider the degree of interactivity the blog invites (for example, does it permit comments and trackbacks?), and the extent to which the lawyer uses the blog to express judgments and opinions.

But I also noted that:

[T]he issue of whether to apply the First Amendment to blogs might finally persuade the Court of the futility of trying to distinguish commercial and non-commercial speech for First Amendment purposes, and to abandon the "commercial speech" doctrine. Such a move could have significant implications in many areas of business, particularly including securities regulation.

As to securities regulation, see my and Butler’s, Corporate Governance Speech and the First Amendment, 43 U. KANS. L. REV. 163 (1994), a chapter in our Corporation and The Constitution.

So while regulatory moves like the one in Louisiana are a troubling nuisance, as an academic looking for clarification on commercial speech generally, and professional and securities regulation in particular, I say to these aggressive speech regulators, go ahead, make my day.