John J. Watkins, Lawyer Advertising, the Electronic Media, and the First Amendment, 49 Ark. L. Rev. 739 (1997).
The first television commercial by an American law firm was aired nearly twenty years ago, <=2> n1 in the wake of Bates v. State Bar of Arizona. <=3>
n2 Today, television advertisements for legal services are as common as those for health clubs, home centers, and discount department stores <=4> n3 - and
every bit as tacky. <=5> n4
For example, a New Orleans advertising agency videotapes lawyers standing in junk yards, with wrecked cars falling from a crane just out of camera range.
<=6> n5 Using a similar [*740] but less expensive stunt, a Wisconsin attorney emerges from under water in scuba gear and asks if the viewer is over his
head in debt. <=7> n6 In Arkansas, a Fayetteville attorney calls himself the "rebel lawyer" and appears in a commercial wearing a black cowboy hat and
western garb. <=8> n7 Celebrity spokesmen have also been featured. A Denver lawyer with his own advertising syndication firm has used football
commentator John Madden, a former coach who is also a pitchman for hardware stores and beer. <=9> n8
Because of commercials like these, and others that are even more crass, <=10> n9 five states have adopted strict rules for television advertising designed to
restore dignity and enhance the public image of the legal profession. Less restrictive regulations aimed at certain advertising practices are on the books in at
least nine other jurisdictions. Not surprisingly, lawyers who advertise heavily on television have fought both types of rules on policy grounds and challenged
them as inconsistent with the First Amendment. This article examines the constitutional issue, which the Supreme [*741] Court has not addressed by full
opinion, and considers whether, as a matter of policy, regulating television commercials is desirable.
I. THE REGULATORY ENVIRONMENT
Television advertising does not receive special treatment in the ABA Model Rules of Professional Conduct. Subject to the general prohibition against "false or misleading communications," <=11> n10 a lawyer may advertise his or her services through "public media," including "radio or television." <=12> n11 A communication is false or misleading if it contains a "material misrepresentation" of fact or law, omits a fact "necessary to make the statement considered as a whole not materially misleading," is likely to create an "unjustified expectation
about results the lawyer can achieve," states or implies that the lawyer can achieve results by illegal or unethical means, or compares the lawyer's services with
those of another attorney, "unless the comparison can be factually substantiated." <=13> n12
The comments to the Model Rules flatly reject the notion that television advertising should be regulated more heavily than other forms:
Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions
against television advertising.... Television is now one of the most powerful media for getting information to the public, particularly persons of low and
moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. <=14>
In contrast to the ABA's approach, five states have imposed restrictions on advertisements disseminated via the electronic media. The most extreme rules are
found in [*742] Iowa, which has taken a tough stance with respect to all forms of lawyer advertising. In fact, the Iowa limitations "have resulted in the
elimination of electronic advertisements for legal services in the state ...." <=15> n14
No matter what the medium, attorney advertisements in Iowa cannot contain any "false, fraudulent, misleading, descriptive, self-laudatory, or unfair
statement," any claim that is unverifiable, any statement or claim "relating to the quality of [the lawyer's] legal services," or any statement or claim "which
appeals to the emotions, prejudices, likes, or dislikes of a person." Advertisements must also include this notice: "The determination of the need for legal
services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This
disclosure is required by rule of the Supreme Court of Iowa." <=16> n15 Other disclosures are necessary if fees are advertised, <=17> n16 if litigation is
advised, <=18> n17 or, in some cases, if an area of practice is indicated. <=19> n18 [*743]
Advertisements in the electronic media are subject to additional strictures. They may be "articulated only by a single voice, not that of the lawyer, and with no
other background sound." In the case of television, "no visual display shall be allowed except that allowed in print as articulated by the announcer." Moreover,
all such advertisements, to the extent possible, "shall be made only in the geographic area in which the lawyer maintains offices or in which a significant part of
the lawyer's clientele resides, and shall contain the [required] disclosures ...." <=20> n19
Florida has taken a somewhat more moderate position, but its rules are also designed to limit the emotional appeal of advertisements in the electronic media.
With respect to advertising in general, Florida has adopted the ABA's definition of "false and misleading" communications but has specifically included
testimonials within its scope. <=21> n20 No dramatizations are permitted in any medium, <=22> n21 and any illustrations must "present information that
can be factually substantiated and is not merely self-laudatory." <=23> n22 Moreover, advertisements may not contain self-laudatory statements or
characterizations of "the quality of the lawyer's [*744] services." <=24> n23 Disclosure of the lawyer's principal office is required, <=25> n24 as is
certain explanatory information if fees are mentioned. <=26> n25
While most advertisements must also contain a notice advising a potential client to ask the lawyer about his or her qualifications and experience, this
statement "need not appear in electronic advertisements." <=27> n26 However, there are important limits on television spots:
Advertisements in the electronic media such as radio and television may contain the same factual information and illustrations as permitted in advertisements in
the print media, but the information shall be articulated by a single voice, with no background sound other than instrumental music. The voice may be that of a
full-time [*745] employee of the firm whose services are advertised; it shall not be that of a celebrity whose voice is recognizable to the public. The lawyer
or full-time employee of the firm whose services are being advertised may appear on screen or on radio. <=28> n27
These restrictions, coupled with the ban on dramatization and "self-laudatory" statements, have reduced the amount of television advertising, <=29> n28 but
Florida lawyers, unlike their Iowa counterparts, still use the medium. In 1995, for example, an attorney in Hollywood, Florida, estimated that his six-person
firm spent about $500,000 annually on television advertising, despite the state's restrictive rules. <=30> n29 The Florida approach has been followed in
Mississippi <=31> n30 and Nevada. <=32> n31
New Jersey's rules are based on the notion that advertisements for legal services should not only "provide substantial information," but also "have the added
virtue of being interesting." <=33> n32 If attorney advertising were "restricted to a factual recitation ... of the need for legal services, the qualifications of the
attorney, and the prices offered," the New Jersey Supreme Court explained, "few would listen ... [and attorneys] simply would not advertise." <=34> n33
Nonetheless, the court singled out television commercials for special treatment because of the impact of the medium, particularly on "less-affluent,
less-educated" individuals who are "most vulnerable" to attention-getting advertisements that contain little or no information " [*746] rationally related to the
need for and selection of an attorney." <=35> n34
As a starting point, New Jersey employs the ABA's definition of "false and misleading" communications while adding to it a provision that reaches, with
certain exceptions, information related to fees. The exceptions allow an advertisement to state the fee for an initial consultation, the availability of credit
arrangements, and, to the extent that it would not be "misunderstood or deceptive," a statement of "the fixed or contingent fees for specifically described legal
services." Information about hourly rates and the range of fees for particular services are also permissible, so long as certain disclosures are made. <=36> n35
Another provision describes the circumstances under which a lawyer may state that he or she is a specialist in a particular field. <=37> n36
While advertising is allowed in all "public media," including radio and television, several restrictions apply:
All advertisements shall be predominantly informational. No drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised
advertising. No advertisement shall rely in any way on techniques to obtain attention that depend upon ab- [*747] surdity and that demonstrate a clear and
intentional lack of relevance to the selection of counsel; included in this category are all advertisements that contain any extreme portrayal of counsel exhibiting
characteristics clearly unrelated to legal competence. <=38> n37
In adopting this rule, the New Jersey Supreme Court defined the term "predominantly informational" to mean that "in both quantity and quality, the
communication of factual information rationally related to the need for and selection of an attorney predominates." <=39> n38 According to the court, a
thirty-second radio spot in which half the time is devoted to dramatization of an automobile accident would not comply, even if it also advised listeners that
they may be entitled to damages and that the lawyer would handle the case. "The dramatization (although clearly related to the need for any attorney, when
linked with the final messages) is not predominantly informative[,]" the court said. "Half of the advertisement is devoted exclusively to attracting the listener's
attention and interest while conveying virtually no factual information related to the need for or competence of counsel." On the other hand, the ad would
comply if the dramatization were "but a minor part of an otherwise rational appeal, the balance of the ad describing the firm, its experience, its availability, its
fees, its clients, etc." <=40> n39
With respect to the prohibition of "extreme portrayals of counsel" that rise to the level of "absurdity," the court explained that advertising of this type has a
"shock' quality" that "has the potential for bringing both the bar and bench into disrepute." <=41> n40 By way of example, the court cited a television
commercial mentioned previously in this article:
The overweight man emerging from a swimming pool [in] a scuba diver outfit ... produces not only interest but a laugh, and often enough, a smirk. The serious
viewer wonders why an attorney thinks someone would [*748] be interested in his services based upon such an ad; indeed the scene is so patently unrelated
to any qualities that rationally relate to the attorney's competence as to cause the viewer to wonder what the attorney thinks of the public. Ultimately this effort
to obtain clients through such a patently irrational appeal gives one cause to question the competence of both the attorney who ran the ad and the court that
allowed it. <=42> n41
Three other states have taken less extreme measures. Arizona, for example, also utilizes the "predominantly informational" standard <=43> n42 but does not
prohibit dramatizations on television and other electronic media. However, dramatizations must "be designed to further the informational purposes of legal
advertisement," <=44> n43 and any person who appears on screen purporting to be a lawyer must "in fact be a lawyer employed full-time at the advertising
law firm." <=45> n44 The South Dakota approach is similar. <=46> n45 In Texas, which does not impose the "predominantly informational" requirement,
anyone who "portrays a lawyer whose services or whose firm's services are being advertised, or who narrates an advertisement as if he or she were such a
lawyer, shall be one or more of the lawyers whose services are being advertised." <=47> n46 [*749]
Even if television commercials are not specifically targeted in state rules, tactics commonly used in the medium might be. This is so in at least a half-dozen
states. In Pennsylvania, for example, no advertisement may contain "an endorsement by a celebrity or public figure." <=48> n47 Similarly, New Mexico
defines as false or misleading any communication that "contains a testimonial about, or endorsement of, the lawyer." <=49> n48 Other states allow
endorsements and testimonials only if an appropriate disclosure is made, <=50> n49 and some require that any dramatization be identified as such. <=51>
n50 Of course, disclaimers or notices of any kind are frustrating to television advertisers, and such requirements could well discourage lawyers from using the
medium. <=52> n51
II. THE ELECTRONIC MEDIA AND THE FIRST AMENDMENT
Examination of the constitutional underpinnings of broadcast and cable television regulation is in order before we turn to the reported cases dealing with
restrictions on lawyer advertising in these media. At the outset, it should [*750] be noted that the Supreme Court has demonstrated a propensity to distinguish
among types of media in applying the First Amendment. <=53> n52 This approach has led to different rules for over-the-air television broadcasters and the
operators of cable systems, despite the fact that the end result - images on a television screen - is the same.
There are two theoretical bases for government regulation of the broadcast media: (1) the electromagnetic spectrum through which broadcast signals travel is
a "scarce resource" which, without government control, "would be of little use because of the cacophony of competing voices," <=54> n53 and (2) the
broadcast media "have established a uniquely pervasive presence in the lives of all Americans" and are "uniquely accessible to children." <=55> n54
The first of these, often called the "spectrum scarcity" theory, dates to a 1943 Supreme Court decision, National Broadcasting Co. v. United States. <=56>
n55 During the early days of radio, there was not an adequate mechanism for allocating that portion of the electromagnetic spectrum suitable for broadcasting.
As Justice Frankfurter later described the situation: "The result was confusion and chaos. With everybody on the air, nobody could be heard." <=57> n56 This
state of affairs led Congress to conclude that the federal government must decide who is to be permitted to use the limited space on the broadcast spectrum, for
otherwise this valuable public resource would be worthless. The Radio Act of [*751] 1927 <=58> n57 assigned that task to an administrative agency, the
Federal Radio Commission, now known as the Federal Communications Commission (FCC).
