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

41 Pages Posted: 8 Apr 2009 Last revised: 20 May 2009

Nat Stern

Florida State University - College of Law

Date Written: April 1, 2009

Abstract

Notwithstanding a string of defeats in the United States Supreme Court, the organized legal profession has hardly relented in its efforts to limit lawyer advertising. Among the most dubious restrictions to which many states have clung is the prohibition on "self-laudatory" claims or other subjective representations by attorneys. 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 I provides an overview of the Court's commercial speech doctrine, including discrete treatment of cases involving lawyer advertising and solicitation. Part II sets forth central tenets underpinning the Court's approach to commercial speech. Part III examines the tension between these principles and categorically forbidding self-laudatory and other subjective attorney advertising.

Suggested Citation

Stern, Nat, Commercial Speech, 'Irrational' Clients, and the Persistence of Bans on Subjective Lawyer Advertising (April 1, 2009). Brigham Young University Law Review, Forthcoming; FSU College of Law, Public Law Research Paper No. 364. Available at SSRN: https://ssrn.com/abstract=1374490

Nat S. Stern (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-1801 (Phone)

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