Different River

”You can never step in the same river twice.” –Heraclitus

October 13, 2006

A Chilling Effect on Free Speech

Filed under: — Different River @ 2:19 am

One of my favorite blogs, Likelihood of Confusion reports that it is in danger of being shut down by draconian regulations. See, that blog is written by a lawyer licensed in New York, and if certain proposed rules are put into effect, blogging will considered a prohibited form of advertising for lawyers:

Public Citizen’s CL&P (Consumer Law and Policy) Blog wrote last month that New York is considering draconian advertising rules that would essentially make it impossible for lawyers to maintain blogs. I am excerpting liberally, but urge you to follow the link and the discussion at the CL&P Blog:

Stripped to their essence, the proposed amendments would define the term “advertisement” extremely broadly as any public communication made “by . . . a lawyer . . . about a lawyer.” Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging. Sec. 1200.1(m). There is no requirement that the speech be commercial in nature or related to the lawyer’s practice of law.

You might think, given my opinions on some issues, that I’d think it’s a good idea to shut lawyers up. But you would be wrong.

First, I am a strong believer in free speech, and I don’t think one’s speech should be restricted because of one’s choice of profession. I understand there are certain things about their professions that people can’t talk about (e.g., attorney-client privileged information, classified information, trade secrets, etc.), but that’s no reason to restrict speech that is not “related to the lawyer’s practice of law” or anyone else’s practice of any other profession.

Second, any damage that might be done by lawyers (as a class) to society is not done by lawyers blogging, or exercising free speech in any other way. It usually comes about by abusing the court system, with or without the assistance of an equally abusive client. (“Without” in the case of class actions.) How this can happen is a subject for another post — but it has nothing to do with blogging, emailing, instant messaging, or writing articles for newspapers or journals. Or even, usually, with advertising. While there are no doubt some sleazy “ambulance-chaser” types who advertise for socially damaging services, that’s not a big part of the problem, in my view.

Third, there are an awful lot of very good blogs written by lawyers. Likelihood of Confusion by Ronald Coleman is a fascinating blog about trademark law. The Volokh Conspiracy is a great group blog about (mostly) constitutional law and law education. There are several more linked on the blogroll to your right.

But the over-riding concern here is free speech. I’d be against this rule even if all the law blogs were bad. The great thing about the internet is that if thery were bad, they wouldn’t be read.

As Mr. Coleman points out:

You can comment on the proposed rules by writing to:

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004

by November 15, 2006. I encourage it.

Meanwhile, before it’s too late, I’d be interested in Mr. Coleman’s opinion on this case:

“The producer of the canned pork product Spam has lost a bid to claim the word as a trademark for unsolicited e-mails. EU trademark officials rejected Hormel Foods Corp.’s appeal, dealing the company another setback in its struggle to prevent software companies from using the word ‘spam’ in their products, a practice it argued was diluting its brand name. The European Office of Trade Marks and Designs, noting that the vast majority of the hits yielded by a Google search for the word made no reference to the food, said that ‘the most evident meaning of the term SPAM for the consumers … will certainly be unsolicited, usually commercial e-mail, rather than a designation for canned spicy ham.’”

Seems to me that if Hormel had acted earlier — before the use of the word “spam” for junk e-mail were so widespread, they might have had a better case. Is that right? Then again, that’s based on what I (think I) know about U.S. trademark law. The E.U. could have different rules.

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