Commercial Speech and the Distinction Between Unsolicited Speech and Speech in a Voluntarily Accessed Publication:

In the lawyer self-promotion thread, I pointed out a troublesome implication of a New York appellate decision applying the Telephone Consumer Protection Act. The decision held that a lawyer's unsolicited faxes explaining some legal issues (and implicitly promoting the lawyer as an expert whom readers should hire) were commercial advertising, and thus less-protected "commercial speech" for First Amendment purposes. The same logic, though, would suggest that a lawyer's blog, legal magazine article, treatise, or newspaper column (which also implicitly promote the lawyer as an expert whom readers should hire) would be commercial advertising, too.

Some readers suggested a possible distinction: Unsolicited faxes come to the recipient, simply because he's plugged his fax machine into the phone line; the other communications only come to him once he's opened up some publication or visited some Web site. And I agree that this is a distinction that makes us annoyed by unsolicited faxes (especially since they cost the recipient money by using his paper), and may justify special statutes aimed at such faxes.

But the trouble is that this distinction can't affect the judgment of whether something is "commercial speech" for First Amendment purposes. The commercial speech cases generally define the category to include speech that proposes a commercial transaction between the speaker (or the speaker's business partners) and the listener (or the listener's business partners). That includes proposals in unsolicited speech (such as mailings or in-person approaches) or in voluntarily accessed publications (such as newspapers, magazines, or TV programs). Many of the Court's "commercial speech" cases in fact involved commercial ads in newspapers, on television, on product labels, and the like.

An "Accident? Hire me" ad is equally a proposal of a commercial transaction if it's in an unsolicited fax, in a free newspaper dropped on your doorstep (which may have a combination of editorial and advertising), in a free newspaper you pick up, or in a newspaper which you pay to subscribe to. Likewise, an "Introduction to lawyer malpractice law" page is equally a combination of information and an implicit suggestion to hire (or refer people to) the author if it's in an unsolicited fax, in a free newspaper dropped on your doorstep, in a free newspaper you pick up, or in a magazine which you pay to subscribe to.

It may well be that the law should bar all unsolicited faxes, whether they are commercial or not. And it may well be that First Amendment law should treat restrictions on unsolicited speech differently from restrictions on solicited speech.

But the statute here distinguishes commercial speech from noncommercial speech; and it condemns the particular fax here on the grounds that it is commercial advertising, which is to say commercial speech. That logic can't be neatly cabined to apply only to annoying unsolicited faxes, when commercial speech can exist in lots of other media as well.

(For evidence that the line TCPA draws for faxes tracks the First Amendment commercial/noncommercial speech line, see the uncontradicted assertions in the Stern v. Bluestone dissent and the reasoning in Rudgayzer & Gratt v. Enine, Inc., 779 N.Y.S.2d 882 (2004), on which Stern relies.)

Think of a sliding scale-- at one end, treatises and law review articles, and way, way, way towards the other end, unsolicited faxes which remind you of the sender's availability to accept malpractice referrals. I am not concerned if the ravenous maw of the "commercial speech" doctrine gobbles up these junk faxes for purposes of the statute; I am pretty sure that this blog, Howappealing, and others are vastly different in degree from said faxes.

Of course the "commercial speech"/"political speech" doctrine itself has a number of its own problems-- its inherent elitism (common tradesmen and hawkers get short shrift, but elaborate protections abound for the political speech important to judges and their social and intellectual set), etc etc; but the drafters of the statute were just trying to take current Supreme Court doctrine into account.
2.6.2008 11:57pm
Might the unsolicited nature of the fax have informed the judge's determination that it was 'commerical speech'? After all, not many people go around faxing unsolicited essays to other people, but it is (or was) common to fax unsolicited ads.

I'm not a lawyer, but it seems to me that the 'commerciality' of speech depends on the situation and manner in which it was said, not just on the actual words. For example, suppose that a reporter interviews an employee of the Frobozz Electric Company and asks his opinion of Frobozz's new electric lanterns. If the employee answers "Our new lanterns are twice as bright at only half the weight, so I think many people can benefit from them", it seems to me that his response would still be fully protected by the First Amendment. But it the company produces a TV ad with the employee saying the exact same sentence, it seems that it would fall under the 'commercial speech' category.
2.7.2008 12:17am
TruePath (mail) (www):
Yah, I also fail to see how this differs from the standard judicial judgement call. In particular it seems no different from the question of whether some law or justification is pretextual.

I mean what about the simple test as to what the primary intent of the communication was. Most likely it's pretty clear that this lawyer is doing this for the primary purpose of generating revenue.
2.7.2008 3:09am
TruePath (mail) (www):
To be more clear I should have emphasized the distinction between a communication that is a pretextual suggestion of a commercial transaction (here are situations where a lawyer like me might win you money) and those that only indirectly promote an individual by resounding to their reputation.

