In yesterday's ABA Journal, this article, titled, "Has Social Media Tightened Your Writing Style?" discusses how the use of social media makes us better writers. Going one step further, since the very essence of the practice of law is writing, it also suggests that social media makes us better lawyers.
I would tend to agree with this statement. Social media has forced us to constantly think about word composition, sentence verb agreement, and most importantly conciseness. What it used to take us five paragraphs now only takes us one. Twitter only allows 140 characters at a time, and a facebook status is restricted to 421 characters.
I would take this a step further though: not only has social media made us better writers in the way that we write, but also in the manner that we write. This is especially important as lawyers. What used to be a tool only used by a few elite schools, facebook has become a platform for the interaction with friends, family, and just about any other person you've ever met. Many of us have had the scenario occur where an argument resulted over something that was said on facebook or other social media. Therefore, we learn to think before we "speak (type)." I think that, in turn, this causes us as lawyers to learn how to speak professionally on arenas that would not typically be thought as professional. This in turn leads to the ability of lawyers to communicate via email in a manner that is consistently more professional. As a result, social media could thus be thought of as a tool which makes us better lawyers.
Thursday, March 31, 2011
Wednesday, March 30, 2011
Technology and client confidences: New rules on the horizon?
In Anonymous bloggers not escaping regulation of the state bar I discussed how anonymous lawyer bloggers are subject to the same regulations as public lawyer bloggers. Furthermore, as I have previously discussed, public lawyer bloggers are subject to regulations just as lawyers in other settings (such as newspapers, ads, and newsletters).
The question remains: Is this constitutional under the free speech clause of the First Amendment?
The issue of anonymous pamphletting was addressed in McIntyre v. Ohio Elections Comm’n.[1] In McIntyre Ms. McIntyre was charged with violating Ohio Code § 3599.09(A), which prohibited the distribution of pamphlets for the purpose of influencing voters in an election. [2] Some pamphlets contained Ms. McIntyre’s name, others indicated that she was a “concerned parent[] and tax payer.” [3] In holding that the speech was protected under the free speech clause of the First Amendment, the court stated:
The court announced the test, where the law burdens political speech as “exacting scrutiny,” meaning that the restriction will only be upheld if it is “narrowly tailored to serve an overriding state interest.” [5]
The question, therefore, in relation to blogging, is whether anonymous lawyer blogs are political speech. As discussed in previous blogs, there are countless anonymous lawyer blogs. Certainly some do not fall under the realm of political speech (such as those used in a manner consistent with a diary or personal journal). Indeed, many anonymous lawyer blogs cover a breadth of topics; the blog is often not restricted to one narrow subject.
Therefore, certainly some anonymous lawyer blogs fall in the narrow category of political speech. What about the rest? Do they deserve no protection merely because they are not political?
Neither the United States Supreme Court nor any federal circuit courts have considered the proper test for balancing the rights of anonymous online speech and the injured party. [6] As a result, federal and state courts have developed various standards that must be satisfied. [7] In the context of copyright infringement and defamation cases, the courts have generally examined “the degree of burden to apply to a particular plaintiff.” [8] Therefore, in expressive speech issues, courts tend to apply a “high burden test.” [9]
While we are not dealing directly with the issue of defamation, this is where most First Amendment expressive speech issues lie. The court in Dendrite International, Inc. v. Doe No. 3 addressed the issue of what test should be used to determine whether a defamation cause of action existed where the speaker was anonymous. [10] The court held that it would “carefully review[]. . .the complaint to determine whether plaintiff has set forth a prima facie cause of action.” [11]
While the court has never addressed the issue, this test could also be applicable in the lawyer blogging context. The test would be applied as follows: before the anonymous blogger’s identity would be required to be disclosed, the plaintiff, or, in the case of lawyer regulation, the state, would need to set forth a prima facie case of a violation of the Rules of Professional Conduct.
Using this test may present problems, however. One main issue is that it would often be relevant as to who is speaking before the alleged violation would indeed be prima facie shown to be a violation. For starters, setting up a blog requires no verification, per se. I could set up a blog tomorrow and use a pseudonym, and call myself DAC_MD. Blogging sites such as blogger do not require any proof that I am, indeed, an MD before I call myself one. Therefore, it is entirely possible for the state bar to stumble upon a blog where the blogger calls himself or herself a lawyer or JD, but does not hold the actual professional title. Unlike proof for some other types of claims, the very identity is a fact that affects the face of the claim.
Therefore, this test has its flaws. However, it appears that, at least in many anonymous lawyer blogging contexts, it might work to ensure that the Rules of Professional Conduct are being followed.
One issue related to the discussion of the test to be used to regulate anonymous lawyer speech is the problem that lawyers feel the need to remain anonymous to escape the enforcement of the Rules of Professional Conduct. Doesn’t this very fact, by itself, mean that the Rules of Professional Conduct are chilling lawyer speech?
This argument is circular, though. The reason that many lawyers blog anonymously is because they do not want to be regulated by the State bar. This leads to the possible conclusion that, if made public, something on their blog would subject them to sanctions by the state bar. Doesn’t this mean that this is not the type of speech we want to protect? Put another way, if the only reason that lawyer bloggers are choosing to remain anonymous is that they know that there is something about their speech that places them at risk for sanction, shouldn’t this be a reason for the speech to not be protected?
This argument brings back the discussion of the reason for lawyer regulation, which has been discussed in previous blogs. In the context of anonymous blogging, the concern for client confidences is at the forefront. Of the lawyer blogs I have read in order to research this topic, this appears to be what anonymous lawyer bloggers blog about the most. Client confidences, as previously discussed, must be kept between the client and the lawyer for one simple reason: without this rule, clients would not confide in lawyers. Those who blog anonymously think a) they may be not subject to the rules of professional conduct, or b) even if they are subject to the rules, they cannot be “caught” violating the rules because they are anonymous.
Neither of these beliefs, as discussed above, is true. This leads us to the fact that anonymous blogging serves no purpose. The discussion, then, must lead back to the value of lawyer speech in the context of client confidences. Without the protection of a client’s statements to the lawyer, the lawyer’s job would be meaningless. Therefore, the level of speech at issue on the side of the regulators (such as the state) is at its highest.