Under the Communications Act of 1934, <=59> n58 the successor to the 1927 statute, the FCC has broad powers to regulate broadcasting "as [the] public
convenience, interest, or necessity requires ...." <=60> n59 The act reflects the position that broadcast frequencies within the electromagnetic spectrum are a
publicly-owned resource allocated to licensees on a temporary basis. In return for the privilege to exploit this resource financially, a licensee must operate its
station in a manner consistent with the public interest. The FCC has been given the task of determining where that interest lies.
One reading of the statutory scheme is that the FCC was simply to act as a "traffic cop of the airwaves" by assigning frequencies and making certain that one
broadcaster does not interfere with another. However, the Supreme Court has employed the spectrum scarcity theory to justify not only the FCC's authority to
direct broadcast traffic, but also the agency's power to regulate its content in a manner that would run afoul of the First Amendment if applied to the print
In order to make the broadcast spectrum usable for expressive activities, the theory goes, government must allocate the limited number of frequencies, a
process that is unnecessary with respect to such "traditional" forms of [*752] communication as printing and speaking. <=61> n60 Accordingly, there is no
First Amendment right to obtain a broadcast license comparable to the right to publish a newspaper or mount a soap box in a public forum. Because there is no
constitutional right to broadcast, the recipient of a license to do so may be subjected to government regulations that require sharing the frequency with other
broadcasters or airing material that the licensee might not choose to carry in the exercise of independent editorial judgment. In short, the broadcast spectrum is a
resource that belongs to the public at large, and licensees "must serve in a sense as fiduciaries for the public by presenting "those views and voices ... which
would otherwise, by necessity, be barred from the airwaves'" because of the finite number of frequencies. <=62> n61
The most famous case applying the spectrum scarcity theory is Red Lion Broadcasting Co. v. Federal Communications Commission, <=63> n62 which
had its origins in the 1964 presidential campaign. <=64> n63 During a fifteen-minute radio broadcast, an Oklahoma evangelist attacked the author of a
partisan and highly critical biography of Senator Barry Goldwater, the Republican candidate. The author wrote letters requesting free rebuttal time to about 200
stations that regularly carried the evangelist's program. This demand was based on the FCC's "personal attack" rule, <=65> n64 a regulation which grew out
of the general obligation of broadcasters under the fairness doctrine to devote a reasonable amount of air time to the discussion of controversial [*753] issues
and to afford reasonable opportunity for the presentation of opposing views. <=66> n65
Fewer than fifty stations ultimately offered reply time, and the author responded with a three-minute tape. Most stations, however, either flatly rejected the
demand or told the author that he could purchase time at the prevailing commercial rate. Among the latter group was WGCB in Pennsylvania, licensed to the
Red Lion Broadcasting Company. The author filed a complaint against WGCB with the FCC, which concluded that the broadcast constituted a personal attack
and that the station had failed to meet its obligations under the personal attack rule. Red Lion appealed, and the Supreme Court held, in a unanimous opinion,
that the personal attack rule did not offend the First Amendment and that the FCC had ample authority under the "public interest" provision of the
Communications Act to adopt it.
Speaking for the Court, Justice White rejected the argument that the First Amendment protects the desire of broadcasters "to use their allotted frequencies
continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency." <=67> n66 He wrote:
Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on
this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently
with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the
purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by the Government itself or a private licensee. <=68> n67 [*754]
A few years later, in Miami Herald Publishing Co. v. Tornillo, <=69> n68 the Supreme Court struck down a state statute much like the personal attack rule
but applicable to newspapers. This decision, along with the growth of cable and satellite television technologies, led critics to attack spectrum scarcity as an
obsolete basis for broadcast regulation and urge that radio and television be treated in the same fashion as the print media for First Amendment purposes.
<=70> n69 In 1984, the Court refused to reconsider the scarcity rationale but suggested its willingness to abandon it upon "some signal from Congress or the
FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required." <=71> n70 [*755]
The second theory, based on the "uniquely pervasive presence" of the broadcast media, stems from Federal Communications Commission v. Pacifica
Foundation. <=72> n71 At issue there was the constitutionality of a federal statute that forbids the use of "any obscene, indecent, or profane language by
means of radio communications." <=73> n72 The case arose when a New York radio station broadcast a recorded monologue by comedian George Carlin,
the focus of which was "the words you couldn't say on the public airwaves." Carlin listed the seven words and "repeated them over and over again in a variety
of colloquialisms." <=74> n73 Broadcast at about 2:00 p.m. during a program about society's attitude toward language, the monologue was heard by a man
while driving with his son. The man, who apparently had not heard the station's disclaimer that the program included "sensitive language which might be
offensive to some," wrote a letter to the FCC complaining about the broadcast. <=75> n74
The FCC concluded that the Carlin monologue was indecent within the meaning of the statute. Rather than impose formal sanctions against the licensee, the
Commission decided to place a copy of its ruling in the station's license file for possible action in the event that subsequent complaints were received. In its
discussion of the merits, the FCC said that indecent speech should be regulated under a nuisance rationale in accordance with the following standard:
The concept of "indecent" is intimately connected with the exposure of children to language that de- [*756] scribes, in terms patently offensive as measured
by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk
that children may be in the audience. <=76> n75
In a 5-4 decision, the Supreme Court upheld the FCC. After finding "no basis for disagreeing with the Commission's conclusion that indecent language was
used in this broadcast," <=77> n76 the Court turned to the question of "whether the First Amendment denies government any power to restrict the public
broadcast of indecent language in any circumstances." <=78> n77 Writing for the Court, Justice Stevens answered that question in the negative. Although he
cited Red Lion, Justice Stevens did not rely on the spectrum scarcity rationale to support his basic premise that "of all forms of communication, it is
broadcasting that has received the most limited First Amendment protection." <=79> n78 Instead, he stressed rather different considerations:
First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First
Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or
viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that
the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional
immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although [a] written message might [be] incomprehensible to a first
grader, Pacifica's broadcast could have enlarged a [*757] child's vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material
available to children.... The ease with which children may obtain access to broadcast material ... amply justifies special treatment of indecent broadcasting.
In subsequent cases, the second of these considerations - protection of children from sexually oriented information - has emerged as the most significant. The
Supreme Court relied on Pacifica in upholding child pornography laws <=81> n80 and distinguished it in cases involving other media, such as "dial-a-porn"
telephone services <=82> n81 and printed material sent by mail. <=83> n82 However, the Court has not again employed the Pacifica rationale in a broadcast
Cable television has been viewed through a different constitutional prism than the broadcast media, but the picture has yet to come into sharp focus. The
leading case is Turner Broadcasting System, Inc. v. Federal Communications Commission, <=84> n83 in which cable operators challenged a statute requiring
them to carry local broadcast stations on their systems. Because of the procedural posture of the case, the Court did not reach the merits but instead re- [*758]
manded for further proceedings. <=85> n84 However, the Court squarely rejected the FCC's argument that cable television should be analyzed under the
same First Amendment standard applicable to broadcasters.
Without mentioning Pacifica, Justice Kennedy said in his opinion for the Court that "the justification for our distinct approach to broadcast regulation rests
upon the unique physical limitations of the broadcast medium." <=86> n85 Thus, Red Lion and other spectrum scarcity cases were inapposite "because cable
television does not suffer from the inherent limitations that characterize the broadcast medium." <=87> n86 However, the Court did not, as the cable industry
had urged, view cable in the same light as newspapers and other print media. "When a newspaper asserts exclusive control over its own news copy, it does not
thereby prevent other newspapers from being distributed to willing recipients in the same locale," Justice Kennedy said. "The same is not true of cable. When
an individual subscribes to cable, ... the cable operator [has] bottleneck, or gatekeeper, control over most (if not all) of the television programming that is
channeled into the subscriber's home." <=88> n87
Seven years before its decision in Turner, the Court summarily affirmed a lower court decision holding Pacifica inapplicable to indecency regulations aimed
at cable systems. <=89> n88 The district court, whose opinion was adopted by [*759] the court of appeals, concluded in Community Television of Utah,
Inc. v. Wilkinson <=90> n89 that the necessary "pervasiveness" was absent, since cable is "only available if the person who views it has affirmatively
contacted the cable system and asked that [it] be brought into his home ...." Unlike the broadcast media, "cable television is not an uninvited intruder." <=91>
n90 The court also rejected the argument that cable is "uniquely accessible" to children, pointing out that "parents can significantly control their children's
access to cable" by using "lock boxes" that prevent reception of any channels deemed unsuitable. <=92> n91
This past term, however, a plurality of the Court applied Pacifica by analogy in a case involving indecency on "leased access" cable channels. In Denver Area
Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, <=93> n92 the question was the constitutionality of a 1992
federal statute permitting cable operators to prohibit indecent programming on channels leased to unaffiliated third parties. <=94> n93 While the Court
upheld the statute by a 7-2 margin, there was no majority opinion. Writing for a plurality of four, <=95> n94 Justice Breyer [*760] found the statute
"remarkably similar" to the indecency provision approved in Pacifica and compared cable systems to broadcasters:
Cable television ... is as "accessible to children" as over-the-air broadcasting, if not more so. Cable television systems, including access channels, "have
established a uniquely pervasive presence in the lives of all Americans." [Indecent] material from these stations can "confront the citizen" in the "privacy of the
home" with little or no prior warning. <=96> n95
Similarly, he noted elsewhere in the opinion that "cable and broadcast television differ little, if at all," with respect to "how pervasive and intrusive [their]
programming is." <=97> n96
In response to a dissenting opinion, Justice Breyer dismissed Turner Broadcasting as irrelevant to the matter at hand. In that case, he explained, the Court's
distinction "between cable and broadcast television relied on the inapplicability of the spectrum scarcity problem to cable." While that distinction was important
in Turner because of the nature of the "must-carry" regulations at issue there, Justice Breyer said, "it has little to do with a case that involves the effects of
television viewing on children." <=98> n97 [*761]
Despite his reliance on Pacifica, Justice Breyer declined to adopt a First Amendment standard governing cable, stating that it would be "unwise" to do so in
light of "the changes taking place in the law, the technology, and the industrial structure, related to telecommunications." <=99> n98 Justice Souter, who
joined the plurality opinion, wrote separately to explain why he agreed with this approach:
All of the relevant characteristics of cable are presently in a state of technological and regulatory flux.... As cable and telephone companies begin their
competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable
will remain a separable and useful category of First Amendment scrutiny. And as broadcast, cable, and the cyber-technology of the Internet and the World Wide
Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but
now unknown and unknowable, effects on the others. <=100> n99
In light of the Turner Broadcasting and Denver Area decisions, cable operators enjoy more First Amendment protection than broadcasters for some purposes
but are treated in the same manner with respect to regulations designed to protect children from indecent programming. However, the constitutional standard
applicable to cable television remains unsettled.
III. THE ADVERTISING CASES
Any discussion of lawyer advertising must begin with Bates. In that case, Justice Blackmun devoted the final section of his opinion for the Court to "clearly
permissible limitations on [lawyer] advertising not foreclosed by our holding." <=101> n100 Among other things, he observed that "the special problems of
advertising on the electronic broadcast [*762] media will warrant special consideration." <=102> n101 That statement was followed by a citation to
Capital Broadcasting Co. v. Mitchell, <=103> n102 a case in which broadcasters unsuccessfully challenged the federal statute that bans cigarette advertising
on radio and television. <=104> n103
The opinion in Capitol Broadcasting was the product of a three-judge district court, whose decision upholding the statute was summarily affirmed by the
Supreme Court. <=105> n104 Because the case was brought by radio and television companies rather than tobacco advertisers, it is arguably of little value in
evaluating restrictions imposed upon lawyer advertisers. <=106> n105 Moreover, it preceded by some five years the Supreme Court's seminal commercial
speech case, Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc. <=107> n106 Nonetheless, three passages in Capitol Broadcasting offer
some insight into Justice Blackmun's thinking in Bates.
