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Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise

Last year, I blogged about Stern v. Bluestone, a New York decision that found a malpractice lawyer's (and legal blogger's) "Attorney Malpractice Report" newsletter to be advertising, because it implicitly promoted the author's professional services. I pointed out that the decision's rationale would apply to blogs, articles, treatises, and other materials that likewise implicitly (and usually deliberately) encourage people to hire the author. And though the case involved penalties for unsolicited faxes, its rationale would equally have applied to other speech restrictions:

And if the material is treated as "commercial speech," then the consequence isn't simply that it can't be sent as an unsolicited fax (something we law bloggers certainly don't do). Rather, we might well become strictly liable for any false statements we might post, rather than being protected by the "actual malice" test and the like. We would be punishable for any statements that the Bar might find to be "misleading." We could be required to post a wide range of government-compelled statements, which usually can't be required for nonadvertising media, but can be for advertisements. And the government might even be able to impose broader content-based restrictions on our speech, so long as the restrictions pass muster under the weaker Central Hudson test rather than the very demanding strict scrutiny test.

Today, New York's highest court reversed that decision. An excerpt:

During the roughly 16-month period from November 25, 2003 through March 29, 2005, plaintiff Peter Marc Stern, a solo practitioner, received 14 unasked-for facsimile messages (faxes) from defendant Andrew Lavoott Bluestone, a solo practitioner who specializes in bringing attorney malpractice actions. Each fax was entitled "Attorney Malpractice Report," and included Bluestone's contact information and web site addresses. The body of each fax consisted of a short essay about various topics related to attorney malpractice: fee disputes with clients, the elements of professional malpractice, liens, common causes of attorney malpractice litigation, and unexpected circumstances in which claims of attorney malpractice arise....

In 2006, when it amended its rules implementing the TCPA and the Junk Fax Prevention Act of 2005, the Federal Communications Commission (FCC) elaborated on what constitutes an "unsolicited advertisement." With respect to "informational messages" via facsimile, the FCC stated that

"facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement ... Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products."

We conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's framework for an "informational message," and thus the 14 faxes are not "unsolicited advertisement[s]" within the meaning of the TCPA. In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement" of his services, which "does not convert the entire communication into an advertisement."

This doesn't directly deal with the First Amendment question of whether such faxes are less-protected "commercial speech" (a term of art which roughly means "commercial advertising") rather than fully protected speech. But at least it sets aside the lower court decision that they are indeed less constitutionally protected.

I should note that there are plausible arguments that the government might be free to bar all unsolicited faxes, commercial or otherwise — or implement a "do not fax" list that applies equally to all such faxes — on the grounds that they wrongly trespass on recipients' property and consume recipients' resources. But the law doesn't didn't do that: Rather, it limits itself to commercial advertising. It's therefore important (both to the applicability of this statute and to the applicability of other rules) to properly distinguish what constitutes restricted (and more broadly restrictable) commercial advertising, and what doesn't.

Congratulations to Scott Greenfield (Simple Justice) on winning this important case for his client.

Bored Lawyer:

I should note that there are plausible arguments that the government might be free to bar all unsolicited faxes, commercial or otherwise — or implement a "do not fax" list that applies equally to all such faxes — on the grounds that they wrongly trespass on recipients' property and consume recipients' resources. But the law doesn't didn't do that: Rather, it limits itself to commercial advertising.


Correct me if I am wrong, but when the "Do Not Call" list law was passed, I seem to recall that charities and political advertisements were exempted, because the Supreme Court held that such unsolicited speech was constintutionally protected.

I agree with the sentiment. Regardless of content, Congress ought to be able to bar unsolicited faxes or phone calls. Just not clear that is the law today.
6.11.2009 10:34am
Soronel Haetir (mail):
I would also think that the resource consumption line is much weaker than it once was. It has been years since I used a fax machine for reception, that function now being handled by a computer. It is my choice whether paper gets used now.
6.11.2009 10:49am
Its_advertising:
The court misapplied the "incidental" comment from the FCC. It was intended to apply to things like logos and letterheads. The FCC has issued citations for similar faxes.

Other courts have, properly, looked at the motivation of the fax sender. If the motivation was advertising, then it is an advertisement.