The value of the lawyer speech, however, could questionably be at its lowest. While lawyers have an interest in being able to inform the public about current issues in the law, I have some trouble finding very much value in someone else’s thoughts and feelings. Conversely, the lawyer may use a client confidence in the way of either a) using the client’s story as a “what not to do” context, or b) informing his or her readers of the inner-workings of the system. These interests fall into the category of furthering the administration of justice. In sharing client confidences for these reasons, the lawyer might teach others what not to do. Furthermore, they may inform other lawyers of how the system works, which, in turn, may make other lawyers better lawyers.
This issue is particularly troublesome in the specific context of blogging. Before the Internet became what it is today, this discussion regarding lawyer speech may not have even existed. The very reason that this discussion is even occurring is because blogs make a record of lawyer speech. While lawyers, in the past, could have published information via newsletters or the like, this was most likely not where most of this type of discussion was taking place. Rather, the level of speech occurring on blogs may be akin to an in-person conversation between lawyers. While it is technically a violation of the Model Rules of Professional Conduct to have a discussion about a client to another person, the Model Rules indicate that this behavior is acceptable if names are not disclosed, and the disclosure is for the purpose of attorney advice. [12] Allowing others to see the exchange that might take place, however, via the Internet, changes the scope of the problem. Therefore, I would conclude that even though there are no inherent First Amendment issues with regulating this speech, the rules need to be amended to account for the complexities that the Internet creates.
[1] McIntyre v. Ohio Elections Comm’n., 514 U.S. 334 (1995).
[2] Id. at 338.
[3] Id. at 337.
[4]Id. at 346.
[5] ]Id. at 347.
[6] Protections for Anonymous Online Speech, 987 PLI/Pat 711, 719.
[7] Supra.
[8] Krinsky v. Doe, 59 Cal.F4th 1154, 72 Cal.Rptr 3d 231 (6th Dist. 2008).
[9] Id.
[10] Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
[11] Id. at 760.
[12] Model rule 1.6 Comment 4 (This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved).
The question remains: Is this constitutional under the free speech clause of the First Amendment?
The issue of anonymous pamphletting was addressed in McIntyre v. Ohio Elections Comm’n.[1] In McIntyre Ms. McIntyre was charged with violating Ohio Code § 3599.09(A), which prohibited the distribution of pamphlets for the purpose of influencing voters in an election. [2] Some pamphlets contained Ms. McIntyre’s name, others indicated that she was a “concerned parent[] and tax payer.” [3] In holding that the speech was protected under the free speech clause of the First Amendment, the court stated:
Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by the Constitution. The First Amendment affords the broadest protection of such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social change desired by the people.[4]
The court announced the test, where the law burdens political speech as “exacting scrutiny,” meaning that the restriction will only be upheld if it is “narrowly tailored to serve an overriding state interest.” [5]
The question, therefore, in relation to blogging, is whether anonymous lawyer blogs are political speech. As discussed in previous blogs, there are countless anonymous lawyer blogs. Certainly some do not fall under the realm of political speech (such as those used in a manner consistent with a diary or personal journal). Indeed, many anonymous lawyer blogs cover a breadth of topics; the blog is often not restricted to one narrow subject.
Therefore, certainly some anonymous lawyer blogs fall in the narrow category of political speech. What about the rest? Do they deserve no protection merely because they are not political?
Neither the United States Supreme Court nor any federal circuit courts have considered the proper test for balancing the rights of anonymous online speech and the injured party. [6] As a result, federal and state courts have developed various standards that must be satisfied. [7] In the context of copyright infringement and defamation cases, the courts have generally examined “the degree of burden to apply to a particular plaintiff.” [8] Therefore, in expressive speech issues, courts tend to apply a “high burden test.” [9]
While we are not dealing directly with the issue of defamation, this is where most First Amendment expressive speech issues lie. The court in Dendrite International, Inc. v. Doe No. 3 addressed the issue of what test should be used to determine whether a defamation cause of action existed where the speaker was anonymous. [10] The court held that it would “carefully review[]. . .the complaint to determine whether plaintiff has set forth a prima facie cause of action.” [11]
While the court has never addressed the issue, this test could also be applicable in the lawyer blogging context. The test would be applied as follows: before the anonymous blogger’s identity would be required to be disclosed, the plaintiff, or, in the case of lawyer regulation, the state, would need to set forth a prima facie case of a violation of the Rules of Professional Conduct.
Using this test may present problems, however. One main issue is that it would often be relevant as to who is speaking before the alleged violation would indeed be prima facie shown to be a violation. For starters, setting up a blog requires no verification, per se. I could set up a blog tomorrow and use a pseudonym, and call myself DAC_MD. Blogging sites such as blogger do not require any proof that I am, indeed, an MD before I call myself one. Therefore, it is entirely possible for the state bar to stumble upon a blog where the blogger calls himself or herself a lawyer or JD, but does not hold the actual professional title. Unlike proof for some other types of claims, the very identity is a fact that affects the face of the claim.
Therefore, this test has its flaws. However, it appears that, at least in many anonymous lawyer blogging contexts, it might work to ensure that the Rules of Professional Conduct are being followed.
One issue related to the discussion of the test to be used to regulate anonymous lawyer speech is the problem that lawyers feel the need to remain anonymous to escape the enforcement of the Rules of Professional Conduct. Doesn’t this very fact, by itself, mean that the Rules of Professional Conduct are chilling lawyer speech?
This argument is circular, though. The reason that many lawyers blog anonymously is because they do not want to be regulated by the State bar. This leads to the possible conclusion that, if made public, something on their blog would subject them to sanctions by the state bar. Doesn’t this mean that this is not the type of speech we want to protect? Put another way, if the only reason that lawyer bloggers are choosing to remain anonymous is that they know that there is something about their speech that places them at risk for sanction, shouldn’t this be a reason for the speech to not be protected?
This argument brings back the discussion of the reason for lawyer regulation, which has been discussed in previous blogs. In the context of anonymous blogging, the concern for client confidences is at the forefront. Of the lawyer blogs I have read in order to research this topic, this appears to be what anonymous lawyer bloggers blog about the most. Client confidences, as previously discussed, must be kept between the client and the lawyer for one simple reason: without this rule, clients would not confide in lawyers. Those who blog anonymously think a) they may be not subject to the rules of professional conduct, or b) even if they are subject to the rules, they cannot be “caught” violating the rules because they are anonymous.