First, "the unique characteristics of electronic communication make it especially subject to regulation in the public interest." <=108> n107 In support of
this statement, the court cited the NBC case, the Supreme Court's first "spectrum [*763] scarcity" decision. Second, "there are significant differences between
the electronic media and print" - broadcast messages are "in the air," while written messages "are not communicated unless they are read, and reading requires
an affirmative act." <=109> n108 This comment, which appears in the court's discussion of whether there was a rational basis for Congress' decision to ban
cigarette commercials on broadcast facilities while allowing print advertisements, is remarkably similar to the "uniquely pervasive" rationale used in the
Supreme Court's Pacifica decision seven years later.
Third, "substantial evidence showed that the most persuasive advertising was being conducted on radio and television, and that these broadcasts were
particularly effective in reaching a very large audience of young people." <=110> n109 Part of the court's rational basis analysis, this statement has the same
ring as Pacifica's second consideration, i.e., that broadcasting is "uniquely accessible to children." In his concurring opinion in Pacifica, which Justice Blackmun
joined, Justice Powell cited Capital Broadcasting to bolster his point that broadcast speech has a greater impact on children than on adults. <=111> n110
The leading case with respect to restrictions on television advertising by lawyers is Committee on Professional Ethics & Conduct v. Humphrey, <=112>
n111 decided by the Iowa Supreme Court in 1985. The United States Supreme Court dismissed the appeal in Humphrey for "want of [a] substantial federal
question," <=113> n112 a summary disposition on the merits that is binding on lower courts. <=114> n113 However, the Court [*764] itself does not
accord such a summary disposition the same precedential weight as decisions rendered by full opinion after plenary consideration, <=115> n114 and for that
reason one can safely assume that the matter has not yet been completely put to rest. <=116> n115
The Humphrey case began in 1982, when a television station in Des Moines aired three advertisements for a small law firm. The spots featured actors in a
brief dramatization and plainly violated the Iowa lawyer advertising rules described previously. <=117> n116 In an original action in the state supreme court,
the Iowa Bar Association's ethics committee contended that the advertisements violated the lawyer advertising rules and asked the court to enjoin the law firm
from using them. For its part, the firm argued that the rules violated the First Amendment. <=118> n117 [*765]
In rejecting this argument, the Iowa Supreme Court relied primarily on the reference in Bates to the "special problems" of broadcast advertising and the
citation of Capital Broadcasting. The court also described the broadcast media as "uniquely pervasive or intrusive," citing Pacifica. <=119> n118 To complete
the picture, the court pointed out that states can regulate advertising that results in "intrusion, intimidation, overreaching, or undue influence," is "inherently
likely to deceive," or is "subject to abuse." <=120> n119 Television advertising fell within these categories of permissible regulation, and the rule at issue
simply prohibited use of "the tools which would manipulate the viewer's mind and will." <=121> n120 Moreover, the rule advanced substantial state interests
- "the fostering of rational decision making [by consumers] and maintaining of the bar's professionalism" - by prohibiting "irrelevant" information that "makes
no contribution" to the intelligent selection of counsel. <=122> n121
The law firm appealed, and the Supreme Court vacated the judgment and remanded the matter for further consideration in light of Zauderer v. Office of
Disciplinary Counsel, <=123> n122 which had just been decided. <=124> n123 In Zauderer, the Court struck down an Ohio rule that prohibited the use of
illustrations in advertisements by attorneys, required that such advertisements be "dignified," and limited the information that could be included to twenty items.
<=125> n124 With respect to the ban on illustrations, the Court, in an opinion by Justice White, stressed that the use of drawings and pictures "serves
important communicative functions: it attracts the attention of the audience to the advertiser's message, and it [*766] may also serve to impart information
directly." <=126> n125 Because the illustration at issue in Zauderer - a line drawing of an intrauterine device - had "no features ... likely to deceive, mislead,
or confuse the reader," the state was required topresent a substantial governmental interest justifying the rule, and neither interest that Ohio identified was
sufficient. <=127> n126
First, the Court rejected the notion that maintaining the dignity of the profession was a substantial interest. "The mere possibility that some members of the
population might find advertising embarrassing or offensive cannot justify suppressing it[,]" Justice White wrote. <=128> n127 "The same must hold true for
advertising that some members of the bar might find beneath their dignity." <=129> n128 Second, the Court was not convinced by the state's argument that
"the use of illustrations in advertising by attorneys ... creates unacceptable risks that the public will be mislead, manipulated, or confused." <=130> n129
Acceptance of this argument, Justice White said, would allow a "blanket ban" on the use of illustrations simply because "the visual content of advertisements
may, under some circumstances, be deceptive or manipulative." <=131> n130
On remand, the Iowa Supreme Court reaffirmed its earlier decision. <=132> n131 In the court's view, Zauderer was limited to print advertising and had no
impact on the statement in Bates that the "special problems" of broadcast advertising will warrant "special consideration." <=133> n132 For sup- [*767]
port, the court quoted from Justice O'Connor's separate opinion in Zauderer concurring in the judgment insofar as the illustration issue was concerned. <=134>
n133 "At least in the context of print media," Justice O'Connor wrote, "the task of monitoring illustrations in attorney advertisements is not so unmanageable as
to justify Ohio's blanket ban." <=135> n134 In a footnote, she added: "Like the majority, I express no view as to whether this is also the case for broadcast
media." <=136> n135
The Iowa court then restated its position that there is "a substantial governmental interest" in regulating broadcast advertising because of its "very real
potential for abuse." <=137> n136 In the court's view, "the situation in electronic advertising lies closer to face-to-face solicitation (which, as we have said,
can be proscribed) than to printed advertising (which cannot)." <=138> n137 The court explained:
Electronic media advertising, when contrasted with printed advertising, tolerates much less deliberation by those at whom it is aimed. Both sight and sound are
immediate and can be elusive because, for the listener or viewer at least, in a flash they are gone without a trace. Lost is the opportunity accorded to the reader
of printed advertisements to pause, to restudy, and to thoughtfully consider. <=139> n138
To illustrate the potential for abuse, the court quoted testimony from the president of the advertising agency that prepared the commercials in question. That
testimony reflected plans to use television spots featuring football commentator John Madden, who had also appeared in beer commercials. The advertising
executive described Madden [*768] as an "image enhancer" whose appearance would help portray the lawyer as a "fighter." <=140> n139 In the court's
judgment, such "electronically conveyed image-building was not a part of the information package which has been described [in Bates and Zauderer] as needed
by the public." <=141> n140 The court thus attempted in its regulations to draw "an important line ... between the dissemination of protected information and
crass personal promotion." <=142> n141 As noted previously, the Supreme Court dismissed an appeal from this decision for want of a substantial federal
question. <=143> n142
The Humphrey case was a source of encouragement to state courts in Arizona and New Jersey as they adopted restrictions on broadcast advertising. <=144>
n143 While the Florida Supreme Court did not specifically rely on Humphrey, it used similar analysis and pointed for support to the "special problems"
language in Bates. <=145> n144 "We find that the Bar's proposals eliminate the "gray areas' that presently allow [broadcast] advertising to project false and
misleading messages," the court said. <=146> n145 "The proposed rule constitutionally restricts those methods which, through clever manipulation, could be
used to deceive the public." <=147> n146 Along the same lines, the Connecticut Supreme Court has left the door open to "regulations designed to assure that
only useful, factual, and relevant information is conveyed in [broad- [*769] cast] advertisements for legal services." <=148> n147 However, rules of this
type have not yet been adopted. <=149> n148
Recent litigation in Mississippi and Texas sheds little light on the constitutionality of restrictions on broadcast advertising. The Mississippi rules, based on
those promulgated in Florida, were struck down in Schwartz v. Welch, <=150> n149 but that case turned on the defendants' apparent misunderstanding of the
burden of proof and their failure to rebut the plaintiffs' evidence. <=151> n150 Thus, the decision is of minimal significance as a precedent, although the
court seemed to go out of its way to suggest that some of the challenged rules were "conceivably" valid. <=152> n151
The Texas case, Texans Against Censorship, Inc. v. State Bar of Texas, <=153> n152 is more helpful. At issue there was a rule that prohibits the use of
actors to portray lawyers in television commercials and radio commercials. <=154> n153 In one commercial introduced as evidence, an actor seated at a desk
tells the audience that some law firms regularly settle claims for less than they are worth. At the end of the spot, the actor states, "We're a firm with the ability
and determination to see your case through ...." <=155> n154 At that point, the law firm's name and telephone number appears on the screen. This
commercial, the court said, "strongly suggests that the actor is an attorney associated with [the] firm, but since the [*770] actor is not a lawyer ... , the
commercial is, in this respect, misleading." <=156> n155 In any event, the court added, the restriction "directly advances the legitimate state interest of
protecting consumers from potentially deceptive advertising" and is in "reasonable proportion to the state's interest in protecting consumers from such
advertisements." <=157> n156 In a footnote, the court cited Bates for the proposition that "regulations implicating the electronic media may warrant special
consideration." <=158> n157
IV. THE IMPACT OF FLORIDA BAR
The precedential value of Humphrey seems to have increased, at least modestly, in the wake of the Supreme Court's decision in Florida Bar v. Went for It, Inc.
<=159> n158 There the Court upheld a Florida rule imposing a thirty-day ban on direct mail targeted at accident victims and their families. As Professor
Rotunda points out elsewhere in this issue, Florida Bar is the first case in which the Court approved advertising restrictions "based on the need to protect the
dignity of lawyers." <=160> n159 By contrast, the Court in Zauderer specifically rejected the argument that the state interest in maintaining the "dignity" of
the profession was substantial. <=161> n160 Because the Iowa Supreme Court's decision in Humphrey passed muster under Zauderer, it surely is a stronger
precedent now that professional dignity qualifies as a substantial state interest.
There is some room for doubt on this point, however. Florida Bar involved a rule which, at its core, was intended to protect "the personal privacy and
tranquility of [accident victims and their families] from crass commercial intrusion by attorneys upon their personal grief in times of [*771] trauma." <=162>
n161 The Court directly linked this consideration with the state's asserted interest in maintaining the dignity of the legal profession: "The Bar has substantial
interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated
invasions have engendered." <=163> n162 Given this linkage, it has been argued that Florida Bar probably does not signal "any major rethinking of lawyer
advertising." <=164> n163
On the other hand, the privacy rationale used in Florida Bar is less than convincing. As Justice Kennedy pointed out in dissent, the majority struggled to
distinguish Shapero v. Kentucky Bar Association, <=165> n164 in which the Court discounted the invasive nature of direct mail: "[a] letter ... can readily be
put in a drawer to be considered later, ignored, or discarded." <=166> n165 To avoid Shapero, Justice Kennedy charged, the majority concluded that the
Florida regulations implicated a different privacy interest: "that victims or their families will be offended by receiving a solicitation during their grief and
trauma." <=167> n166 Even if that is the case, Justice Kennedy argued, "we do not allow restrictions on speech to be justified on the ground that the
expression might offend the listener." <=168> n167 Indeed, the Court said just that in Zauderer. <=169> n168
Assuming that professional dignity, standing alone, is a substantial state interest, Florida Bar plainly requires empirical data to support a link between that
interest and re- [*772] strictions on advertising. Such evidence apparently need not amount to much, however. Writing for the majority, Justice O'Connor
pointed to a survey in which a whopping 27% of direct-mail recipients indicated that this marketing tactic lowered their respect for the legal profession in
Florida. <=170> n169
If this sort of evidence is sufficient, <=171> n170 then proponents of strict restrictions on broadcast advertising can surely meet the standard. <=172>
n171 At least two studies can be cited for the proposition that television commercials have a negative impact on the public's perception of the legal profession.
