Sunday, January 27, 2013

Tennessee Supreme Court considers new rules on advertising; FTC doesn't like them; I don't either

The Tennessee Supreme Court is considering proposals to amend the rules related to advertising but I find it difficult to believe most would withstand Constitutional scrutiny.  The proposals, among other things, would ban the use of actors playing the role of clients, prohibit ads narrated by well-known spokespeople, forbid certain background sounds and limit the images in ads to gavels, scales of justice, the Statue of Liberty, flags, eagles, courthouses, columns, law books or photos of attorneys.

I don't have a problem with requiring some form of disclaimer that says "actor" (or something like that) on the screen of a tv ad, but I don't think that any of the other proposals can be justified given the Supreme Court's cases on the issue.  As the Court has repeatedly held, the First Amendment prohibits the state from banning communications simply because they may be offensive to some or because they are delivered in a way that may be thought of as in poor taste.  If this ad is protected speech, then a tv ad narrated by well known actor certainly is.

Here is an example of what I mean: according to an article in the Blog of the Legal Times, the attorney who suggested the most restrictive rules has stated the new rules are needed because "some current and past lawyer advertisements rely on outrageous, misleading, and deceptive advertising techniques."

There are several problems with this "logic."  First, if the problem is that an ad is misleading, false or deceptive, there is no need for any new rules since, according to established Constitutional principles, misleading ads are not protected speech and the state can regulate them.  Second, if the problem is that an ad is "outrageous" - whatever that means - to have the state regulate the speaker for what this lawyer finds outrageous or offensive is contrary to established principles.

In other words, the argument simply has no basis in law or logic.

Interestingly, in response to the debate about the proposals, the Federal Trade Commission has issued a press release urging the Supreme Court of Tennessee to reject the new restrictions on attorney advertising, calling the proposed new rules unnecessarily broad and not in the best interest of consumers.

You can read the full report sent by the FTC to the Tennessee Supreme Court here, which concludes that the "FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while preserving competition and ensuring consumer access to truthful and non-misleading information. Ru1es that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Tennessee."

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