All this will do is create more junk faxes, and the junk faxers will "spin" this decision to claim to their unsuspecting victims, that "is it OK to send a fax that says 'XYZ' so hire us to advertise your business!" The result: more businesses fall for bogus claims of legality by fax broadcasters, send illegal junk faxes, and then get sued and lose.
6.11.2009 11:01am
Sunshine is good:
Soronel, as someone who gets about 15-20 fax-as-emails a day, I have no way to tell the spam filter how to block which ones are okay and which ones are travel advertisements that have ignored my endless calls to be removed from their list. My time and email capacity are still measurable resources too! At least email spam is a little easier to block.
6.11.2009 11:02am
David M. Nieporent (www):
The court misapplied the "incidental" comment from the FCC. It was intended to apply to things like logos and letterheads. The FCC has issued citations for similar faxes.
At worst, that would make it a jury question. All the Court of Appeals did here was reverse a grant of summary judgment against Bluestone.

Your claim is mistaken; it was not intended to apply (solely) to things like logos and letterheads, as a review of the FCC guidelines illustrates. The FCC commented: "We may also consider the amount of space devoted to advertising versus the amount of space used for information or 'transactional' messages and whether the advertising is on behalf of the sender of the communication, such as an announcement in a membership organization's monthly newsletter about an upcoming conference, or whether the
advertising space is sold to and transmitted on behalf of entities other than the sender." That would hardly make sense if the only thing the law allowed was letterhead.

Moreover, pretty much all that Bluestone had in the faxes at issue was his letterhead; quoting from the appellate division:
Each "Attorney Malpractice Report" consists of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes include generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax is a box containing Bluestone's contact information, office address, telephone number, fax number and Web site address. Another Web site address appears at the top of the faxes. In seven of the faxes, the box also contains a telephone number to call in order to be removed "from this list." Six of the faxes contain the notation: "This is not an advertisement of the availability of services." Two of the faxes state that the report is "[p]resented as an [e]ducational document by the [l]aw offices of Andrew Lavoott Bluestone."
In other words, contact information, nothing more.

Finally, your claim that "Other courts have, properly, looked at the motivation of the fax sender. If the motivation was advertising, then it is an advertisement" is probably wrong, and is in any case not applicable here, because the lower court explicitly disclaimed any look at Bluestone's motives: "Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements."
6.11.2009 11:27am
Its_advertising:

Finally, your claim that "Other courts have, properly, looked at the motivation of the fax sender. If the motivation was advertising, then it is an advertisement" is probably wrong, and is in any case not applicable here, because the lower court explicitly disclaimed any look at Bluestone's motives: "Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements."



The lower appellate court dissent was correct.... motive counts. Since the majority's opinion has now been reversed, the dissent should have more attention paid to it.

In reversing the lower appellate court, the high court quoted from the FCC R&O:

"so long as the newsletter's primary purpose is informational, rather than to promote commercial products"

Primary purpose" counts.... and that is a fact question. It should go back for trial on the faxer's primary purpose.

Of course, the FCC could issue a citation to the guy, and instead of $500 per fax, he would be looking at $11K per fax.
6.11.2009 12:36pm
David M. Nieporent (www):
Primary purpose" counts.... and that is a fact question. It should go back for trial on the faxer's primary purpose.
Right, it's a fact question, which means that the CoA was right to reverse.

But I think motive ought not to count; "primary purpose" should be an objective question, not a subjective one.
6.11.2009 12:46pm
Read Much:
The lower appellate court dissent said that the majority decision was based on a finding of secret intent, not that they endorsed using intent. And, the dissent similarly concluded that there was no basis for finding that there was intent to advertise.

The mischief in allowing courts to reduce scrutiny or prohibit speech based upon findings of subjective intent, not on the face of a writing but hidden somewhere in the dark, inner reaches of some imaginary mind, is obvious.

It might rid some of the nuisance of an unsolicited fax, but at the expense of other people's free speech. Trade off your own free speech if you like, but not mine.
6.11.2009 1:03pm
Jim Hu:
FWIW, many years ago, scientific journals started adding fine print indicating that scholarly articles were advertisements because the authors paid page charges to publish.
6.11.2009 1:04pm
Its_advertising:
This is not a speech case. Speech rights do not give you the right to use another person's printing press, paper, and ink, without his permission.... even for pure speech. Lloyd Corp. v. Tanner, 407 U.S. 551, 568 (1972) ("[T]his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.")

A restaurant owner does not have a First Amendment right to walk into a Kinko's copy shop, make a copy of the restaurant's advertisement on Kinko's copy machine and paper without paying for it, then hand the advertisement to a Kinko's employee and solicit them to come to the restaurant to buy lunch.

Junk faxes cost money, time, and resources. "Furthermore, consideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved." Heffron, 452 U.S. at 651.