One of those studies, conducted in 1983 on behalf of the Iowa State Bar Association, attempted to determine the effect of certain lawyer television commercials
on individuals chosen at random from Linn County, Iowa. Before viewing the spots, 71% of the respondents viewed lawyer professionalism favorably, while
45% had a positive impression of lawyer dignity. Afterwards, these numbers dropped to 21% and 14%, respectively. <=173> n172
A study undertaken in 1989, also in Iowa, produced similar, but far less dramatic, results. Respondents, members of the general public, were asked several
questions prior to watching lawyer commercials, including "how appropriate is it for law firms and attorneys to advertise their services on television?"
Forty-nine percent said that such advertising is appropriate. After watching the commercials, [*773] 43% answered in the affirmative. <=174> n173 The
respondents were also asked whether they agreed or disagreed with this statement: "advertising by law firms and attorneys would tend to lower the credibility of
their profession." Twenty-three percent agreed initially, and that number rose to 35% after the respondents viewed the commercials. <=175> n174
Other research suggests that the public has a more negative attitude toward television commercials than toward other forms of lawyer advertising. A 1988
study of Georgia consumers showed that 48% viewed television commercials unfavorably, compared to 13% for advertisements in the Yellow Pages and 30%
for newspaper advertisements. <=176> n175 In a similar Nevada study two years later, 37% of the respondents had a negative attitude toward television
commercials, compared to 3% for the Yellow Pages and 5% for newspapers. <=177> n176 Only 13% of the Nevada consumers responded negatively to direct
mail, <=178> n177 which was not included in the Georgia list. Yet another study, this one conducted by researchers at Cleveland State University, found that
the respondents disapproved more strongly of radio and tele- [*774] vision commercials than advertisements in other media, including yellow pages, trade
journals, and newspapers. <=179> n178
To be sure, some of this research - particularly the 1983 Iowa Bar study - is subject to criticism, <=180> n179 and one can point to studies that cut in the
opposite direction. For example, the ABA Commission on Advertising has concluded that television commercials has no effect on the public's attitude toward
lawyers in general and that "print advertising is not inherently more dignified than television advertising." <=181> n180 In other research by the ABA in
1993, only 3% of those surveyed said that the image of lawyers would improve if they did not advertise on television. <=182> n181 However, the existence
of such studies seems immaterial in light of the Supreme Court's rather cavalier attitude in Florida Bar toward empirical data.
It is also worth mentioning that the majority in Florida Bar emphasized the availability of "ample alternative channels for receipt of information" despite the
thirty-day ban on targeted direct mail. <=183> n182 The same could be said of strict restrictions applicable only to broadcast commercials, for lawyers would
still be able to advertise freely in newspapers, on billboards, or in the Yellow Pages. [*775]
V. WHERE DO WE GO FROM HERE?
For the moment, at least, Humphrey apparently remains good law, and the Iowa rules at issue in that case show how far a state may go in restricting television
advertisements for legal services. In sum, the prevailing judicial attitude seems to be that the limited constitutional protection for commercial speech is diluted
even further by the second-class status of broadcasting under the First Amendment. But whether a state should take this opportunity to move toward the Iowa
model is another matter. <=184> n183 Here are some considerations that should be taken into account during the decision-making process.
In the first place, Humphrey and Florida Bar are rather fragile precedents - the former because it is a summary disposition, the latter because it appears to link
the dignity interest with privacy concerns. Their fragility is underscored by the increasingly unsettled nature of commercial speech doctrine itself. Just this term,
for example, the Supreme Court was quite fragmented in a case involving Rhode Island's restrictions on liquor advertising. <=185> n184 Read together,
[*776] the separate opinions reflect concern that the familiar Central Hudson <=186> n185 test applicable in commercial speech cases sometimes permits
excessive regulation of such speech. <=187> n186
Even if dignity alone is a sufficient basis for regulation, the inherent difficulty in deciding what is or is not dignified should be a red flag to anyone ready to
take aim at television commercials. Like obscenity, dignity is in the eye of the beholder. <=188> n187 Just as is it impossible to determine whether a
particular advertisement is dignified, it is impossible to conclude, on the basis of anything but taste and personal preference, whether a particular form of
advertising is dignified. It should come as no surprise that there is a division of opinion as to the dignity of leaflets, billboards, telephone book covers,
supermarket throwaways, and imprinted pens. <=189> n188 Likewise, a number of television commercials for lawyers are indeed tacky; however, even those
that are quite well done would, as a practical matter, be barred by burdensome rules of the Iowa variety.
Moreover, importing the television-print distinction into the commercial speech arena makes little sense, partic- [*777] ularly in light of the Court's
uncertainty with respect to the First Amendment status of cable. The oft-criticized spectrum scarcity rationale may well be on its last legs <=190> n189 and,
in any event, does not apply to cable. <=191> n190 It would be rather absurd for a state to adopt restrictive rules for television advertisements that would be
invalid with respect to the same commercials carried on a nonbroadcast cable channel. With more than 60% of the nation's households subscribing to cable,
<=192> n191 lawyers seeking to reach potential clients via television would simply advertise on cable, buying local time on such popular channels ESPN and
Cable News Network. These commercials, which are inserted by the cable operator, typically cost much less than comparable spots on television stations and
reach a more localized audience.
It is true, of course, that the plurality opinion in Denver Area relied, by analogy, on Pacifica in upholding a statute aimed at indecent programming on cable.
However, the Court has applied Pacifica only in addressing government regulations designed to protect children from sexually oriented information. <=193>
n192 The decision offers little support for restrictions on lawyer advertising, which is neither indecent nor aimed at children. To be sure, both broadcast and
cable television are "uniquely pervasive" in our lives, but that description tells us very little and does not explain why the adults who watch commercials for
legal services should be treated like children.
For the Iowa Supreme Court, which gave us Humphrey, "uniquely pervasive" seems to mean that television is an important and powerful force that can
"manipulate the viewer's mind and will." <=194> n193 Consequently, lawyer advertising on this medium must be restricted to prevent "abuse" and
"overreaching" and to foster "rational decision making" by consumers who are unable to tune out "irrelevant" information that "makes no contribution" to the
in- [*778] telligent selection of counsel. <=195> n194 The fact that a medium is powerful, however, justifies neither its regulation nor the sort of
paternalism evidenced in Humphrey.
Of course, one cannot ignore the role television advertising plays in today's consumer economy; American business would not spend billions of dollars on
such advertising unless it worked. As Professor Powe has noted, however, an argument for regulation based on effectiveness does not "distinguish television's
power from that of other media." After all, "we were a consumer society prior to the advent of television," and the argument "does not adequately explain why
so many Americans smoke cigarettes even though cigarette advertising has been banned from the airwaves" for twenty-five years. <=196> n195 At bottom, the
Humphrey court's concern about the power of television advertising seems to be based on fear. While we are confident that we understand the print media,
Professor Powe has written, "we are not as sure what [television] is doing to us, and so we attempt to regulate it to prevent it from doing what we do not know it
is doing." <=197> n196
Perhaps for this reason, the Humphrey court likened television to in-person solicitation in stressing its potential for abuse and deception. <=198> n197 The
comparison is hardly apt. For one thing, viewers may easily avoid television commercials they find objectionable, simply by averting their eyes, pushing the
"mute" button on the remote control, or going to the refrigerator for a cold beer. Moreover, a television commercial does not pressure anyone to make an
on-the-spot decision. "Viewers have the opportunity to reflect and consider their options before contacting [an] attorney," can turn away from a commercial
"without fear of being followed," and retain "ultimate control over the flow of information." <=199> n198 Wisely eschewing the comparison with [*779]
solicitation, other courts have no distinction between television and other types of public media. <=200> n199
Insofar as paternalism is concerned, the Supreme Court has been "especially skeptical of regulations that seek to keep people in the dark for what the
government perceives their own good." <=201> n200 Perhaps the best example of this skepticism in the lawyer advertising context is Peel v. Attorney
Registration & Disciplinary Comm'n, <=202> n201 in which the Court struck down an Illinois rule prohibiting lawyers for holding themselves out as
"certified" or as "specialists." An attorney challenged the rule after being publicly censured for accurately stating on his letterhead that he was licensed to
practice in three states and had been certified as a civil trial specialist by the National Board of Trial Advocacy. The state claimed that the rule was necessary
because consumers would invariably think that the NBTA certification was the product of official state action.
The Court was not impressed with this argument. Writing for the plurality, Justice Stevens rejected "the paternalistic assumption that the recipients of [the
attorney's] letterhead are no more discriminating than the audience for children's television." <=203> n202 In particular, he was satisfied that the public
"understands that licenses - to drive cars, to operate radio stations, to sell liquor - are issued by govern- [*780] mental authorities and that a host of
certificates - to commend job performance, to convey an educational degree, to commemorate a solo flight or a hole in one - are issued by private
organizations." <=204> n203 Clearly, the Court's focus was on the "average consumer," <=205> n204 not the most naive, foolish, or gullible members of
the public. <=206> n205
Another consideration is television's power and reach. Like it or not, television is the sole source of information for a large number of people, particularly
those of low and moderate income. <=207> n206 As the Connecticut Supreme Court has pointed out, many individuals in our society are functionally
illiterate, while others "do not avail themselves of printed material" because of "handicaps, financial circumstances, or personal preference." Consequently,
television and radio "are the informational media of choice for many, and of necessity for others." <=208> n207 If restrictions on television advertising
discourage lawyers from using the medium, then a substantial segment of the public is denied access to information about legal services. <=209> n208
Finally, empirical evidence suggests that strict limitations on television advertising are counterproductive inso- [*781] far as attempts to boost the image of
lawyers is concerned. As Professor Rotunda notes, <=210> n209 participants in an ABA study found lawyers less honest after viewing "informative"
television commercials most likely to be in compliance with restrictive state rules. In contrast, those who watched "stylish" commercials with actors and
dramatizations came away with the impression that lawyers are more intelligent. Sensational commercials featuring such tactics as screeching tires and
ambulance sirens had the same impact, and participants who saw these spots also thought that lawyers were more knowledgeable. <=211> n210 Overall, the
study concluded that "the content of commercials has no impact on the public's image of lawyers," although there is "a higher public image for lawyers who
advertise in stylish ways than for lawyers in general." <=212> n211
Although severe restrictions on television advertising by lawyers may well be constitutional, it does not necessarily follow that they are sound as a matter of
policy. All advertising, on all media, presents some risk of deception. "Even the most straightforward and truthful communication may mislead those [people]
who take it too literally, give it too much credence, misunderstand its substance, or draw false implications from it." <=213> n212 Moreover, television is not
a hobgoblin, and television advertising should not be viewed as an evil tool used to manipulate the masses. By their very nature, television commercials contain
only a limited amount of information, are impersonal and ephemeral, and, like other advertising, can easily be ignored. <=214> n213
In addition, concern about the impact of television advertising on the dignity of the legal profession is unwar- [*782] ranted. As noted above, the empirical
evidence suggests that television commercials simply have no effect on the public's perception of lawyers, which is shaped more significantly by news accounts,
television programs, movies, and John Grisham's best-selling novels. <=215> n214 But even if we are worried about the possibility of a negative impact, the
market tends to be self-correcting: lawyers are not likely to air commercials which, in the long run, might tarnish their own reputations or damage consumer
trust. <=216> n215 Moreover, bar associations (as well as individual lawyers and law firms) may themselves take to the airwaves with commercials designed
to improve the profession's image or to warn consumers about the danger of hiring an attorney simply on the basis of a television spot. This is called
counterspeech, and it works very well. <=217> n216
As a profession, we have much more to worry about than television commercials that some of us consider distasteful. Our efforts to improve the image of
lawyers should be concentrated on disciplining those who break the law, take advantage of their clients, and otherwise abuse the public trust. Tacky television
spots are the least of our problems.