In other words it really is the test of whether the communication was proposing a commercial transation. In a law blog the communication is at worst saying, "Look at my scholarship I'm a good lawyer" which doesn't propose a transaction the way this sort of fax does.
2.7.2008 3:14am
PatHMV (mail) (www):
Why can't context and method of transmission/communication make a difference? You seem to be suggesting that any given paragraph must be viewed on its own as either "commercial speech" or not. But we already know that context can make a difference; in this case, the court relied on the fact that the attorney's name and contact information were provided. That's one piece of the context.

Again, I'll use the example of taking one of your V.C. posts and paying a newspaper to run it in a quarter-page slot along with your name, e-mail address, and website information. That would, to me, pretty clearly be an advertisement, either for your own legal services or for the V.C. itself... even though the exact same post, in its original location on the website, would not be "commercial speech."
2.7.2008 8:29am
DiverDan (mail):
I was one who accused you of missing the point in the prior case, and perhaps I was hasty in my judgment. I agree that the reasoning of this case might be troubling if applied in a First Amendment case to distinguish between commercial and non-commercial speech (a distinction that is totally artificial and without basis in the text of the First Amendment). I remain convinced, however, that the First Amendment simply isn't an issue in this case, and would not be an issue even if the statute applied broadly to all junk faxes, commercial or not. Frankly, one of the downsides to the artificial distinction the Supreme Court has drawn between commercial and non-commercial speech in a First Amendment context is to convince legislatures that they have greater latitude in regulating commercial speech, not only as to time, place and method, but also as to content. Congress may well have limited the junk fax limitations in the Telephone Consumer Protection Act to commercial speech because of some concerns about First Amendment protections. However, the simple fact is that the First Amendment never was intended to protect, and does not protect, coercive conduct, which is precisely what spam faxing is - it compels an unwilling audience to not only listen to the message, but to pay for the means of delivery. As to concerns about this court's reasoning making its way into First Amendment jurisprudence, my own belief is that courts are smart enough to recognize that this was a simple case of statutory interpretation, whether a given unsolicited fax fell within the scope of the statutory prohibition, which ought not guide any decision on whether non-coercive speech is entitled to a lesser level of protection under the First Amendment.
2.7.2008 10:46am
Dick King:
Even political speech has time, p[lace and manner restrictions. Candidates do not get to solicit votes by mounting 120dB speakers in residential areas and blasting out otherwise protected speech at 2AM -- or even by carrying otherwise protected text on signs in the polling place.

A law forbidding unsolicited FAXes, no matter what the content, would not be all that complicated to draft.

2.7.2008 1:06pm
I'd disagree with this phrase "(which also implicitly promote the lawyer as an expert whom readers should hire)."
An unsolicited fax indeed promotes the lawyer as one to be hired. A blog post or article, on the other hand, does not "promote" one as an expert so much as it "portrays" one as an expert, and it "portrays" in a manner which does not suggest an imminent hiring of the "portrayed" person.
2.7.2008 2:12pm
I'll go out on a limb here. I'm beginning to think this is a tempest in a teapot due to conflation of terminology by both courts and lawyers.

Stern v. Bluestone interprets 47 USC 227, which regulates "unsolicited advertisement".

Unsolicited advertisement is a narrow and statutorily defined specie of speech, which includes some commercial speech as well as some non-commercial speech. "Unsolicited advertisement" is defined in in 47 U.S.C. § 227(a)(5):
(5) The term “unsolicited advertisement” means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.[emphases mine]
So, obviously all commercial speech is not unsolicited advertisement. Likewise, all unsolicited advertisement does not advertise the commercial availability of some property, goods or services.

Thus Stern v. Bluestone can be read as addressing only speech that (1) is transmitted without the addressee's consent, and (2) advertises the quality (not the availability) of any property, goods or services.

Speech addressing the quality of property, goods, or services is not necessarily commercial speech. "I think Eugene Volokh is a superb attorney" is not commercial speech. It is an opinion on an issue of public discussion, even if Eugene Volokh states it. If accompanied by a call to commercial action (such as "So, contact Eugene for excellent legal counsel at reasonable rates") it would be clear commercial speech. But otherwise it would not be.

But either message, delivered by force to an unwilling addressee under the statute would be an "unsolicited advertisement".
2.7.2008 3:05pm
I've never been comfortable with the differentiation of commercial speech. Probably more than half of all human communication is commercial speech when you realize that money is just a marker for value. When a candidate makes campaign promises in an attempt to get your vote, which is the essence of free speech, it's commercial. He's proposing an exchange of governmental changes you find valuable for your vote, which he finds valuable. Courtship is one long commercial solicitation of exchanging various valuable commodities. Every attempt to persuade or convince others is trying to sell an idea. The involvement of money is a distinction without a difference.
2.7.2008 8:09pm
Greg Beck (mail) (www):
If the line between "commercial" and "non-commercial" is too fuzzy, that in itself poses First Amendment problems because of the risk of arbitrary enforcement and hidden viewpoint discrimination. As in Cincinnati v. Discovery Network, 507 U.S. 410 (1993).
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2.11.2008 11:04am