Neither of these beliefs, as discussed above, is true. This leads us to the fact that anonymous blogging serves no purpose. The discussion, then, must lead back to the value of lawyer speech in the context of client confidences. Without the protection of a client’s statements to the lawyer, the lawyer’s job would be meaningless. Therefore, the level of speech at issue on the side of the regulators (such as the state) is at its highest.
The value of the lawyer speech, however, could questionably be at its lowest. While lawyers have an interest in being able to inform the public about current issues in the law, I have some trouble finding very much value in someone else’s thoughts and feelings. Conversely, the lawyer may use a client confidence in the way of either a) using the client’s story as a “what not to do” context, or b) informing his or her readers of the inner-workings of the system. These interests fall into the category of furthering the administration of justice. In sharing client confidences for these reasons, the lawyer might teach others what not to do. Furthermore, they may inform other lawyers of how the system works, which, in turn, may make other lawyers better lawyers.
This issue is particularly troublesome in the specific context of blogging. Before the Internet became what it is today, this discussion regarding lawyer speech may not have even existed. The very reason that this discussion is even occurring is because blogs make a record of lawyer speech. While lawyers, in the past, could have published information via newsletters or the like, this was most likely not where most of this type of discussion was taking place. Rather, the level of speech occurring on blogs may be akin to an in-person conversation between lawyers. While it is technically a violation of the Model Rules of Professional Conduct to have a discussion about a client to another person, the Model Rules indicate that this behavior is acceptable if names are not disclosed, and the disclosure is for the purpose of attorney advice. [12] Allowing others to see the exchange that might take place, however, via the Internet, changes the scope of the problem. Therefore, I would conclude that even though there are no inherent First Amendment issues with regulating this speech, the rules need to be amended to account for the complexities that the Internet creates.
[1] McIntyre v. Ohio Elections Comm’n., 514 U.S. 334 (1995).
[2] Id. at 338.
[3] Id. at 337.
[4]Id. at 346.
[5] ]Id. at 347.
[6] Protections for Anonymous Online Speech, 987 PLI/Pat 711, 719.
[7] Supra.
[8] Krinsky v. Doe, 59 Cal.F4th 1154, 72 Cal.Rptr 3d 231 (6th Dist. 2008).
[9] Id.
[10] Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
[11] Id. at 760.
[12] Model rule 1.6 Comment 4 (This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved).
Friday, March 25, 2011
Hiring a lawyer: Too personal of a choice for the internet
This article is a follow up onLawyer blogs: Man in suit on doorstep or flyer in mailbox? However, it raises an issue that I did not consider. This article indicates that only nine percent of people use blogs as a way to find a lawyer. Many of my previous blogs suggested that blogging is the ‘hot’ new way for lawyers to market themselves. (see this post) If this is really the case, there is a disconnect between lawyers who think this is how they should market their services, and the clients they are attempting to attract.
The article suggests the following as one of the reasons for this disconnect:
This is a provocative idea, albeit one that most of us have considered: even though the Internet, in 2011, essentially makes the world go round, people just can’t be trusted on the Internet. This idea also suggests that the entire discussion regarding the allowance of blogs by the ABA as advertising is moot. Put another way, maybe it’s not worth all the trouble of even figuring out what the rules are because blogs aren’t attracting lawyers anyways. When people hire a lawyer, they want someone they can trust, and there is a stigma of the Internet as an untrustworthy source. I would question, however, why blogs are any different than the yellow pages or newspapers.
Also, if this is really the reason why people aren’t looking at blogs, then why do Fourty-Four percent of people look at lawyer websites? I would suggest that it’s not that the decision of who to hire is not a personal decision, but maybe potential clients don’t actually believe what a lawyer says in their own words. Even though a website is presumably written in the lawyer’s own words, it’s more professional. Therefore, the increase in the lack of professionalism is, perhaps, something that the clients actually would consider before they hire a lawyer.
*The comments of this article suggest that the study was biased due to the population that was surveyed.
The article suggests the following as one of the reasons for this disconnect:
“[I]t is possible that the selection of a lawyer for a personal legal matter is simply too intimate a decision to come into play in the everyday use of social media.”
This is a provocative idea, albeit one that most of us have considered: even though the Internet, in 2011, essentially makes the world go round, people just can’t be trusted on the Internet. This idea also suggests that the entire discussion regarding the allowance of blogs by the ABA as advertising is moot. Put another way, maybe it’s not worth all the trouble of even figuring out what the rules are because blogs aren’t attracting lawyers anyways. When people hire a lawyer, they want someone they can trust, and there is a stigma of the Internet as an untrustworthy source. I would question, however, why blogs are any different than the yellow pages or newspapers.
Also, if this is really the reason why people aren’t looking at blogs, then why do Fourty-Four percent of people look at lawyer websites? I would suggest that it’s not that the decision of who to hire is not a personal decision, but maybe potential clients don’t actually believe what a lawyer says in their own words. Even though a website is presumably written in the lawyer’s own words, it’s more professional. Therefore, the increase in the lack of professionalism is, perhaps, something that the clients actually would consider before they hire a lawyer.
*The comments of this article suggest that the study was biased due to the population that was surveyed.
Wednesday, March 23, 2011
Anonymous bloggers not escaping regulation of the state bar
I have discussed anonymous lawyer blogs in previous entries of this blog. Anonymous lawyer blogs would be defined as a lawyer blogger whose identity is either not disclosed or intentionally kept confidential. The first question is why bother making a blog anonymous? The answer to this question is simple for lawyers: The rules of professional conduct. I’ve discussed in numerous blogs the issues presented when a lawyer blog is anonymous.
This article discusses how user names can be found by firms.
This blog discusses how your exact location can be tracked.
And most disconcerting: In this blog I discussed how anonymous blogging does nothing to protect a lawyer from the rules of professional conduct.
Another issue to consider is that if a lawyer blogs anonymously, aren’t they sidestepping the very purpose of blogging in the first place? When I began this project, I naively believed that lawyers blogged because they liked to write, and liked to share their thoughts with the world. While this is not altogether untrue, my research has discovered that this by far not the main reason lawyers blog. They blog to network and to market. Sure, some blog because they actually like getting their thoughts out there (similar to a modern-day diary or journal), but it is clear that those who hide behind anonymity are not reaping in the same benefits as those who make their name known.
Do lawyers have a right to remain anonymous if they wish? This question will be answered in the context of the First Amendment: is there a constitutional right to anonymous speech? And if so, are can anonymous bloggers constitutionally be restricted by the same rules of professional conduct as public bloggers?