n1. Broadcast in August 1977, the thirty-second spot for the Jacoby & Meyers "legal clinics" featured a balding actor who portrayed a middle-aged,
middle-class man concerned about the cost of hiring a lawyer. "If you've got a legal problem and you're rich, you can afford an attorney," the actor said. "If
you're poor, you get legal aid. But if you're in the middle, you should know about ... Jacoby & Meyers." Mike France, Legal Clinics: Lights Go Out for
Storefronts, Nat'l L.J., December 12, 1994, at A1.
n2. 433 U.S. 350 (1977).
n3. In terms of revenue generated for broadcasters during 1993, commercials for legal services were among the "top twenty" categories of local spots in the
largest seventy-five television markets. Lawyer advertisements ranked sixteenth at $125,971,600, behind health clubs and reducing salons ($139,993,900) and
home centers and hardware stores ($137,838,200), and ahead of discount department stores ($118,625,900). American Bar Ass'n Comm'n on Advertising,
Lawyer Advertising at the Crossroads 61 n.12 (1995) (citing 1993 statistics from the Television Bureau of Advertising).
n4. In using this term, I realize that I am opening the door to charges of "class bias." As Professor Van Patten recently wrote: "One can detect a class bias
underlying the criticism of lawyer advertising. Advertising is tacky. The more established lawyer may get clients the old-fashioned way - by joining Rotary or a
country club." Jonathan K. Van Patten, Lawyer Advertising, Professional Ethics, and the Constitution, 40 S.D. L. Rev. 212, 225 (1995). In my own defense, I
do not think that all lawyer advertising is tacky, though some of it most certainly is. For summaries of some television spots which, in my view, are rather
clever, see Grievance Committee v. Trantolo, 470 A.2d 228, 229-230 n.1 (Conn. 1984). Of course, lawyers are not the only professionals guilty of tackiness in
advertising. For example, a recent magazine advertisement for a surgeon specializing in penis enlargement featured a photograph of Michelangelo's David with
a disproportionately large leaf strategically placed over the genitals. See Tex. Monthly, July 1996, at 125.
n5. Roger Parloff, Hard Sell, Am. Law., June 1995, at 62.
n6. See Ronald D. Rotunda, Professionalism, Legal Advertising, and Free Speech in the Wake of Florida Bar v. Went for It, Inc., 49 Ark. L. Rev. 703, 732-33
(1996). The lawyer, Ken Hur, has claimed to be the "advertisingest lawyer in America." In addition to his television ads, he has driven a hearse with a sign
boasting a "no frill will for $15.00" and has sponsored a car in a demolition derby to promote his personal injury practice. American Bar Ass'n Comm'n on
Advertising, supra note 3, at 49.
n7. D.R. Stewart, Pro or con, lawyers can't ignore ads, Ark. Democrat-Gazette, June 4, 1995, at G1.
n8. Parloff, supra note 5.
n9. A California attorney known as the "motorcycle lawyer" aired testimonials from seemingly healthy clients who had received damages for personal
injuries, implying that he could get viewers something for nothing. In one commercial, an athletic looking young man is shown on the tennis court, racket in
The lawyer, he says, "got me $300,000 in less than two months." In another commercial, an apparently vigorous man is shown walking outdoors, with no sign
of disability or impairment. He tells viewers that the attorney "got me $175,000, even though the police report said I was totally at fault." Parloff, supra note 5.
On at least one occasion, a law firm's broadcast advertising has become the focal point of a legal malpractice case. An Alabama jury awarded a Tennessee
couple $1.5 million in compensatory damages and $9 million in puntive damages in their suit against a Birmingham personal injury firm that advertised
extensively on television. According to a local newspaper account, the firm represented itself as "skilled courtroom warriors [who] will seek financial awards
for injured people" but let the statute of limitations run on the plaintiffs' claims. Law Firm Must Pay Millions, Montgomery Advertiser, Oct. 1, 1995, at 6B.
n10. Model Rules of Professional Conduct Rule 7.1 (1983).
n11. Id. Rule 7.2(a).
n12. Id. Rule 7.1. The Arkansas Supreme Court has adopted these provisions without change. Arkansas Rules of Professional Conduct Rules 7.1, 7.2(a). See
Howard W. Brill, Arkansas Professional and Judicial Ethics 165-67 (3d ed. 1994).
n13. Model Rules of Professional Conduct, Comment to Rule 7.2 (1983).
n14. American Bar Ass'n Comm'n on Advertising, supra note 3, at 107.
n15. Iowa Code of Professional Responsibility DR 2-101(A).
n16. If an advertisement mentions contingency fees, it must state "whether percentages are computed before or after deduction of costs" and must advise the
public "that in the event of an adverse verdict or decision, the contingent fee litigant could be liable for court costs, expenses of investigation, expenses of
medical examinations, and costs of obtaining and presenting evidence." Id. DR 2-101(D)(3). If fixed fees, hourly rates, or fee ranges are advertised, the
following disclosure must appear, in print at least as large as largest print used for fee information:
(a) That the stated fixed fees or range of fees will be available only to clients whose matters are encompassed within the described services; and
(b) If the client's matters are not encompassed within the described services, or if an hourly fee rate is stated, the client is entitled, without obligation, to a
specific written estimate of the fees likely to be charged.
Id. DR 2-101(D)(4).
n17. If an advertisement "seeks to advise the institution of litigation," it must disclose "that the filing of a claim or suit solely to coerce a settlement or to
harass another could be illegal and could render the person so filing liable for malicious prosecution or abuse of process." Id. DR 2-101(F).
n18. A lawyer who meets certain eligibility requirements may state that his or her practice is "limited to" particular areas of law. Id. DR 2-105(A)(2)-(3). No
disclosure is necessary in this situation. If, however, the lawyer also accepts other types of legal matters, the advertisement must state that he or she is
"practicing primarily in" certain areas and must include the following notice if it appears in a telephone directory, newspaper, periodical, or legal directory:
A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated
field or law practice, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to
make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.
Id. DR 2-105(A)(4). A similar notice is necessary, in electronic as well as print media, if an area of practice is implied by other information in the
advertisement, such as the lawyer's membership in a professional organization:
Memberships and offices in legal fraternities and legal societies, technical and professional licenses, and memberships in scientific, technical and professional
associations and societies of law or field of practice does not mean that a lawyer is a specialist or expert in a field of law, nor does it mean that such a lawyer is
necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of
any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.
Id. DR 2-101(C).
n19. Id. DR 2-101(B)(5).
n20. Florida Rules of Professional Conduct Rule 4-7.1(a).
n21. Id. Rule 4-7.2(e).
n22. Id. Rule 4-7.2(f).
n23. Id. Rule 4-7.2(j). Although an advertisement may indicate that the attorney practices in a particular area, it cannot state or imply that he or she is a
specialist unless certain requirements have been met. Id. Rules 4-7.2(g) & 4-7.6. Moreover, a lawyer who claims special expertise or publicly limits his or her
practice to certain types of cases must have available for potential clients "written information setting forth the factual details of the lawyer's experience,
expertise, background, and training in such matters." Id. Rule 4-7.3(a)(2).
n24. Id. Rule 4-7.2(l) (advertisements must disclose "the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually
perform the services advertised principally practice law").
n25. Id. Rule 4-7.2(h). This rule provides:
Every advertisement and written communication that contains information about the lawyer's fee, including those that indicate no fee will be charged in the
absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee. Additionally, advertisements and written
communications indicating that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery shall disclose (1) that the
client will be liable for expenses regardless of outcome, if the lawyer so intends to hold the client liable; and (2) whether the percentage fee will be computed
before expenses are deducted from the recovery, if the lawyer intends to compute the percentage fee before deducting the expenses.
n26. Id. Rule 4-7.2(d). The required disclosure reads: "The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Before you decide, ask us to send you free written information about our qualifications and experience." A similar statement is required in advertisements for
lawyer referral services. As proposed by the Florida bar, the rule would have been applicable to all advertisements, including those in the electronic media. The
Florida Supreme Court, however, concluded that "a mandatory disclosure for electronic media ... should not be required, given the other special restrictions on
electronic advertising." Petition to Amend the Rules Relating to the Florida Bar - Advertising Issues, 571 So.2d 451, 459 (1990). The court expressly stated that
its decision on this point was based on policy grounds rather than constitutional requirements. Id.
n27. Florida Rules of Professional Conduct Rule 4-7.2(b).
n28. American Bar Ass'n Comm'n on Advertising, supra note 3, at 108.
n29. Parloff, supra note 5. The attorney, David Singer, had to tone down his commercials when the Florida rules took effect in 1991. In a well-known
commercial he aired from 1986 until 1990, a small boy was seen fidgeting in the chair at an old-fashioned barber shop. "If you don't stop moving," the barber
told him, "I'll cut your ear off." At that point, the boy turned in his chair, looked the barber straight in the eye, and said: "If you do, I'll call attorney David
n30. Mississippi Rules of Professional Conduct Rule 7.2(b). In Schwartz v. Welch, 890 F. Supp. 565, 575 (S.D. Miss. 1995), the court held Rule 7
unconstitutional in its entirety. As discussed below, this decision is of little precedential value. See text accompanying notes 149-51, infra.
n31. Nevada Rules of Professional Conduct Rule 196.
n32. In re Felmeister & Isaacs, 518 A.2d 188, 193 (N.J. 1986).
n34. Id. at 194-95.
n35. New Jersey Rules of Professional Conduct Rule 7.1(a). The range of fees "for specifically described legal services" must be accompanied by "a
reasonable disclosure of all relevant variables and considerations so that the statement would not be misunderstood or be deceptive." Id. Rule 7.1(a)(4)(iii).
