Lawyer Blogs : Scholar’s view of commercial speech and First Amendment issues

Larry Ribstein, author of the blog, Ideoblog, and Professor of Law at the University of Illinois College of Law, provides an excellent summary on the First Amendment and lawyer blogs in a legal opinion letter (pdf) to the Washington Legal Foundation.

Ribstein notes that the Supreme Court has struck down overbroad regulation of lawyer advertising under the First Amendment but it is unclear how far states can go in regulating such advertising.

As to blogs, that would be determined by whether blogs are only entitled to the lower level of protection accorded commercial speech. Commercial speech can be regulated if it is not misleading and the regulation is necessary to advance a substantial government interest.

Ribstein concedes that blogs do promote the lawyer’s knowledge and skill to some extent. However, he says even blogs that are highly promotional include important ideas and information about legal services that deserve constitutional protection.

Ribstein also notes blogs may be treated differently than other commercial speech for two reasons.

One, because the blogosphere provides a strong correction method for correcting any inaccurate information. “Rapid dissemination of blog posts by RSS feeds throughout the Internet subjects them to broad scrutiny.” Such scrutiny is more powerful than government regulation.

Two, because blogs involve more self expression than advertising. The reason being that at least one Court has determined that profit-motivated speech is less likely to be chilled by regulation.

I’m still of the view that lawyer blogs are out of the bag and will not be stopped whether you give them only commercial speech protection or not. Too much to be gained in providing the public with helpful information not otherwise available.

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