Before looking at the First Amendment concerns, we must look at the Model Rules themselves. There are countless Model Rules that may be applicable in the anonymous blogging context.
The Model rules that are applicable in the anonymous blogging context are Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6, and Model rule 8.4..
Model rule 1.6 is a major concern here. This rule states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
Comment 2 of the rule explains:
This rule makes no exception to situations of anonymity. It is clear that the purpose behind this rule is to encourage clients to speak honestly and openly with lawyers. Therefore, it could be argued that if a client was worried about having the facts of their case broadcasted on the Internet, even if the lawyers’ name remained anonymous, this might hurt the client-lawyer relationship. Seeing as the relationship between the client and lawyer is pivotal to the practice of law, if this relationship ceases to exist, so does the practice of law. Therefore, the issue is clearly that, while these bloggers believe they are not subject to the rules of professional conduct, they can still be sanctioned according to their local bar rules, if the state bar can discover their true personalities. As discussed above, this is not as hard as it seems.
There are countless anonymous lawyer blogs. Some examples are The Namby Pamby, Philadelphia Lawyer, and Woman of the Law. All three of these blogs discuss legal issues while also remaining anonymous. As is it is now clear that these bloggers are still subject to the rules of professional conduct even though they are anonymous, the question remains, is this constitutional? Furthermore, if it is constitutional, should the same rules apply to anonymous bloggers that apply to public bloggers? This will be discussed in a later blog.
This article discusses how user names can be found by firms.
This blog discusses how your exact location can be tracked.
And most disconcerting: In this blog I discussed how anonymous blogging does nothing to protect a lawyer from the rules of professional conduct.
Another issue to consider is that if a lawyer blogs anonymously, aren’t they sidestepping the very purpose of blogging in the first place? When I began this project, I naively believed that lawyers blogged because they liked to write, and liked to share their thoughts with the world. While this is not altogether untrue, my research has discovered that this by far not the main reason lawyers blog. They blog to network and to market. Sure, some blog because they actually like getting their thoughts out there (similar to a modern-day diary or journal), but it is clear that those who hide behind anonymity are not reaping in the same benefits as those who make their name known.
Do lawyers have a right to remain anonymous if they wish? This question will be answered in the context of the First Amendment: is there a constitutional right to anonymous speech? And if so, are can anonymous bloggers constitutionally be restricted by the same rules of professional conduct as public bloggers?
Before looking at the First Amendment concerns, we must look at the Model Rules themselves. There are countless Model Rules that may be applicable in the anonymous blogging context.
The Model rules that are applicable in the anonymous blogging context are Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6, and Model rule 8.4..
Model rule 1.6 is a major concern here. This rule states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
Comment 2 of the rule explains:
A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
This rule makes no exception to situations of anonymity. It is clear that the purpose behind this rule is to encourage clients to speak honestly and openly with lawyers. Therefore, it could be argued that if a client was worried about having the facts of their case broadcasted on the Internet, even if the lawyers’ name remained anonymous, this might hurt the client-lawyer relationship. Seeing as the relationship between the client and lawyer is pivotal to the practice of law, if this relationship ceases to exist, so does the practice of law. Therefore, the issue is clearly that, while these bloggers believe they are not subject to the rules of professional conduct, they can still be sanctioned according to their local bar rules, if the state bar can discover their true personalities. As discussed above, this is not as hard as it seems.
There are countless anonymous lawyer blogs. Some examples are The Namby Pamby, Philadelphia Lawyer, and Woman of the Law. All three of these blogs discuss legal issues while also remaining anonymous. As is it is now clear that these bloggers are still subject to the rules of professional conduct even though they are anonymous, the question remains, is this constitutional? Furthermore, if it is constitutional, should the same rules apply to anonymous bloggers that apply to public bloggers? This will be discussed in a later blog.
Tuesday, March 22, 2011
Laptops not just for surfing the 'net
This article makes a good argument for why technology is good.
Monday, March 21, 2011
Anonymous blogging: Cowardly?
This piece presents an interesting take on anonymous blogging. Hosteny of the “The Cowardice of Anonymous Bloggers” characterizes anonymous blogging as “cowardly.” Is this really the case though? Can’t anonymous blogging be characterized as a way to be able to express views in a manner that avoids regulation?
Sunday, March 20, 2011
Perception vs. Reality of the Legal Profession
Maybe I am pessimistic, or maybe because I am an "older" law student, but I always assumed chart # 2 was what law school would be like. Furthermore, it has pretty much lived up to all of my expectations.
Wednesday, March 16, 2011
Lawyer speech exposes the man behind the curtain
In Lawyer blogs: The go-to news source, I discussed how lawyer blogs should hold the same constitutional status as newspapers and newsletters due to their similarity. The next issue, therefore, is whether the Model Rules of professional conduct ( Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6 ) that govern lawyer speech are constitutional. If not, new rules need to be created for the specific issue of blogging. (as was suggested in The September Paper issued by the Ethics 20/20 Commission).
In N.Y. Times v. Sullivan,[1] the United States Supreme Court addressed the issue of whether speech made by the press regarding a public official can constitutionally be sanctioned in a libel action against the newspaper. Holding that the state cannot constitutionally restrict the speech of the press absent actual malice, the court stated, “[s]uch repression cannot be justified, if at all, only by a clear and present danger of the obstruction of justice.” [2]
The Court reasoned that criticism does not lose its constitutional protection merely because it is effective criticism which “[d]iminishes [the] official[s] reputation.”[3] The Court explained that the very purpose the founders cited for the Free Speech clause of the First Amendment was to allow for the criticism of government officials. This is evidenced in the reports prepared by James Madison, one of the founders of the constitution.
The Court further stated that proof of falsity is not enough. Citing Smith v. California, [4] the Court stated,
The Court, therefore, announced that proof of actual malice is required in order for a public official to recover for a defamatory statement. [5] Actual malice is defined as “[k]knowledge that [the statement] was false or with a reckless disregard of whether it was false or not.” [6]
The Court explained this stringent requirement in quoting Whitney v. California
It is clear to me that N.Y. Times v. Sullivan indirectly addresses the issue of lawyer speech in at least some contexts: namely trial publicity (Model Rule 3.6) and speech against the judiciary (Model Rule 8.2[8]).
