SSRN-id1374490 - COMMERCIAL SPEECH, IRRATIONAL CLIENTS, AND...

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Electronic copy available at: http://ssrn.com/abstract=1374490 COMMERCIAL SPEECH, “IRRATIONAL” CLIENTS, AND THE PERSISTENCE OF BANS ON SUBJECTIVE LAWYER ADVERTISING Nat Stern* Abstract: Over the past several decades, the Supreme Court has invoked the First Amendment to strike down numerous restrictions on lawyer advertising. Up to this point, these decisions have left intact categorical bans on attorneys’ self-laudatory statements, comparisons with other lawyers, and other subjective claims. The logic of the Court’s broader commercial speech doctrine, however, suggests that the sweep of such prohibitions may be suspect as well. This Article first reviews the Court’s modern treatment of commercial speech and describes the principal tenets underlying the substantial protection accorded to this category of expression. It then explores the tension between these principles and categorical rules against self-laudation and other subjective attorney advertising. “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 Notwithstanding a string of defeats in the 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 * John W. and Ashley E. Frost Professor of Law, Florida State University College of Law. Gennifer Powell and Megan Warren provided valuable research support. 1 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (plurality opinion of Stevens, J.). 2
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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SSRN-id1374490 - COMMERCIAL SPEECH, IRRATIONAL CLIENTS, AND...

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