With respect to hourly rates, the advertisement must make clear that "the total charge will vary according to the number of hours devoted to the matter, and in
relation to the varying hourly rates charged for the services of different individuals who may be assigned to the matter." Id. Rule 7.1(a)(4)(iv).
n36. Under Rule 7.4(a), an advertisement may indicate that the lawyer "does or does not practice in particular fields of law," but it may not "state or imply that
the lawyer has been recognized or certified as a specialist" except under the circumstances set forth in paragraph (b) of the rule. That paragraph provides:
A lawyer may communicate that the lawyer has been certified as a specialist or certified in a field of practice only when the communication is not false or
misleading, states the name of the certifying organization, and states that the certification has been granted by the Supreme Court of New Jersey or by an
organization that has been approved by the American Bar Association. If the certification has been granted by an organization that has not been approved, or has
been denied approval, by the Supreme Court of New Jersey or the American Bar Association, the absence or denial of such approval shall be clearly identified
in each such communication by the lawyer.
n37. Id. Rule 7.2(a).
n38. In re Felmeister & Isaacs, 518 A.2d at 194.
n39. Id. at 194-95.
n40. Id. at 196.
n41. Id. For a contrary view of this advertisement, see Rotunda, supra note 6, at 733.
n42. Arizona Rules of Professional Conduct Rule 7.1(b). This rule expressly defines the term, using language from the New Jersey Supreme Court's opinion
in Felmeister & Isaacs: "in both quantity and quality, the communication of factual information rationally related to the need for and selection of an attorney
predominates." Id. Even before the adoption of Rule 7.1(b), the Arizona Supreme Court had stated its view that "lawyer advertising, particularly on the
electronic media, should be predominately informational in nature." In re Zang, 741 P.2d 267, 279 (Ariz. 1987).
n43. Arizona Rules of Professional Conduct Rule 7.1(q)(1). The state bar had proposed a much more stringent provision based on the Iowa rule. See Terrance
C. Mead, Writing the Law of Lawyer Advertising, 23 Ariz. St. L.J. 191, 223-24 (1991).
n44. Arizona Rules of Professional Conduct Rule 7.1(q)(2). If the advertisement involves a particular legal service, the lawyer who appears on screen must be
the one who will actually perform that service, "unless the advertisement discloses that the service may be performed by other lawyers in the firm." Id.
n45. South Dakota Rules of Professional Conduct Rules 7.1(b), 71(c)(15) & 7.2(h).
n46. Texas Rules of Professional Conduct Rule 7.04(g). A comment accompanying the rule states that narration "in the third person by an actor" is not
prohibited, "as long as it is clear to those hearing or seeing the advertisement that the actor is not a lawyer prepared to perform services for the public." Id. Rule
7.04, comment 12.
n47. Pennsylvania Rules of Professional Conduct Rule 7.2(d).
n48. New Mexico Rules of Professional Conduct Rule 16-701(A)(2). See also Indiana Rules of Professional Conduct Rule 7.1(d)(3) (prohibiting any
communication that "contains a testimonial about or endorsement of a lawyer").
n49. E.g., Cal. Bus. & Prof. Code 6157.2(c)(3); Louisiana Rules of Professional Conduct Rule 7.1(a)(vi); Oregon Code of Professional Responsibility DR
2-101(A)(6); Virginia Code of Professional Responsibility DR 2-101(A)(4).
n50. E.g., Cal. Bus. & Prof. Code 6157.2(c)(2); Louisiana Rules of Professional Conduct Rule 7.1(a)(vii); Oregon Code of Professional Responsibility DR
2-101(A)(10); Pennsylvania Rules of Professional Conduct Rule 7.2(g); Virginia Code of Professional Responsibility DR 2-101(A)(5).
n51. See American Bar Ass'n Comm'n on Advertising, supra note 3, at 110-11. According to one lawyer who advertises on television, "the consumer reaction
to disclaimers would be the same as a requirement to hang a nuclear waste sign around his neck." Id. at 123 n.56. Disclaimers that "require the lawyer to convey
a negative or mixed message could inhibit the dissemination of commercial information and offend First Amendment interests." Linda Sorenson Ewald,
Content Regulation of Lawyer Advertising: An Era of Change, 3 Geo. J. Legal Ethics 429, 493-94 (1990) (footnotes omitted).
n52. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 n.8 (1981) (noting that different forms of media present different First Amendment
n53. Red Lion Broadcasting Co. v. Federal Communications Comm'n, 395 U.S. 367, 376 (1969).
n54. Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726, 748-49 (1978).
n55. 319 U.S. 190 (1943). Initially, radio was considered an entertainment medium that enjoyed no First Amendment protection. See Lucas A. Powe, Jr.,
American Broadcasting and the First Amendment 13-30 (1987).
n56. National Broadcasting Co. v. United States, 319 U.S. 190, 212 (1943). In the early days of broadcasting, the law governing radio consisted of the
Wireless Ship Act of 1910, Ch. 379, 36 Stat. 629 (1910) and the Radio Act of 1912, Ch. 287, 37 Stat. 302 (1912). The former required that passenger ships be
outfitted with devices for radio communication, while the latter forbade the operation of a radio apparatus without a license from the Secretary of Commerce
and Labor. Because broadcasting as such did not exist at the time, the 1912 act did not address it.
n57. Ch. 169, 44 Stat. 1162 (1927). For an account of events leading to the act's passage, see Powe, supra note 55, at 52-67.
n58. Ch. 652, 48 Stat. 1064 (1934) (codified at 47 U.S.C.A. 151-701 (1991 & Supp. 1996)). The act has been amended from time to time over the years and
was significantly revised by the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).
n59. 47 U.S.C.A 303 (1991 & Supp. 1996). This regulatory standard, which initially appeared in the Radio Act of 1927, was borrowed from the areas of
transportation and public utilities. However, it was understood that "public interest for broadcasting, unlike that for transportation or utilities, would be defined
to include not only the issues of the need for service and who could provide it, but also the novel issue of what the service would be." Thomas G. Krattenmaker,
Telecommunications Law & Policy 11 (1994). The District of Columbia Circuit affirmed this understanding early on: because broadcasting is "impressed with a
public interest," the Federal Radio Commission "is necessarily called upon to consider the character and quality of the service to be rendered." KFKB
Broadcasting Ass'n v. Federal Radio Comm'n, 47 F.2d 670, 672 (D.C. Cir. 1931).
n60. This description of the spectrum scarcity theory is oversimplified; there are at least five versions or variations, each subject to criticism. See Matthew L.
Spitzer, Controlling the Content of Print and Broadcast, 58 S. Cal. L. Rev. 1349, 1358-64 (1985). Of course, even "traditional" forms of communication may be
subjected to reasonable time, place, and manner restrictions that are adequately justified without reference to the content of the speech. City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 428 (1993).
n61. Federal Communications Comm'n v. League of Women Voters, 468 U.S. 364, 377 (1984) (internal quotation omitted in part).
n62. 395 U.S. 367 (1969).
n63. For a detailed account, see Fred W. Friendly, The Good Guys, The Bad Guys, and The First Amendment (1976).
n64. The rule emerged in a series of FCC decisions, e.g., Times-Mirror Broadcasting Co., 24 P&F Radio Reg. 404 (1962), and was codified in 1967. See 32
Fed. Reg. 10303 (1967). For the present version, see 47 C.F.R. 73.1920 (1995).
n65. See generally Fairness Report, 48 F.C.C.2d 1 (1974).
n66. Red Lion Broadcasting Co., 395 U.S. at 386.
n67. Id. at 390.
n68. 418 U.S. 241 (1974). At issue there was the constitutionality of a Florida "right of reply" statute under which a newspaper that had assailed the "personal
character" of any candidate or attacked his official actions was required, upon request, to publish without charge the candidate's response. Patrick Tornillo, a
candidate for the state legislature, invoked the statute when the Miami Herald criticized him for his role in a teacher's strike. The newspaper refused, and the
candidate sued. Reversing a decision of the Florida Supreme Court in Tornillo's favor, the Court held the statute unconstitutional because it impermissibly
intruded into the function of editors. "The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the
paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment," Chief Justice
Burger wrote for the Court. "It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First
Amendment guarantees of a free press as they have evolved to this time." Id. at 258. The Court did not mention Red Lion.
n69. E.g., Powe, supra note 55, at 200-09; Spitzer, supra note 60, at 1358-64; Mark Fowler & Daniel Brenner, A Marketplace Approach to Broadcast
Regulation, 60 Tex. L. Rev. 207, 221-26 (1982).
n70. Federal Communications Comm'n v. League of Women Voters, 468 U.S. 364, 376 n.11 (1984). The Court again declined to revisit the issue in 1994.
Turner Broadcasting System, Inc. v. Federal Communications Comm'n, 114 S. Ct. 2445, 2457 (1994). Three years after the League of Women Voters case, the
FCC took issue with the notion of spectrum scarcity in the course of abolishing the fairness doctrine. Given the public's access to "a plethora of information
outlets," the FCC concluded that the scarcity rationale no longer "justifies differential First Amendment treatment of the print and broadcast media." In re
Syracuse Peace Council, 2 F.C.C. Rcd. 5043 (1987). The Court of Appeals for the District of Columbia Circuit affirmed the Commission's decision but did not
reach the First Amendment issue. Syracuse Peace Council v. Federal Communications Comm'n, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019
(1990). Ironically, the personal attack rule at issue in Red Lion remains in effect, although the FCC has repudiated a different fairness doctrine corollary that
imposed certain obligations on broadcasters in connection with elections involving ballot issues. See Arkansas AFL-CIO v. Federal Communications Comm'n,
11 F.3d 1430 (8th Cir. 1993).
n71. 438 U.S. 726 (1978).
n72. 18 U.S.C. 1464 (1994). Complementing this criminal statute are provisions in the Communications Act that authorize the FCC to order a station to
"cease and desist" programming contrary to section 1464, impose a forfeiture, and revoke its license. 47 U.S.C.A. 312(a) & (b), 503(b)(1)(D) (1991 & Supp.
n73. 438 U.S. at 729. The Court thoughtfully included a transcript of the entire monologue as an appendix to its opinion. Id. at 751-55. The words were shit,
piss, fuck, cunt, cocksucker, motherfucker, and tits. At the time of the Pacifica decision, the FCC had seven commissioners, and "industry rumor had it that, for
future enforcement efforts, each commissioner was assigned one word." Krattenmaker, supra note 59, at 164 n.6.
n74. 438 U.S. at 729-30. The complaint was filed six weeks after the broadcast by John R. Douglas, a member of the national planning board of Morality in
Media. His son was fifteen years old at the time. Powe, supra note 55, at 186.
n75. In re Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975).
n76. 438 U.S. at 741.
n77. Id. at 744.
n78. Id. at 748.
n79. Id. at 748-50 (citation and footnotes omitted). While portions of Justice Stevens' opinion did not command a majority, there was no such problem with
Part IV-C, the section containing the language quoted in the text. Justice Powell, in a separate opinion joined by Justice Blackmun, specifically agreed with
Justice Stevens' rationale and joined in Part IV-C of his opinion. Id. at 757-60 (Powell, J., concurring). Justices Brennan, Marshall, White, and Stewart
n80. New York v. Ferber, 458 U.S. 747, 757 (1982) (citing Pacifica and other cases for the proposition that states have a compelling interest in safeguarding
the physical and psychological well-being of children).
n81. Sable Communications of California, Inc. v. Federal Communications Comm'n, 492 U.S. 115, 127-28 (1989) (in contrast to broadcasting, "the dial-it
medium requires the listener to take affirmative steps to receive the communication," and the message received by a caller using a dial-a-porn service "is not so
invasive or surprising that it prevents an unwilling listener from avoiding exposure to it").
n82. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983) ("receipt of mail is far less intrusive and uncontrollable" than a broadcast program).
n83. 114 S. Ct. 2445 (1994).
n84. The "must-carry" requirements were upheld on remand. Turner Broadcasting System, Inc. v. Federal Communications Comm'n, 910 F. Supp. 734
(D.D.C. 1995), prob. juris. noted, 166 S. Ct. 907 (1996).
n85. Id. at 2456.
n86. Id. at 2457. Elaborating on this point, Justice Kennedy explained:
Given the rapid advances in fiber optics and digital compression technology, soon there may be no practical limitation on the number of speakers who may use
the cable medium. Nor is there any danger of physical interference between two cable speakers attempting to share the same channel. In light of these
fundamental technological differences between broadcast and cable transmission, application of the more relaxed standard of scrutiny adopted in Red Lion and
other broadcast cases is inapt when determining the First Amendment validity of cable regulation.
n87. Id. at 2466.
n88. Wilkinson v. Jones, 480 U.S. 926 (1987). Such a summary disposition is a decision on the merits that binds lower courts, although the Court itself does
not accord it to have the same precedential weight as decisions rendered by full opinion. See text accompanying notes 112-15, infra.
n89. 611 F. Supp. 1099 (D. Utah 1985), aff'd, 800 F.2d 989 (10th Cir. 1986), aff'd, 480 U.S. 926 (1987). For its part, the Tenth Circuit said: "The district court
has written a comprehensive opinion with which we agree, and to which we can add little of value. We affirm its judgment on the basis of the reasons stated in
the opinion." 800 F.2d at 991.