Gentile v. State Bar[9] is directly on point with the issue of trial publicity. In Gentile, defense attorney Gentile made a statement to the press regarding the indictment of his client on criminal charges. [10] Six months after the press conference, Gentile was cited by the Nevada Bar Association for violating rule 3.6 of the state rules of professional conduct. [11] [12] Holding that the Nevada rule was void for vagueness, the court stated that “public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.”[13] The Court noted that, while Model Rule 3.6 appears to subsume the clear and present danger test discussed above, the Nevada Rule was not being applied in this manner.[14]
The Florida Bar v. Conway presented the issue of lawyer criticism of the judiciary in the specific context at the heart of this blog: lawyer blogging. [15] Conway was disciplined by the Florida Bar for making comments regarding a trial judge on his blog. The Florida Supreme Court ultimately affirmed the lower court’s imposition of sanctions on Conway for blogging. Conway raised First Amendment free speech concerns that the court did not address.
These two examples of real-world cases strike the heart of what is at issue in this blog: what is the value of lawyer speech? More specifically, what is the value of lawyer speech on lawyer blogs? Do lawyer blogs deserve more, less, or the same amount of protection as other sources of lawyer speech and non-lawyer speech?
First, the value of lawyer speech: I believe, as previously discussed, that it deserves at least the same amount of protection as the press. In certain areas, I submit, lawyer speech deserves the highest level of protection that exists. These areas are trial publicity and judicial criticism. While the state bar has good reason to be concerned with issues regarding prejudice to the defense and judicial reputation, the “officer of the court” distinction of lawyers cuts both ways in this context.
Stating that a lawyer is an officer of the court means a lawyer works for the court and thus has to show the utmost respect for it. However, it also means that, because lawyers work for the court, they should know, better than any other individual what is really going on behind the curtain. This places them in a better position than the lay person (ie the press) to criticize the court and the judicial processes. Isn’t this the “political duty” that N.Y. v. Sullivan referred to? How can lay people truly be part of the political process without being given an accurate account of the process from those who are on the front lines?
If lawyer speech is valuable, what is made of lawyer blogs? As previously discussed, lawyer blogs, unlike newspapers, newsletters, or even television, reaches every single person who has an Internet connection. The blog can be read anywhere-at home, at the office, on a couch, or in any public place. It can be as temporary or permanent as the blogger wants. However, a screen shot can be taken of the blog making it a permanently published source. Furthermore, even if the blog is taken down, it can still be accessed using certain types of software. In most ways, blogs are the current-day newspaper. Before the days of the Internet (and still currently used for those newspapers not made available wirelessly), if a person wanted to access an old newspaper article, they could go to the local public library and access an old article via microfiche.
One major difference, however, is the ability to make live comments on a blog. This varies per blog provider and according to the author of the blogger. A blogger can “turn on” comments, or restrict them; requiring the comment to be approved by the author before they are published on the Internet.
As a result, I would agree that lawyer speech requires heightened protection, especially in certain areas. In addition, while blogging is not entirely different from the news sources that existed when the Model Rules were written, new rules need to be written in order to assist lawyers in understanding how these rules are applied to blogging. Furthermore, the ABA needs to be mindful and especially careful in crafting these rules to ensure that they are not infringing on the First Amendment right to Free Speech.
[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
[2] Id. at 273.
[3] Id.
[4] Smith v. California, 361 U.S. 147, 153-154 (1959)
[5] Id. at 279-280.
[6] Id.
[7] Whitney v. California, 274 U.S. 357, 375-376 (1927) (emphasis added)
[8] Although it should be noted that Model Rule 8.2 encompasses the actual malice standard required to prove falsehood in a statement against a public official.
[9] Gentile v. State Bar, 501 U.S. 1030 (1991).
[10] Id. at 1030.
[11] Id. at 1030.
[12] Nevada Rule 177(1) prohibits an attorney from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of material prejudicing an adjudicative proceeding”
[13] Id. at 1035 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
[14] Id. at 1037.
[15] The Florida Bar v. Conway, 996 So.2d 213 (2008)
In N.Y. Times v. Sullivan,[1] the United States Supreme Court addressed the issue of whether speech made by the press regarding a public official can constitutionally be sanctioned in a libel action against the newspaper. Holding that the state cannot constitutionally restrict the speech of the press absent actual malice, the court stated, “[s]uch repression cannot be justified, if at all, only by a clear and present danger of the obstruction of justice.” [2]
The Court reasoned that criticism does not lose its constitutional protection merely because it is effective criticism which “[d]iminishes [the] official[s] reputation.”[3] The Court explained that the very purpose the founders cited for the Free Speech clause of the First Amendment was to allow for the criticism of government officials. This is evidenced in the reports prepared by James Madison, one of the founders of the constitution.
The Court further stated that proof of falsity is not enough. Citing Smith v. California, [4] the Court stated,
For if the bookseller is criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. . .And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. . .
The Court, therefore, announced that proof of actual malice is required in order for a public official to recover for a defamatory statement. [5] Actual malice is defined as “[k]knowledge that [the statement] was false or with a reckless disregard of whether it was false or not.” [6]
The Court explained this stringent requirement in quoting Whitney v. California
‘Those who won our independence believed. . .that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’[7]
It is clear to me that N.Y. Times v. Sullivan indirectly addresses the issue of lawyer speech in at least some contexts: namely trial publicity (Model Rule 3.6) and speech against the judiciary (Model Rule 8.2[8]).
Gentile v. State Bar[9] is directly on point with the issue of trial publicity. In Gentile, defense attorney Gentile made a statement to the press regarding the indictment of his client on criminal charges. [10] Six months after the press conference, Gentile was cited by the Nevada Bar Association for violating rule 3.6 of the state rules of professional conduct. [11] [12] Holding that the Nevada rule was void for vagueness, the court stated that “public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.”[13] The Court noted that, while Model Rule 3.6 appears to subsume the clear and present danger test discussed above, the Nevada Rule was not being applied in this manner.[14]
The Florida Bar v. Conway presented the issue of lawyer criticism of the judiciary in the specific context at the heart of this blog: lawyer blogging. [15] Conway was disciplined by the Florida Bar for making comments regarding a trial judge on his blog. The Florida Supreme Court ultimately affirmed the lower court’s imposition of sanctions on Conway for blogging. Conway raised First Amendment free speech concerns that the court did not address.
