Thursday, November 3, 2011

Is blogging a form of advertising?

For a number of years, criminal defense attorney Horace Hunter has used a blog as part of his firm's website to write short articles about what he considers to be important issues related to his cases.  Recently, the Ethics Counsel of the state of Virginia contacted him to tell him his blog was considered a form of advertisement and was not in compliance with the state rules.  Eventually, the bar has brought a misconduct charge against Hunter, who argues the blog is news and commentary, and that the bar’s attempt to discipline him, or to force him to add a disclaimer stating the blog is an ad, is a violation of his First Amendment rights.  You can take a look at the blog itself here.

This is a very interesting question and, given the rising number of firms that host blogs, it can have significant implications.

The case has generated a good deal of attention.

Here is an article in the Washington Post discussing the issue.

You can listen to podcasts discussing the case here and here.  The second one of these is an interview with attorney Hunter himself.

Here some very insightful comments from other bloggers:  here and here.

To paraphrase some of these comments, the problem with the case is that the issue should be about the content of the publication not about the type of publication.  The question should not be whether a blog is a form of advertising, but whether what is said in the blog is advertising.  As Carolyn Elefant of states:
. . . .if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  
I tend to agree with this statement, and it is easy to apply the analysis if the blog only publishes the same type of articles all the time.  But a blog is not just one article.  Each entry is an article in and of itself.  What if some are like ads and some are like law review articles?

Maybe a good compromise would be to require a general disclaimer in the firm's website (which is probably required already anyway), but not in each individual blog entry. 

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