According to Greg Beck of Public Citizen, they have filed their responsive brief on behalf of the plaintiffs in the lawsuit regarding New York’s new advertising rules for attorneys. Initial briefs can be found here (along with other links) from my update last week. The Public Citizen response can be found here: ResponseMemorandum.pdf (There was no responsive brief from the State.)
The central argument of the plaintiffs is that restrictions on commercial speech cannot be upheld without evidence that the restrictions alleviate real dangers, and that less restrictive options are not available.
In the past, I have discussed the vagueness of some of the rules with respect to New York attorney websites, so I found this particular piece of the response interesting:
The rules do not define a “technique[] to obtain attention” or explain what sorts of techniques are “relevan[t] to the selection of counsel.” Nor do they provide any guidance as to what lawyer characteristics are deemed to be “unrelated to legal competence” or what sorts of statements “impl[y] an ability to obtain results in a matter.” The rules, by their plain language, are so broad in scope as to cover essentially every advertisement ever used by an attorney beyond a business card, letterhead, or resume. Because all advertising will potentially be banned, bar authorities will be able to pursue enforcement against any attorneys whose advertisements they find personally distasteful, while ignoring most other ads. Unfettered discretion to distinguish among different speakers invites arbitrary enforcement and inevitably chills free speech rights. Moreover, in the absence of clear guidelines, attorneys will not know how to comply.
I still don’t know the answer to this question I posed on January 24, 2007: Is My Family Photograph An Ethical Violation in New York?