Comments on proposed changes to the ABA rules on advertising

As you know, the ABA is considering a series of changes to some of its rules related to advertising.  As I have commented before, the changes are somewhat controversial, but mostly because many think they are not bold enough.  Go here for a summary of the issues.

2Civility, a website of The Illinois Supreme Court Commission on Professionalism, has published a short comment on the proposed changes that includes interesting comments from readers.

Also, Avvo's Lawyernomics has published (here) a comment called "Why the ABA’s Proposed Attorney Advertising Rule Changes Don’t Go Nearly Far Enough."

Avvo's comment is interesting but not quite well reasoned.  One of its main points is that states should eliminate rule 7.2 (and some others) entirely because the only rule needed is 7.1 which bans the publication of false or misleading advertising.

First of all, if we are going to eliminate something entirely, I'd say let's get rid of the notion of "misleading."  But that aside, the problem with arguing that everything can be "dealt with" by looking at the principle in rule 7.1 is that that principle is different than the one expressed in rule 7.2.

The principle in 7.1 is that the state has the authority to regulate speech that is not protected by the First Amendment.  Evidently, if the speech is not protected, the state can regulate it.  The principle in rule 7.2 is that, in addition to that, under certain circumstances the state can also regulate speech that is protected.

Opponents of the regulation of advertising can argue that the state should not engage in the regulation  of protected speech or that the regulation should be more limited than it is now.  That is a valid argument over which reasonable people can disagree.  But the basis of the argument is a debate on whether regulation is a good idea as a policy matter; not that rule 7.1 already covers it.