These two examples of real-world cases strike the heart of what is at issue in this blog: what is the value of lawyer speech? More specifically, what is the value of lawyer speech on lawyer blogs? Do lawyer blogs deserve more, less, or the same amount of protection as other sources of lawyer speech and non-lawyer speech?
First, the value of lawyer speech: I believe, as previously discussed, that it deserves at least the same amount of protection as the press. In certain areas, I submit, lawyer speech deserves the highest level of protection that exists. These areas are trial publicity and judicial criticism. While the state bar has good reason to be concerned with issues regarding prejudice to the defense and judicial reputation, the “officer of the court” distinction of lawyers cuts both ways in this context.
Stating that a lawyer is an officer of the court means a lawyer works for the court and thus has to show the utmost respect for it. However, it also means that, because lawyers work for the court, they should know, better than any other individual what is really going on behind the curtain. This places them in a better position than the lay person (ie the press) to criticize the court and the judicial processes. Isn’t this the “political duty” that N.Y. v. Sullivan referred to? How can lay people truly be part of the political process without being given an accurate account of the process from those who are on the front lines?
If lawyer speech is valuable, what is made of lawyer blogs? As previously discussed, lawyer blogs, unlike newspapers, newsletters, or even television, reaches every single person who has an Internet connection. The blog can be read anywhere-at home, at the office, on a couch, or in any public place. It can be as temporary or permanent as the blogger wants. However, a screen shot can be taken of the blog making it a permanently published source. Furthermore, even if the blog is taken down, it can still be accessed using certain types of software. In most ways, blogs are the current-day newspaper. Before the days of the Internet (and still currently used for those newspapers not made available wirelessly), if a person wanted to access an old newspaper article, they could go to the local public library and access an old article via microfiche.
One major difference, however, is the ability to make live comments on a blog. This varies per blog provider and according to the author of the blogger. A blogger can “turn on” comments, or restrict them; requiring the comment to be approved by the author before they are published on the Internet.
As a result, I would agree that lawyer speech requires heightened protection, especially in certain areas. In addition, while blogging is not entirely different from the news sources that existed when the Model Rules were written, new rules need to be written in order to assist lawyers in understanding how these rules are applied to blogging. Furthermore, the ABA needs to be mindful and especially careful in crafting these rules to ensure that they are not infringing on the First Amendment right to Free Speech.
[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
[2] Id. at 273.
[3] Id.
[4] Smith v. California, 361 U.S. 147, 153-154 (1959)
[5] Id. at 279-280.
[6] Id.
[7] Whitney v. California, 274 U.S. 357, 375-376 (1927) (emphasis added)
[8] Although it should be noted that Model Rule 8.2 encompasses the actual malice standard required to prove falsehood in a statement against a public official.
[9] Gentile v. State Bar, 501 U.S. 1030 (1991).
[10] Id. at 1030.
[11] Id. at 1030.
[12] Nevada Rule 177(1) prohibits an attorney from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of material prejudicing an adjudicative proceeding”
[13] Id. at 1035 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
[14] Id. at 1037.
[15] The Florida Bar v. Conway, 996 So.2d 213 (2008)
Tuesday, March 15, 2011
Monday, March 14, 2011
Facebook isn't just for college kids wasting time
Knowledge of facebook, twitter, and blogging can land you a job a prestigious law firm.
The interesting thing about this job opening is that it does not require a law degree. However, under Model Rule 5.3, the social media guru is still required to follow the same rules as an attorney.
Excuse me while I log out of facebook and go apply to this job.
The interesting thing about this job opening is that it does not require a law degree. However, under Model Rule 5.3, the social media guru is still required to follow the same rules as an attorney.
Excuse me while I log out of facebook and go apply to this job.
Friday, March 11, 2011
The right to be forgotten?
Do Americans really have a right to be forgotten?
This is a site my husband alerted me to the other day. So much for being forgotten once it’s been taken offline. (This site allows a person to type in a web address that existed at any point in time on the internet, ever. If, say, you had a site, say, back in 1999, you could type in the web address, and the year, and you would be taken back to that site, as it existed, in 1999. Scary stuff for lawyers who would rather their employers not know what they did in college).
This is a site my husband alerted me to the other day. So much for being forgotten once it’s been taken offline. (This site allows a person to type in a web address that existed at any point in time on the internet, ever. If, say, you had a site, say, back in 1999, you could type in the web address, and the year, and you would be taken back to that site, as it existed, in 1999. Scary stuff for lawyers who would rather their employers not know what they did in college).
Thursday, March 10, 2011
Who needs Westlaw when you've got lawyer blogs?
This blog discusses how blogs have become, rather than Westlaw, the primary research tool for lawyers. This argument strengthens my point in Lawyer blogs: The go-to news source that lawyer blogs are the current day equivalent to the newspaper or newsletter.
Wednesday, March 9, 2011
Lawyer blogs: The go-to news source
In Lawyer blogging: Current-day soapbox?, I discussed how the Supreme Court needs to re-examine its jurisprudence regarding the internet. However, even if the internet never becomes a public forum in the Supreme Court’s eyes, the regulation of lawyer blogs still have First Amendment concerns under N.Y. Times v. Sullivan. [1]
Before N.Y. Times v. Sullivan and its counterparts can be examined, we must first decide whether blogs could be considered news sources, and whether this causes blogs to be subject to regulation. Once it is determined that regulation exists, we will examine the First Amendment jurisprudence under N.Y. Times v. Sullivan
One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:
[S]hould the Commission propose amendments to Model Rules. . .1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?
First, let’s examine some blogs.
Not Guilty is a blog written by Mirriam Seddiq, a criminal defense and immigration attorney. Her blog features anecdotes from practice, as well as the current state of the law.
The Medical Malpractice Blog at Levin & Perconti focuses on current legal issues surrounding medical malpratice.
The JAA Blog is a blog that focuses on the Broward County [Florida] courts and judiciary.
Lastly, the Privacy Law Blog, written by attorneys at Proskauer, focuses on the summary and analyis of law relating to the issues surrounding privacy law.
It is clear that, by examining these blogs, lawyer blogs are nothing more than the current day newsletter. However, the major difference is that anyone with an internet connection has access to the blog. Furthermore, they may also function as newspapers. However, just as the comparison with newsletters, these blogs would be able to reach a much higher percentage of the population. In addition, unlike newspapers that are printed, blogs can be updated multiple times a day, in real time, shortly after an event occurs. While newspapers often have an early edition or a late edition newspaper, if something, say, happens at 3:58am, and the newspaper is set to print its late edition by 4am, the event will not be covered until the next press day.