See, also, N.O.W. v. Operation Rescue, 37 F. 3d 646, 655 (D.C. Cir. 1994) ("Appellants have no general First Amendment right to trespass on private property."); Cincinnati v. Thompson, 643 N.E.2d 1157(Ohio App. 1994) (protesters not entitled to First Amendment protection for protesting on private property). "Under the present state of the law, freedom of speech does not entitle one to come upon the property of another and commit a trespass..." Hood v. Stafford, 378 S.W.2d 766, 772 (Tenn. 1964) (upholding ordinance that prohibited use of business property without consent for speech purposes). "[I]t is untenable that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct intend thereby to express an idea." In re Michael M., 86 Cal.App.4th 718, 729 (2001) citing Texas v. Johnson, 491 U.S. 397, 404 (1989). "The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another person's home or office." Dietmann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
Nor does the "ease of use" of the facsimile medium by fax advertisers confer constitutional protection. "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron, 452 U.S. at 647. "That more people may be more easily and cheaply reached . . . is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open." Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949). "There is simply no First Amendment right to trespass upon private property, even when access to that property may be the only, or most effective, way to reach the intended audience." Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417, 1434 (W.D.N.Y.1992) aff'd in relevant part, &rev'd in part, sub nom., 519 U.S. 357 (1997).
6.11.2009 2:25pm
Anti-spam:
I agree with the sentiment. Regardless of content, Congress ought to be able to bar unsolicited faxes or phone calls. Just not clear that is the law today.


I fundamentally disagree with the idea that Congress ought to be empowered to ban all unsolicited communications.

It's a matter of least restrictive means.

If someone wants to receive only solicited communications, then it's generally possible to whitelist all permitted senders. And generally possible to simply block any non- whitelisted communication.

Congress ought not to make a law for a case that's so simple to solve technically.

The hard case to solve technically is the case where a recipient wants some unsolicited communications, but not others. Then, no simple technical solution exists. Rather, solutions for the hard case demand shared social norms.
6.11.2009 3:16pm
Carolina:
The Office of Disciplinary Counsel in South Carolina takes the position that even social netowrking web pages (myspace, etc) are regulated "attorney advertising" if they mention the occupation of the owner of the page (i.e., attorney).

To the best of my knowledge, this has not been litigated yet, but it strikes me as an overreach.
6.11.2009 3:41pm
Its_advertising:

I fundamentally disagree with the idea that Congress ought to be empowered to ban all unsolicited communications.

That is not what this is about. No one is banning all unsolicited communications. This is a TPM restriction on the "manner" of faxes. It is no different from banning unsolicited graffiti or the sound trucks in Kovacs. Some methods of contact used in an unsolicited manner can (and should) certainly be banned.
6.11.2009 4:23pm
New World Dan (www):

If someone wants to receive only solicited communications, then it's generally possible to whitelist all permitted senders. And generally possible to simply block any non- whitelisted communication.


Actually, whitelisting is a pain in the arse. Also, you can't whitelist customers until after you first meet them.

Congress can, and should, regulate interstate communications, to a limited extent. SPAM, junk faxes, and junk phone calls cost me time and money. The thing about free speech is that it isn't a license to be a public nuisance. You're only free to send your message to a willing recipient.
6.11.2009 4:57pm
Its_advertising:
Opt-out versus opt-in is essentially a policy decision.

Some forms of communications should be opt-in. Others should be opt-out. And it depends on the forum. The Court in Metromedia noted that each form of communications has its own unique issues. My position is that in general, those that are a trespassory, impose costs on the recipient, and reach uninvited into a private forum should be opt-in.
6.11.2009 5:11pm
Anti-spam:
This is a TPM restriction on the "manner" of faxes. It is no different from banning unsolicited graffiti or the sound trucks in Kovacs.


Actually, a fax machine is easily distinguished from both graffitti painted on a wall, as well as from an amplified sound truck.

Calling a telephone number is not a physical trespass. And, unlike a sound-truck, the receiver has the option of turning off the sound of the ringer and ignoring the incoming call.

The actual differences between the various media demand distinct analyses of the relative burdens in their own contexts.
6.11.2009 5:14pm
Anti-spam:
Also, you can't whitelist customers until after you first meet them.


Oh, so you want unsolicited calls from (potential) customers.
6.11.2009 5:14pm
Its_advertising:

Calling a telephone number is not a physical trespass

Check your calendar... it is the 21st century and electronic trespass is actionable. Junk faxes are also trespass to chattels, as several courts have held. It is conversion when the paper and toner are used.
6.11.2009 5:20pm

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