Commercial Speech, "Irrational" Clients, and the Persistence of Bans on Subjective Lawyer Advertising

By Stern, Nat | Brigham Young University Law Review, September 1, 2009 | Go to article overview

Commercial Speech, "Irrational" Clients, and the Persistence of Bans on Subjective Lawyer Advertising


Stern, Nat, Brigham Young University Law Review


Precisely because bans against truthful, nonmisleading commercial speech rarely seek to protect consumers from either deception or overreaching, they usually rest solely on the offensive assumption that the public will respond 'irrationally' to the truth.1

I. INTRODUCTION

Notwithstanding a string of defeats in die United States Supreme Court,2 the organized legal profession has hardly relented in its efforts to limit lawyer advertising.3 Among the most dubious restrictions to which many states have clung is the prohibition on "self-laudatory" claims or other subjective representations by attorneys.4 This Article argues that a categorical ban on such claims rests on premises at odds with the Court's commercial speech jurisprudence. In particular, the prohibition clashes with the Court's disapproval of sweeping restrictions rooted in paternalistic assumptions about the public's capacity to assess commercial advertising. Admittedly, the Court has indicated some latitude for states to curb representations about legal services that are not susceptible to objective verification. Given the broader foundations of commercial speech doctrine, however, these pronouncements cannot be taken to support wholesale suppression of attorney advertising that exceeds the narrow presentation of data. On the contrary, ambiguities in the application of commercial speech principles to such provisions should be resolved in favor of the doctrine's fundamental impulse in favor of expression. Part II provides an overview of the Court's commercial speech doctrine, including discrete treatment of cases involving lawyer advertising and solicitation.5 Part III sets forth central tenets underpinning the Court's approach to commercial speech. Part IV examines the tension between these principles and categorically forbidding selflaudatory and other subjective attorney advertising.

II. COMMERCIAL SPEECH IN THE SUPREME COURT: AN OVERVIEW6

Qualified enthusiasm for First Amendment protection has marked the Court's modern approach to commercial speech. Indeed, the Court has emphasized that larger principles protecting freedom of expression substantially govern commercial speech. At the same time, a subsidiary strain has ceded to government-enhanced regulatory authority said to arise from the distinctive features of this category of expression.7 These dual impulses are displayed by the ambivalent character of the Court's two seminal decisions in the area, the larger trajectory of the Court's jurisprudence, and the specific treatment of restrictions on lawyer advertising.

A. Virginia Board of Pharmacy and Central Hudson: Foundations of a Two-Track Commercial Speech Doctrine

Two decisions, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,s and Central Hudson Gas & Electric Corp. v. Public Service Commission? supply the origin and framework of the Court's commercial speech doctrine. While arguably not entirely compatible,10 the Court's reasoning in both cases continues to inform its disposition of commercial speech issues. Depending on their construction in a given instance, both holdings contain the seeds of both robust protection and diminished status for commercial speech.

In Virginia Board of Pharmacy, the Court explicitly embraced the proposition that First Amendment principles govern the regulation of commercial speech.11 Rather than treat Virginia's ban on advertising prescription drug prices as ordinary commercial regulation,12 the Court invoked a number of First Amendment values to strike down the prohibition. Prominent among these was self-realization.13 With access to relative prices, reasoned the Court, consumers least able to bear the costs of prescription drugs could gain "the alleviation of physical pain or the enjoyment of basic necessities."14 The Court also linked the free flow of commercial information to the First Amendment's fundamental concern with democratic decision-making.

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Commercial Speech, "Irrational" Clients, and the Persistence of Bans on Subjective Lawyer Advertising
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