Category Archives: First Amendment

 

March 12th, 2010

2nd Circuit Rejects Most of New York’s Attorney Advertising Rules

The case concerning the constitutionality of New York’s attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit.

The decision is here: /Alexander-v-Cahill-2ndCirc.pdf. The case was brought by Public Citizen on behalf of upstate firm Alexander & Catalano. (Addendum: NY Lawyer Rules Are Unconstitutional)


The new rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. I had previously criticized some of those rules on First Amendment grounds.

The lower court had dumped those rules. The only part of the lower court’s decision that changes is the prohibition on portrayals of fictitious law firms, and that is just a minor modification.

These were the content based restrictions:

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

Those rules, however, can result in some bizarre results if they were implemented. For instance, an attorney’s photograph on a web site clearly has no relevance to the legal competence of the individual. So if it has no bearing on competence, is it prohibited? (See: Is My Family Photograph An Ethical Violation in New York? and New York’s New Attorney Ad Rules and First Amendment Issues)

The catch-all prohibitions on false and misleading advertising remain in place.

Moving to the 30-day rule, of particular interest is that part of the decision regarding targeted Internet ads. Even before the plane crash in Buffalo last year, I had discussed the myriad ways that savvy marketers might try to circumvent the 30-day rules by targeting the victims with Internet ads and websites, instead of the more traditional types of ambulance chasing, in a post titled Solicitation 2.0. I followed up after the Buffalo crash showing how Google ads and websites were being used (this post has a round-up of numerous posts I did on the subject)

Anecdotal evidence that I collected showed that the 30-day rule was effective in curbing chasing.

So from the opinion comes this:

[W]e conclude that ads targeting certain accident victims that are sent by television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to “an untargeted letter mailed to society at large,” which “involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession” as direct mail solicitations.
…

New York’s moratorium permits attorneys to advertise to the general public their expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident victims, so long as these victims are not specifically targeted.

It’s a big victory for the First Amendment. But with that will also come more lawyer tasteless ads that embarrass the profession.

hat tip: New York Law Journal

Updated: More coming in:
Lawyer Free Speech Given a Second Chance (Greenfield @ Simple Justice):

As much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn’t mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse.

New York Advertising Rules Held Unconstitutional (Sorensen @ The Ethical Quandary):

So let’s recap: William Shatner in a judge’s robe? Allowed. Fifty foot lawyers terrorizing Midtown Manhattan? Allowed.

Jim “The Hammer” Shapiro apologizing that he cannot “rip out the hearts of those of have hurt you”? Ok that last one was a trick — already allowed: http://www.youtube.com/watch?v=Q5hn8bhEpMY — but good idea? Maybe that is the better question.

 

January 1st, 2010

US Chamber of Commerce Wins Golden Turkey Award


A hearty congratulations to the U.S. Chamber of Commerce on this New Year’s Day. They won my prestigious Golden Turkey Award for the most ridiculous and hypocritical lawsuit of the year, after many hours of super-secret deliberations. The vote was unanimous, after I cast the sole vote just moments ago.

The competition was stiff, with the Chamber railing against everyone else bringing lawsuits but forgetting that they brought one of their own.

While I mentioned it’s suit in my Halloween-themed Blawg Review, the suit really does deserve to shine separately.

In October a group called the The Yes Men staged a fake news conference to pretend they were the Chamber and they had seen the light (angels and hosannas flow through background), and that they were reversing course on their opposition to climate legislation.

Not happy about being parodied, mocked and ridiculed, they sued the The Yes Men in a suit that is no doubt destined for the trash heap of hypocrisy, apparently forgetting about that First Amendment thingie.

Some posts on the subject here:

  • Chamber Suing Yes Men For “Commercial Identity Theft” (TPM-Muckraker)
  • EFF to represent Yes Men in Chamber of Commerce lawsuit (Boing Boing)

Congrats to the Chamber on their fine work, and welcome to the growing stable of tort “reform” hypocrites. We can always count on them to shoot themselves in the foot with over-the-top conduct.

My Golden Turkey, of course, is not to be confused with the book by that name about the worst movies in Hollywood, or any other Golden Turkey awards, of which I imagine a few others might exist. With a last name like mine, I claim squatters rights. Or something like that.

 

November 4th, 2009

Suit Against Above the Law Quickly Dismissed


As quickly as it started with a bang, the lawsuit by Miami law professor Donald Jones against mega law blog Above the Law and its Editor in Chief David Lat), has been dropped.

The suit had been widely lampooned around the legal blogosphere, both for its lack of legal merit as well as the resulting public relations debacle.

In today’s post, Lat showed more than a bit of class with this offer:

We have offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts. We have offered to keep the comments on that post closed or open, depending on his preference.

The case, in essence, ended pretty much the way I suggested yesterday. Jones bailed out of a poorly thought suit, and at the same time corrected the digital record that had last seen him being arrested on a prostitution solicitation charge. Those who Google him 5 years from now will no longer see an arrest of this type on Google’s first page.

Instead they will see this lawsuit. And if accepts the ATL offer, they will likely see his explanation.