More significantly, newspapers and other print media are meant to be read and discarded. With a lawyer blog, there is an online imprint of the blog. Granted, the author of the blog can make the choice to remove a particular blog; however, screen shots can still be taken. ‘
Therefore, it is clear that lawyer blogs at a minimum, deserve the same level of protection that newspapers receive. A number of restrictions are placed on lawyers regarding the amount and type of speech a lawyer is allowed to use regarding current and prospective clients, as well as the state of the case.
Model Rule 1.18 governs the lawyers’ communication with prospective clients. Model Rule 4.2 deals with the lawyers’ communication with persons unrepresented by counsel, and Model Rule 4.3 governs the lawyers’ communication with unrepresented persons.
Also at issue in the case of lawyer blogs as news sources are Model Rule 3.6 (Trial Publicity), and Model Rule 1.6 (Client Confidences).
The overarching theme of all of these rules is that a lawyer is restricted in what can be said to those whom are not their clients. Furthermore, a lawyer is restricted in what he or she can tell the public about the client. It is imperative, therefore, that we examine the First Amendment concerns because lawyer blogging, if effective, is intentionally public; therefore, the information which is disseminated may reach a wide variety of audience whom would otherwise not have access to the information. This will be discussed in the next blog.
[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
Before N.Y. Times v. Sullivan and its counterparts can be examined, we must first decide whether blogs could be considered news sources, and whether this causes blogs to be subject to regulation. Once it is determined that regulation exists, we will examine the First Amendment jurisprudence under N.Y. Times v. Sullivan
One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:
[S]hould the Commission propose amendments to Model Rules. . .1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?
First, let’s examine some blogs.
Not Guilty is a blog written by Mirriam Seddiq, a criminal defense and immigration attorney. Her blog features anecdotes from practice, as well as the current state of the law.
The Medical Malpractice Blog at Levin & Perconti focuses on current legal issues surrounding medical malpratice.
The JAA Blog is a blog that focuses on the Broward County [Florida] courts and judiciary.
Lastly, the Privacy Law Blog, written by attorneys at Proskauer, focuses on the summary and analyis of law relating to the issues surrounding privacy law.
It is clear that, by examining these blogs, lawyer blogs are nothing more than the current day newsletter. However, the major difference is that anyone with an internet connection has access to the blog. Furthermore, they may also function as newspapers. However, just as the comparison with newsletters, these blogs would be able to reach a much higher percentage of the population. In addition, unlike newspapers that are printed, blogs can be updated multiple times a day, in real time, shortly after an event occurs. While newspapers often have an early edition or a late edition newspaper, if something, say, happens at 3:58am, and the newspaper is set to print its late edition by 4am, the event will not be covered until the next press day.
More significantly, newspapers and other print media are meant to be read and discarded. With a lawyer blog, there is an online imprint of the blog. Granted, the author of the blog can make the choice to remove a particular blog; however, screen shots can still be taken. ‘
Therefore, it is clear that lawyer blogs at a minimum, deserve the same level of protection that newspapers receive. A number of restrictions are placed on lawyers regarding the amount and type of speech a lawyer is allowed to use regarding current and prospective clients, as well as the state of the case.
Model Rule 1.18 governs the lawyers’ communication with prospective clients. Model Rule 4.2 deals with the lawyers’ communication with persons unrepresented by counsel, and Model Rule 4.3 governs the lawyers’ communication with unrepresented persons.
Also at issue in the case of lawyer blogs as news sources are Model Rule 3.6 (Trial Publicity), and Model Rule 1.6 (Client Confidences).
The overarching theme of all of these rules is that a lawyer is restricted in what can be said to those whom are not their clients. Furthermore, a lawyer is restricted in what he or she can tell the public about the client. It is imperative, therefore, that we examine the First Amendment concerns because lawyer blogging, if effective, is intentionally public; therefore, the information which is disseminated may reach a wide variety of audience whom would otherwise not have access to the information. This will be discussed in the next blog.
[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
Friday, March 4, 2011
Can blogging really land you a job?
This article discusses how May 2011 graduates are getting jobs through using social media.
Here is how it works: You blog about a topic, you get people to read the blog, and when you go on an interview, you can point to the blog as a source of interest. If you're lucky, the person interviewing you has actually heard of your blog; thus, you skip the step of attempting to convince them that you are interested in X area of law. This is of particular interest because interviews are hard to come by and jobs are even harder to come by. If you're lucky enough to be given an interview, there is a chance you will be restricted to a very small amount of time (ie 15 minutes) to argue your "case" as to why you are the best fit.
I'd like to hear about others who have obtained jobs this way. I am not altogether convinced that this works. Also, I am somewhat fearful that having the blog might cause a potential employer to not want to hire you. (or is the old addage used for being friends with a person also true for future employers: you wouldn't want to work for someone who doesn't like what you represent?)
Here is how it works: You blog about a topic, you get people to read the blog, and when you go on an interview, you can point to the blog as a source of interest. If you're lucky, the person interviewing you has actually heard of your blog; thus, you skip the step of attempting to convince them that you are interested in X area of law. This is of particular interest because interviews are hard to come by and jobs are even harder to come by. If you're lucky enough to be given an interview, there is a chance you will be restricted to a very small amount of time (ie 15 minutes) to argue your "case" as to why you are the best fit.
I'd like to hear about others who have obtained jobs this way. I am not altogether convinced that this works. Also, I am somewhat fearful that having the blog might cause a potential employer to not want to hire you. (or is the old addage used for being friends with a person also true for future employers: you wouldn't want to work for someone who doesn't like what you represent?)
Thursday, March 3, 2011
The intersection of the Westboro protestors and lawyer blogging
The SCOTUS Synder v. Phelps opinion (ABA Journal synopsis here) has little to do with social media, but very relevant to the topic of Free Speech under the First Amendment.