n90. 611 F. Supp. at 1113.
n91. Id. at 1116. See also id. at 1113 (discussing use of lock boxes and program guides). In an earlier case, the Eleventh Circuit had employed much the same
reasoning. Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985).
n92. 116 S. Ct. 2374 (1996).
n93. 47 U.S.C.A. 532(h) (1991 & Supp. 1996). Cable operators are required to set aside a certain percentage of their channels for leased access purposes. The
number varies according to the number of channels on the cable system; for example, systems with between thirty-six and fifty-four channels must typically
designate ten percent for leased access purposes, while systems with more than fifty-five must designate fifteen percent. Id. 532(b)(1). Also at issue in the
Denver case were related provisions that (1) required cable operators to segregate on a single channel, which could be blocked by subscribers, any indecent
leased access programming that they decided to allow, id. 532(j); and (2) authorized cable operators to prohibit indecent programming on public access,
educational, and governmental channels mandated under franchise agreements. Id. 531 (note). The Court held that both violated the First Amendment.
n94. Justices Stevens, O'Connor, and Souter joined the Breyer opinion. Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, concurred only
in the judgment, arguing that the Court should squarely address "how and to what extent the First Amendment protects cable operators, programmers, and
viewers from state and federal regulation." 116 S. Ct. at 2419. Justice Thomas would treat cable operators in the same fashion as newspaper editors and
bookstore owners. Just as the government cannot force an editor to publish a story or compel a bookstore to sell a particular book, he argued, the government
should not be able to require cable operators to allow others to transmit programming over their systems. Id. at 2421. That being the case, the statute "merely
restored part of the editorial discretion an operator would have had absent [the leased access requirement], without burdening the programmer's underlying
speech rights." Id. at 2424. Justice Kennedy, joined by Justice Ginsburg dissented. "The most disturbing aspect of the plurality opinion," Justice Kennedy wrote,
"[is] its evasion of any clear legal standard in deciding this case." Id. at 2405. In his view, cable operators are common carriers insofar as leased channels are
concerned, and a common-carriage mandate "serves the same function as a public forum." Id. at 2412. Applying the same standard that governs content-based
restrictions on speech in a public forum, Justice Kennedy concluded that the statute impermissibly gave cable operators the power of "selective exclusion," i.e.,
authority to prohibit certain programming because of its content. Id. at 2413. He also argued that the statute is not "narrowly tailored to serve a compelling
[governmental] interest." Id. at 2416.
n95. Id. at 2386 (internal citations omitted).
n96. Id. at 2388.
n98. Id. at 2385.
n99. Id. at 2402 (Souter, J., concurring). In a footnote appended to the material quoted in the text, Justice Souter cited sources from the World Wide Web. Id.
at n.4. He is apparently the first member of the Court to use such cyber-citations.
n100. 433 U.S. at 383.
n101. Id. at 384.
n102. 333 F. Supp. 582 (D.D.C. 1971), aff'd, 405 U.S. 1000 (1972). Justice Blackmun cited this case with a "cf." signal, which, according to the vaunted
Bluebook, means that it "supports a proposition different from the main proposition but sufficiently analogous to lend support." The Bluebook: A Uniform
System of Citation 23 (15th ed. 1991).
n103. 15 U.S.C. 1335 (1994). As originally enacted, the statute provided that "it shall be unlawful to advertise cigarettes on any medium of electronic
communication subject to the jurisdiction of the Federal Communications Commission." Pub. L. No. 91-222, 6 (1970). It was amended to include "little cigars"
in 1973. Pub. L. No. 93-109, 3 (1973). Since 1986, advertisements for "smokeless tobacco" products have also been prohibited. 15 U.S.C. 4402(f) (1994).
n104. 405 U.S. 1000 (1971).
n105. As the court pointed out, broadcasters "have lost no right to speak - they have only lost an ability to collect revenue from others for broadcasting their
commercial messages." 333 F. Supp. at 584. The tobacco companies were in no position to challenge the statute, since they had pushed for its enactment in
order to avoid the effects of anti-smoking messages that the Federal Communications Commission then required broadcasters to air as public service
announcements. See Banzhaf v. Federal Communications Comm'n, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842 (1969); John J. Watkins, The Mass Media
& The Law 421 (1990).
n106. 425 U.S. 748 (1976).
n107. Id. at 584.
n108. 333 F. Supp. at 586 (quoting Banzhaf v. Federal Communications Comm'n, 405 F.2d 1082, 1100 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969)).
n109. 333 F. Supp. at 585-86.
n110. 438 U.S. at 758-59. Justice Powell also cited Bates in this discussion.
n111. 377 N.W.2d 643 (Iowa 1985).
n112. Humphrey v. Committee on Professional Ethics & Conduct, 475 U.S. 1114 (1986). Justices White, Blackmun, and Stevens would have set the case for
n113. Hopfmann v. Connolly, 471 U.S. 459, 460 (1985); Hicks v. Miranda, 422 U.S. 332, 343-44 (1975). Lower courts may have difficulty determining the
"holding" of a summary disposition; indeed, the Supreme Court has noted that such decisions are often "somewhat opaque." Gibson v. Berryhill, 411 U.S. 564,
576 (1973). See generally Robert L. Stern, et al., Supreme Court Practice 4.30 (6th ed. 1986).
n114. Metromedia v. City of San Diego, 453 U.S. 490, 500 (1981); Edelman v. Jordan, 415 U.S. 651, 670-71 (1974).
n115. As the Court has observed, its "cursory consideration" of an issue in cases decided by summary disposition "does not foreclose the opportunity to
consider [it] more fully" at some later point. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 309 n.1 (1976). Moreover, "upon fuller consideration
of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established." Fusari v.
Steinberg, 419 U.S. 379, 392 (1975) (Burger, C.J., concurring).
n116. In the first, a physician and a nurse are in an examination room, looking at an X-ray. "We see first-hand injuries caused by the neglect of others," the
physician says. "If you're seriously injured through the negligence of others, you should be talking to a lawyer." The second showed a printer standing in front of
a press. "I suffered loss of wages, incurred staggering medical bills, and endured pain and suffering[,] all through the negligence of others," he says. "I wasn't
aware of my legal rights. I should have been talking to a lawyer." In the third, the action takes place at a bowling alley. After one bowler notes that the team is
"one man short," another explains that the missing person was "injured through the negligence of others." The first bowler responds that the absentee "should be
talking to a lawyer." All three commercials conclude with a shot of a person portraying a receptionist in a law office, with the name of the law firm and its
address and phone number superimposed. A voiceover track tells viewers who have been "injured through the negligence of others" to call the law firm,
explains that cases involving personal injury and wrongful death are "handled on a percentage basis," and adds that there is "no charge for [the] initial
consultation." The phone number is mentioned three times. Committee on Professional Ethics & Conduct v. Humphrey, 355 N.W.2d 565, 566 (Iowa 1984).
n117. The television rules had withstood a similar challenge in federal court. See Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219, 1228-29
(S.D. Iowa 1981), vacated as moot, 686 F.2d 1278 (8th Cir. 1982).
n118. 355 N.W.2d at 569.
n119. Id. at 570. For the first proposition, the court cited an in-person solicitation case, Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). In
support of the other points, the court cited In re R.M.J., 455 U.S. 191 (1982), which involved limitations on the content of an advertisement and a prohibition
on the use of direct mail.
n120. 355 N.W.2d at 571.
n121. Id. at 570.
n122. 471 U.S. 626 (1985).
n123. Humphrey v. Committee on Professional Ethics & Conduct, 472 U.S. 1004 (1985). The Court took this step on June 10, 1985. Zauderer was decided on
May 28, 1985.
n124. 471 U.S. at 632. See id. at 632 n.4 (setting out full text of rule).
n125. Id. at 647.
n127. Id. at 648.
n130. Id. at 649. The Court noted that the state had failed to "cite any evidence or authority" in support of its contention that the potential abuses associated
with illustrations "cannot be combated by any means short of a blanket ban." Moreover, the Court observed that illustrations in lawyer advertising are "less
likely to lend themselves to material misrepresentations than illustrations in other forms of advertising" because decisions concerning legal services are rarely
"based on a consumer's assumptions about qualities of the product that can be represented visually[.]" Id. at 648-49.
n131. Committee on Professional Ethics & Conduct v. Humphrey, 377 N.W.2d 643 (1985).
n132. Id. at 645.
n133. Id. at 646.
n134. 471 U.S. at 673 (O'Connor, J., concurring in part, concurring in the judgment in part, and dissenting in part).
n135. Id. at n.1 (citing Bates). Chief Justice Burger and Justice Rehnquist joined Justice O'Connor's opinion. For its part, the majority in Zauderer indicated
that its holding did not include advertising in the electronic media: "An attorney may not be disciplined for soliciting legal business through printed advertising
containing truthful and nondeceptive information and advice regarding the legal rights of potential clients." Id. at 647.
n136. 377 N.W.2d at 646.
n138. Id. (footnote omitted). In a footnote, the court stated that, for the same reasons, electronic advertisements "are more difficult to police" than printed
advertisements, which are "easier to document, to trace, and to preserve." Id. at n.2.
n139. Id. at 647.
n141. Id. See also I. Terry Currie, Note, Attorney Advertising Over the Broadcast Media, 32 Vand. L. Rev. 755, 772 (1979) (arguing that the "persuasive
effects" of television advertising are "incidental" to informational content and "may be controlled reasonably by the bar's promulgation and strict enforcement of
appropriate guidelines and regulations").
n142. Humphrey v. Committee on Professional Ethics & Conduct, 475 U.S. 1114 (1986). This decision undoubtedly surprised commentators who had
suggested that the Court was prepared to "extend [Zauderer] to attorney advertising through all forms of visual media, not just printed illustrations." Leading
Cases, 99 Harv. L. Rev. 120, 199 (1985) (commenting on United States Supreme Court cases decided during the 1984 Term).
n143. See In re Zang, 741 P.2d 267, 279 (Ariz. 1987) (citing Humphrey); In re Felmeister & Isaacs, 518 A.2d 188, 201-02 (N.J. 1986) (citing Humphrey).
n144. The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar - Advertising Issues, 571 So.2d 451, 457-59 (1990).
n145. Id. at 459.
n147. Grievance Committee v. Trantolo, 470 A.2d 228, 234 (1984).
n148. See Connecticut Rules of Professional Conduct Rule 7.2(d) ("advertisements on the electronic media such as television and radio may contain the same
factual information and illustrations as permitted in advertisements in the print media").
n149. 890 F. Supp. 565 (S.D. Miss. 1995).
n150. Id. at 574-75.
n151. Id. at 575.
n152. 888 F. Supp. 1328 (E.D. Tex. 1995), aff'd without opinion, 100 F.3d 953 (5th Cir. 1996).
n153. See Texas Rules of Professional Conduct Rule 7.04(g) (anyone who "portrays a lawyer whose services or whose firm's services are being advertised, or
who narrates an advertisement as if he or she were such a lawyer, shall be one or more of the lawyers whose services are being advertised"). A comment
accompanying the rule states that narration "in the third person" by an actor is not prohibited, "as long as it is clear to those hearing or seeing the advertisement
that the actor is not a lawyer prepared to perform services for the public." Id. Rule 7.04, comment 12.
n154. 888 F. Supp. at 1356.
n157. Id. at n.27 (internal quotation marks omitted).
n158. 115 S. Ct. 2371 (1995).
n159. Rotunda, supra note 6, at 704. The Florida bar argued that the challenged rule was necessary to "preserve the integrity of the legal profession." The
Court described the rule as "an effort to protect the flagging reputations of Florida lawyers" and had "little trouble" finding that interest to be substantial. 115 S.