As I noted in the comments yesterday, it was wise for Prof. Jones to drop quickly, since once ATL answered the suit, they would need ATL‘s permission to drop it. And ATL might have decided not to allow it without some other type of concession from Jones. (A tactic I used ten years ago defending one of the first internet defamation cases.)

First Amendment guru Marc Randazza was defending Above the Law, and “hoping to open up this can of whup ass I have lying around.” And if anyone has any thoughts about suing me for anything related to this blog, you should know I’ve got Randazza on my short list also.

 

November 3rd, 2009

Above the Law Sued By Law Prof (And How It Should All End)


Above the Law has been sued by University of Miami law professor Donald Jones. Others are opining on the details of how the suit arose, but I’m here to tell you how I think it will (or should) end.

First, the back story: Prof. Jones was arrested on a misdemeanor charge of soliciting a prostitute. Above the Law picked up the story and, in its legal tabloid fashion, ran with it making him their “Lawyer of the Day” and publishing the police report. They did an update on the not guilty plea, and then followed up again with a post entitled “The Nutty Professor: A Commemorative Graphic.” He has alleged the graphic is racist.

He sued ATL for $22M for portraying him in a false light, invading his privacy and violating the university’s copyright on his faculty photo. (His claims are set forth in this Complaint.)

Others are opining on the merits of the suit and the First Amendment issues. The links to those posts are below. But I’m going to zoom right past all that and try to hit the crux of the case, why it was brought, and how I think it should be resolved without further litigation.

Prof. Jones, you see, has had the charges dismissed. Yet when you Google “University of Miami law professor Donald Jones,” up pops those ATL posts on the first page, since ATL has some pretty impressive Google juice. And nowhere are there any posts from ATL about the charges being dismissed, because that post hadn’t been written. So it’s pretty safe to say that Prof. Jones is steamed. Big time.

Jones has had his Google reputation pretty seriously impaired. If repairing that reputation was his true motive, then by bringing suit, he has taken one step toward fixing it. Blogs all over are covering the story and now everyone knows the criminal case was tossed. That solves one problem.

But it creates another problem, that of a law professor starting a lawsuit that might have some pretty dubious merit (see below). And that isn’t so hot if you’re working the law professor circuit.

Working under the assumption that what Jones truly wants is his name back, and not $22 million, then the resolution of this dispute would seem to be pretty straightforward.

First, ATL publishes an “oops” (assuming they knew about the dismissal). Not for posting the initial stuff, all of which is likely protected under the First Amendment. Rather, I’m going to guess that someplace in the pit of his stomach, ATL founder and editor David Lat probably feels that if he is going to skewer a law prof that was arrested in this manner, that he probably ought to update his readers with news that the charges were dismissed. That doesn’t go to any legal duty, but to human nature. It’s just the right thing to do. So it may be that a mea culpa is in order for not updating the story in a more timely fashion.

(Of course, if they didn’t know, that wouldn’t apply.)

Prof. Jones, it should be noted, also wants the old posts taken down. I don’t see ATL and Lat caving in to that demand. But, if they elect to write a new post updating the status of the criminal charges, then those old posts should probably have an updated link at the bottom referencing the new post. Bloggers run these types of updates all the time.

So I’m going out on a limb here to suggest that if ATL runs an update on the charges being dismissed with a mea culpa (if that part applies) on not telling its readers earlier, that would probably suffice. Since that is the type of update should probably be done anyway now, and there is no downside to ATL and Jones has his reputation updated.

On the flip side, if ATL makes a motion to dismiss (and I presume this is already being worked on) and Jones loses, he doesn’t look so hot as a law prof. So Jones has a pretty good motive to accept those terms.

And if the two of them want to talk this over in a local tavern, I’ll buy the beer.

Others opining on the subject:

—————-
Update (11/4/09) Prof Jones has wisely dropped the lawsuit

Links to this post:

Marc Randazza, My Weird, Scary Hero
We’d have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy. And everyone else got to it first. Suffice it to say that the lawsuit …

posted by Patrick @ November 04, 2009 5:04 PM

LAW PROFESSOR SUES ABOVE THE LAW BLOG FOR “NUTTY PROFESSOR” POST
Parody image reference–with apologies to Jerry Lewis and Eddie Murphy. University of Miami law professor D. Marvin Jones —who made the pages of this blog when he was arraigned on charges that he allegedly solicited a hooker—is back in …
posted by Blogonaut @ November 03, 2009 12:07 PM

 

October 30th, 2009

Monster Energy Drink’s Monstery Conduct – Just In Time For Halloween

Monster Energy Drink’s lawyers seem intent on living up to their product’s monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don’t even make beer.

But that didn’t work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

  • Corporate monster picks on ‘Vermonster’:

    Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about “frivolous” lawsuits and demanding new laws to prevent people from suing big corporations.

  • Some Kind of Monster: Vermonster vs. Monster:

    All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art’s Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

  • A Corporate Monster vs. “the Vermonster”:

    Chance are that you’ve seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: “Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

  • MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:

    I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

  • Why Monster’s Trademark Claims Against Vermonster Stink

    Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont — is affiliated with Monster energy drinks? Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you’d appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.)

Perhaps you think my comments may lead to some confusion in the marketplace as to your actual ingredients. But that’s unlikely, since I don’t presume that readers of this blog are total morons.

I know that I shouldn’t have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.