Two New York blogging attorneys found themselves in a decision today out of our highest court, in Stern v. Bluestone. Andrew Bluestone writes the New York Attorney Malpractice Blog, and was sued when he sent his newsletter via fax to local attorneys. He was defended by Scott Greenfield, of Simple Justice fame, who argued the matter in the Court of Appeals.

And since SCOTUS nominee Sonia Sotomayor may play a roll in the First Amendment issues I'm about to discuss, this could be particularly interesting.

Bluestone was sued by Peter Stern, another local practitioner, for violating a federal law (the Telephone Consumer Protection Act) that prohibits using a fax for unsolicited advertisements. But was his newsletter regarding attorney malpractice an advertisement for his services? Both the Supreme Court (our trial level court) and the Appellate Division, First Department (intermediate appellate court) said it was advertising. You can read some of that prior blogospheric commentary here:

• Judge Rules Attorney's Faxes Are Prohibited Advertising (NY Law Journal, 9/6/06)
• Bloggers Head to NY High Court As Both Defendant and Counsel in First Amendment Lawyer Advertising Battle (2/1/08 on this blog)
• $21,000 Award Upheld Against Attorney Who Faxed Unsolicited Ads (NYLJ, 2/4/08)
• What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers (Carolyn Elefant @ Legal Blog Watch, 2/4/08)
  
• Is the How Appealing Blog "Commercial Speech" and Thus Less Constitutionally Protected? How About This Blog? (Eugene Volokh @ Volokh, 2/6/08)
  
  

Most troubling about the First Department decision was this:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. . . .

Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.

Why is that troubling? Because blogs may also come under regulation from New York's advertising and anti-solicitation rules, albeit it in a different context. As Greenfield noted back on his own blog in February 2008:

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers. It was held to be advertising, for only commercial solicitations fall within the TCPA. With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Every blog that has a name on it, in other words, could be deemed advertising. There are a bazillion shades of gray between an article that appears in a legal journal and what you read here. How, exactly, does a court make that determination of what the primary purpose of the publication is?

But today the Court of Appeals reversed, holding that the newsletter is not an advertisement. The Court noted that the FCC had this opinion on the subject of what is, or is not, an advertisement:

so long as the newsletter's primary purpose is informational, rather than to promote commercial products"

The Court then went on to decide that:

In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement" of his services, which "does not convert the entire communication into an advertisement"

But this leaves an issue hanging: Who decides what the "primary purpose" of a blog or newsletter is?

It's worth noting that that exact phrase is part of New York's anti-solicitation rules. I started writing about it in February 2007 when the new rules went into effect (See:Who, Exactly, Must Comply With New York's Attorney Advertising Rules? and more on the subject as a whole here: New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.)

With so many potential shades of gray, it seems that if and when the issue is ultimately litigated, we will be faced with Justice Potter Stewart's famous words regarding the definition of pornography, for it seems equally applicable in the context of deciding what is attorney advertising and what is not when it comes to blogs:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So when will it be ultimately litigated? Hold on to your hats....the issue of New York's new anti-solicitation rules is now before the Second Circuit. And Justice Sonia Sotomayor was on the panel that heard the case.

Elsewhere on today's ruling:

• Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise (Eugene Volokh)
• N.Y. High Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications Act (NYLJ via Law.com, 6/12/09)
• Attorney Newsletters and Liability for Unwanted Faxes (Full Court Pass)
• We're Not Just Self Promoters (Greenfield @ Simple Justice, 6/13/09)
  

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Full disclosure: I know both Bluestone and Greenfield, and both have appeared in my blogroll for the last couple of years.

Labels: First Amendment