Ct. at 2376.
n160. 471 U.S. at 648.
n161. 115 S. Ct. at 2379 (quoting brief of the Florida Bar).
n162. Id. at 2381.
n163. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering 7.3:301, at 891-92 (Supp. 1996).
n164. 486 U.S. 466 (1988).
n165. Id. at 475-76.
n166. 115 S. Ct. at 2382-83. Moreover, as Professor Rotunda points out, the rule at issue in Florida Bar did not protect these interests very well, since the
thirty-day ban on direct mail solicitation applied only to the plaintiffs' bar. Thus, it "allowed defense lawyers or insurance adjustors to engage in intrusive,
unsolicited conduct." Rotunda, supra note 6, at 704 n.6.
n167. Id. at 2383.
n168. "The mere possibility that some members of the population might find [lawyer] advertising embarrassing or offensive cannot justify suppressing it."
471 U.S. at 648.
n169. 115 S. Ct. at 2377.
n170. As Professor Rotunda observes:
One does not have to be a rocket scientist to figure out that, if 27% did not like the mailing, then the remaining 73%, the great majority, had a contrary view.
For nearly three-quarters of the populace, the allegedly offensive mail was, at worse, neutral. For some recipients, the mail may have increased their regard for
the legal profession.
Rotunda, supra note 6, at 724. Moreover, the statistical evidence touted by Justice O'Connor apparently came from flawed surveys. In his dissenting opinion,
Justice Kennedy described the Florida Bar's data as "noteworthy for its incompetence" and based on "unvalidated studies." 115 S. Ct. at 2384.
n171. I disclaim any expertise in empirical research and generally adhere to the maxim that there are "lies, damn lies, and statistics."
n172. This study is summarized in American Bar Ass'n Comm'n on Advertising, supra note 3, at 72-73.
n173. Jim Rossie & Mollie Weighner, An Empirical Examination of the Iowa Bar's Approach to Regulating Lawyer Advertising, 77 Iowa L. Rev. 179, 240
(1991). The percentages increased - from 49% to 64% - with respect to a similar question about radio advertising. Moreover, the respondents' strong support for
lawyer advertising in general dropped only slightly, from 76% to 70%, after they watched television commercials for attorneys. Id.
n174. Id. A similar statement asked whether "advertising of services would lower the public's image of law firms and attorneys." Sixteen percent agreed prior
to seeing the commercials, compared to 20% afterwards. Id.
n175. Roy M. Sobleson, The Ethics of Advertising by Georgia Lawyers: Survey and Analysis, 6 Georgia St. Univ. L. Rev. 23, 62-63 (1989). Radio
advertising was viewed negatively by 49% of the respondents. However, the electronic media fared better than promotional products (62%) and billboards
(63%). Id. at 63. This study, as well as others, shows that "public support tends to erode as the media becomes more conspicuous." William E. Hornsby, Jr. &
Kurt Schimmel, Regulating Lawyer Advertising: Public Images and the Irresistible Aristotelian Impulse, 9 Geo. J. Legal Ethics 325, 339 (1996).
n176. American Bar Ass'n Comm'n on Advertising, supra note 3, at 76. Television had the highest negative rating in the Nevada study by a two-to-one
margin. Billboards were in the second spot (20%), while radio was third (15%). Id.
n178. Id. at 77. For a listing of other studies with similar results, Hornsby & Schimmel, supra note 175, at 340 n.64.
n179. The 1983 study has been criticized on the following grounds:
1) there is no indication of whether the data is statistically significant; 2) the report does not indicate the extent to which respondents had viewed ads or
commercials for legal services before the research; and 3) the contents of the commercials viewed by the respondents for the study have not been made
American Bar Ass'n Comm'n on Advertising, supra note 3, at 73. An additional criticism is that the study was commissioned by the Iowa bar in connection with
its proposal to limit lawyer advertising. Research under these circumstances is invariably "interpreted as showing less public support for [lawyer] advertising."
Hornsby & Schimmel, supra note 175, at 336 (citing the 1983 Iowa study as an example).
n180. American Bar Ass'n Comm'n on Advertising, supra note 3, at 81-82. See also Hornsby & Schimmel, supra note 175, at 356-57.
n181. Id. at 339 (citing Peter D. Hart Research Associates, Inc., A Survey of Attitudes Nationwide Toward Lawyers and the Legal System (1993)).
n182. 115 S. Ct. at 2381.
n183. Not suprisingly, there are differences of opinion on this point. Compare American Bar Ass'n Comm'n on Advertising, supra note 3, at 107-09
(criticizing state limits on television advertising), and Rotunda, supra note 6, at 734-36 (same) with Robert Battey, Note, Loosening the Glue: Lawyer
Advertising, Solicitation and Commercialism in 1995, 9 Geo. J. Legal Ethics 287, 313-17, 319-20 (1995) (calling for strict rules on all advertising, with the
most stringent reserved for television commercials), and E. Vernon F. Glenn, A Pox on Our House, 79 A.B.A.J. 116 (Aug. 1993) (arguing that television
advertising "compromises the profession").
n184. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996). If anyone is keeping score at home, here is the lineup:
STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respects to Parts I, II, and VII, in which SCALIA, KENNEDY,
SOUTER, THOMAS, and GINSBURG, JJ., joined, the opinion of the Court with respect to Part VIII, in which SCALIA, KENNEDY, SOUTER, and
GINSBURG, JJ., joined, an opinion with respect to Parts III and V, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined, an opinion with respect to
Part VI, in which KENNEDY, THOMAS, and GINSBURG, JJ., joined, and an opinion with respect to Part IV, in which KENNEDY and GINSBURG, JJ.,
joined. SCALIA, J., and THOMAS, J., filed opinions concurring in part and concurring in the judgment. O'CONNOR, J., filed an opinion concurring in the
judgment, in which REHNQUIST, C.J., and SOUTER and BREYER, JJ., joined.
116 S. Ct. at 1500-01. To be sure, Justice Stevens spoke for the Court in Parts I, II, VII, and VIII of the opinion. Those sections dealt, respectively, with the
procedural history of the case, the facts, the impact of the Twenty-First Amendment, and the conclusion.
n185. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).
n186. In the principal opinion, Justice Stevens set out the Central Hudson test but seemed to consider it too blunt an instrument. Distinguishing among types
of commercial speech, he argued that strict scrutiny is necessary "when a State entirely prohibits the dissemination of truthful, nonmisleading commercial
messages for reasons unrelated to the preservation of a fair bargaining process...." 116 S. Ct. at 1507. Because bans against commercial speech of this type
"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." Id. at 1508. While viewing this approach as a reformulation of Central Hudson, Justice Thomas argued that the requirement that the
challenged regulation must directly advance the asserted governmental interest should play no role when the interest "is one that is to be achieved through
keeping would-be recipients of the speech in the dark." Id. at 1518 (Thomas, J., concurring). For his part, Justice Scalia noted that he "shares Justice Stevens'
aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them," but also wrote that the
Central Hudson test "seems to me to have nothing more than policy intuition to support it." Id. at 1515 (Scalia, J., concurring).
n187. Insofar as defining obscenity is concerned, Justice Stewart put it best: "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart,
n188. Ewald, supra note 51, at 483.
n189. See text accompanying notes 68-70, supra.
n190. Turner Broadcasting, 114 S. Ct. at 2457.
n191. Denver Area, 116 S. Ct. at 2386.
n192. See text accompanying notes 79-82, supra.
n193. 355 N.W.2d at 571.
n194. Id. at 570.
n195. Powe, supra note 55, at 211-12.
n196. Id. at 214.
n197. 377 N.W.2d at 646.
n198. Bernadette Miragliotta, First Amendment: The Special Treatment of Legal Advertising, 1990 Ann. Surv. Am. L. 597, 626-27. As one court has put it,
"solicitation involves individual contact that is quite different from the abstract and impersonal nature of television, radio, [and] newspaper advertisements...."
Attorney Grievance Comm'n v. Weiss, 477 A.2d 1190, 1194 (Md. App. 1984).
n199. See, e.g., In re Utah State Bar Petition for Approval of Changes in Disciplinary Rules on Advertising, 647 P.2d 991, 992-93 (Utah. 1982); In re Petition
for Rule of Court Governing Lawyer Advertising, 564 S.W.2d 638, 643-44 (Tenn. 1978).
n200. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1508 (1996). See also Edenfield v. Fane, 507 U.S. 761, 767 (1993) ("the speaker and the
audience, not the government, assess the value of the information presented"); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562
(1980) ("we have rejected the "highly paternalistic' view that government has complete power to suppress or regulate commercial speech"); Linmark Assocs.,
Inc. v. Willingboro Township, 431 U.S. 85, 96-97 (1977) (assumption that consumers will "act irrationally" does not justify suppression of commercial speech);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (in contrast to a "highly paternalistic approach," the First
Amendment requires an assumption that commercial information "is not in itself harmful, [and] that people will perceive their own best interests if only they
are well enough informed").
n201. 496 U.S. 91 (1990).
n202. Id. at 105.
n203. Id. at 103.
n204. Id. at 105-106 n.13.
n205. The Court's approach mirrors that taken by the Federal Trade Commission in deceptive advertising cases: there must be a likelihood of deception,
measured from the perspective of the "reasonable consumer." See Federal Trade Comm'n, 1983 Policy Statement on Deception (Oct. 14, 1983), reproduced at
103 F.T.C. 174 (1984). At one time, the FTC took the position that advertising was deceptive if it simply had a tendency to deceive "the ignorant, the
unthinking, and the credulous." Charles of the Ritz Distrib. Corp. v. Federal Trade Comm'n, 143 F.2d 676, 679 (2d Cir. 1944). Under this standard, the FTC
later observed, an advertisement for "Danish pastry" would be deceptive if "a few misguided souls believe ... that all [such pastry] is made in Denmark." In re
Kirchner, 63 F.T.C. 1282, 1290 (1963).
n206. Model Rules of Professional Conduct Rule 7.2, comment.
n207. Grievance Committee v. Trantolo, 470 A.2d 228, 234 (Conn. 1984). Accord, In re Petition for Rule of Court Governing Lawyer Advertising, 564
S.W.2d 638, 643-44 (Tenn. 1978).
n208. See Michael Schein, Comment, Commercial Speech and the Limits of Legal Advertising, 58 Or. L. Rev. 193, 218 (1979) ("any regulation that excludes
the use of the most powerful and pervasive instruments of mass communication is necessarily inconsistent with, and in derogation of, the public's right to
know"); Miragliotta, supra note 198, at 631 (television advertising enables new law firms and firms offering standardized legal services to reach more people,
thereby generating more business and reducing the cost of their services).
n209. Rotunda, supra note 6, at 735.
n210. Hornsby & Schimmel, supra note 175, at 353 (describing the study in considerable detail).
n211. Id. at 356-57.
n212. Robert B. Reich, Preventing Deception in Commercial Speech, 54 N.Y.U. L. Rev. 775, 783 (1979).
N213. See Geoffrey C. Hazard, Jr., Russell G. Pearce & Jeffrey W. Stempel, Why Lawyers Should be Allowed to Advertise: A Market Analysis of Legal
Services, 58 N.Y.U. L. Rev. 1084, 1097 (1983).
n214. American Bar Ass'n Comm'n on Advertising, supra note 3, at 66, 69.
n215. Miragliotta, supra note 198, at 629.
n216. Just ask the tobacco industry, which convinced Congress to ban cigarette advertising from the airwaves because of the effectiveness of anti-smoking messages that broadcasters were at one time required to carry as public service announcements. See supra note 105.