Judge Sotomayor and the First Amendment (And the Pending Case)

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals is on the short list for Justice David Souter’s soon-to-be-vacant Supreme Court seat. At SCOTUSblog, Tom Goldstein reviews some of her civil appellate opinions, and notes that “Sotomayor has considered First Amendment issues relatively infrequently.”

It’s worth noting then, that she currently has a First Amendment case before her that I’ve discussed with some frequency on this blog, and one that may ultimately affect all attorneys: The issue of New York’s new attorney advertising rules in Alexander & Catalano v. Cahill.

The case, argued January 22nd before a three judge panel comprised of Sotomayor, Guido Calabresi and John M. Walker Jr., deals with a number of attorney advertising and anti-solicitation ethics rules that went into effect in 2007 (see, New Attorney Advertising Rules (Is This Blog an Advertisement?), which includes a 30-day moratorium on attorney advertising after a mass disaster. That particular rule was upheld in the court below. The problem with that regulation, as I’ve discussed, is not so much the 30-day time period, but the difficulty in defining advertising in the context of the web. Just trying to figure out who must comply is often difficult.

Subsequent to oral argument, the real-world effects of the regulation were seen when Continental Flight #347 went down in Buffalo, and I followed the myriad ways that advertising/solicitation could take place that might violate the rule. And that the very ambiguity of trying to figure out where the bright line of solicitation exists raised First Amendment issues. Some of the those posts are here:

It is now almost five months since argument was made. Whether a decision comes out while the SCOTUS nominating waiting game goes on, or after it is over, remains to be seen.

(My comments on one of the qualities the nominee should have are here: The SCOTUS Nominee and The Tissue Box Test)

Links to this post:

“Judge Sotomayor and the First Amendment (And the Pending Case)”
“Judge Sotomayor and the First Amendment (And the Pending Case)”: Eric Turkewitz has this post today at his “New York Personal Injury Law Blog.”
posted by Howard Bashman @ May 18, 2009 12:42 PM


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