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N.Y. Advertising Laws Held Unconstitutional

Earlier this week, Nicole Black of Sui Generis was one of the first blogs to break the news that federal district court Judge Frederick Scullin ruled that some new attorney advertising rules violate lawyers' free speech rights. According to this New York Times story, the ruling resulted from a suit by Public Citizen on behalf of Alexander & Catalano, a personal injury firm in New York that referred to itself as a heavy hitter (a huge no-no not just under the newly issued New York rules but in Nevada as well). Among other things, the judge found that the limits were not justified, since there was no "statistical or anecdotal evidence" of consumer complaints about deceptive practices. 

So which of the New York rules are affected by the ruling? In a follow-up post, Black reports that Rule 1200.6(c)(1)(3)(5) and (7), which prohibited use of endorsements or nicknames and monikers, and Rule 1200.6(g)(1), prohibiting use of pop-up ads, were declared unenforceable -- at least, pending the state's likely appeal.

Meanwhile, there's still celebration in the blogosphere, which had criticized the New York rules early and often and perhaps helped contribute to the favorable result. Larry Bodine describes the ruling as a victory for the First Amendment. And David Giacalone interrupts his punditry to offer his congratulations to the Public Citizen team. At the same time, Giacalone adds this postscript:

I am a bit disappointed that Judge Scullin repeats the unproven assertion that “the public perception of the legal profession has been greatly diminished” by ads deemed “tasteless” or “obnoxious.” If the NY Bar Dignity Police are feeling unappreciated after the decision in Alexander v. Cahill, they should consider moving to France, where the new government is looking for people who do less thinking.

As mentioned earlier, Nicole Black predicts an appeal by the state, and I agree that she's probably right. At the same time, the online world is moving so quickly with even once "far-out" technologies regarded as unprofessional like YouTube being used by conventional institutions like the Supreme Court and presidential campaigns. By the time the appeal winds its way through the New York appellate courts, even those judges will be wondering why someone thought to make a big deal out of Internet pop-up ads.

Posted by Carolyn Elefant on July 25, 2007 at 07:19 PM | Permalink | Comments (4)


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