(also, it is all the online law school community could talk about yesterday, which shows the impact that social media has on the dissemination of important matters such as this one. Within fifteen minutes of logging onto my laptop yesterday, I was informed that this opinion had come down, without having opened a newspaper or turning on the television)
Here are some powerful words from the Court, which ultimately held, in an 8:1 decision, that Phelps’ Free Speech rights must be upheld:
And this is at the core of the First Amendment:
The intersection between blogging and news sources as free speech under the First Amendment will be discussed in a later blog. In short, the Court uses the New York v. Sullivan [1] test to determine that the Westboro speech was protected. It stated,
My question is this: Are the Westboro Baptist Church protestors different than, say, an attorney who speaks unfavorably about a judge on a blog? (remember Kristine Peshek ? I don’t believe they are. In addition, blogs are arguably of a greater public concern because they are a permanent record of a public matter.
[1] New York Times v. Sullivan, 376 U. S. 254, 270 (1964).
(also, it is all the online law school community could talk about yesterday, which shows the impact that social media has on the dissemination of important matters such as this one. Within fifteen minutes of logging onto my laptop yesterday, I was informed that this opinion had come down, without having opened a newspaper or turning on the television)
Here are some powerful words from the Court, which ultimately held, in an 8:1 decision, that Phelps’ Free Speech rights must be upheld:
“Such a risk is unacceptable; in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”
And this is at the core of the First Amendment:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”
The intersection between blogging and news sources as free speech under the First Amendment will be discussed in a later blog. In short, the Court uses the New York v. Sullivan [1] test to determine that the Westboro speech was protected. It stated,
“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment.”
My question is this: Are the Westboro Baptist Church protestors different than, say, an attorney who speaks unfavorably about a judge on a blog? (remember Kristine Peshek ? I don’t believe they are. In addition, blogs are arguably of a greater public concern because they are a permanent record of a public matter.
[1] New York Times v. Sullivan, 376 U. S. 254, 270 (1964).
Wednesday, March 2, 2011
Lawyer blogging: Current-day soapbox?
As I discussed in this post regarding the discussion on whether blogs are advertising under the ABA standards, some blogs fall into the gray area of the definition of advertising. While some blogs are unquestionably advertising, others either may clearly not fall under the umbrella of advertising. Therefore, the answer to the ABA’s question on how blogs should be regulated becomes slightly more controversial where non-advertising lawyer blogs are concerned.
If a blog is not advertising the issue is whether the lawyer is subject to other Rules of Professional Conduct, and if so, whether these rules are constitutional under the First Amendment.
If lawyer blogs are not advertising, then what are they? I believe blogs could be categorized under several different umbrellas, including:
1. Public forums
2. News sources
For the topic of this post alone, I will limit my discussion to public forums. There are three classifications of forums: (1) Traditional public forums, (2) Limited public forums (or designated public forums), and (3) Closed forums.
Where an area is classified as a traditional public forum, the state may restrict the conduct only where the regulation is narrowly tailored to achieve a compelling state interest. Int’l Society for Krisha Consciousness, Inc., v. Lee. [1] A designated public forum is one that the state has granted limited access, and which the state proscribes such conduct may occur. [2] This conduct is subject to the same limitations as a traditional public forum. Lastly, where the forum fits in neither the traditional public forum nor designated public forum framework, the state regulation must only pass rational basis. [3]
First, a traditional public forum is one that has a “principal purpose...the free exchange of ideas.” [4] Furthermore, a traditional public forum is one in which the government has the “power to preserve the property under its control for the use to which it is lawfully dedicated.” [5] A public forum is not created merely because members of the public are permitted freely to visit a place owned by the government; the decision to make a forum open to the public must be intentional. [6] In Krishna, holding that airport terminals are not traditional public fora, the court reasoned that airports have only recently achieved their current size and character. Furthermore, due to the short history of air transport, it is only recently that religious and political groups have used airport terminals for the distribution of literature and similar activities.
Justice O’Connor’s concurring opinion discusses how the definition of the public forum must be expanded to meet the expectations of the current age. She states:
The issue remains, therefore, whether the internet is, in fact, a public forum. This issue has been addressed in several United States Supreme Court cases:
In Reno v. ACLU the court addressed the issue of whether two federal statutory provisions “protecting minors from indecencies on the internet” were constitutional under the freedom of speech clause of the First Amendment. [8] Holding that the statutes were unconstitutional on the basis of vaguess and overbreadth, the court stated:
However, the issue of whether the internet was indeed a public forum was never reached due the fact that the court found the statute to be vague and overbroad.
The United States Supreme Court addressed the issue of the internet as a public forum in U.S. v. American Library Ass’n, Inc. [10] In Library Ass’n, the court addressed the issue the usage of the internet in the public library. The court held that the internet is neither a traditional nor limited public forum. In reasoning that the public forum doctrine does not apply, the court stated:
The court also stated that, to qualify as a limited public forum, the government must make an affirmative choice to open up the property for use as a public forum. [12] The court reasoned that, in the case of the internet, the government did not create the internet in order to create a public forum for web publishers. Rather, the internet is offered as a service at the library in order to facilitate research, learning, and recreational activities.
Turning to the issue of blogging: it is clear that the United States Supreme Court has not yet been willing to extend the public forum doctrine to the internet. Is this right, though? Our latest jurisprudence regarding the internet occurred in 2003, 8 years ago. In 8 years, many changes have been made to the internet. While the internet was once a place where email could be exchanged, and chat rooms could be visited, it is now the very center upon which the world turns. On the internet, among other things, we can shop, connect with old friends and new, meet significant others, read the daily news, check the daily weather, and countless other tasks.
There is no way that our founding fathers could have anticipated the existence of the internet. In addition, even if the internet as a whole would not be considered by the Supreme Court to be a public forum, what about blogging specifically? Seeing that blogging could be considered to be akin to a news source, wouldn’t it be relevant that the founders intended newspapers to receive the highest protection? I would argue that blogs are traditional public forums. Under the O’Connor approach, the public forum doctrine must be expanded to facilitate the changing times of the technology world we currently live in.
Therefore, if we were to take the O’Connor approach to the public forum doctrine, for a regulation of a lawyer blog (or any blog, for that matter) to be held as constitutional under the First Amendment, the regulation must be narrowly tailored to achieve a compelling state interest. [13] This standard is stricter than the intermediate standard used in the commercial speech realm.
In a later blog I will discuss (1) the state’s interest in regulating lawyer speech, and (2) whether this interest is narrowly tailored under the Model Rules of Professional Conduct.
[1] 505 U.S. 672, 679 (1992).
[2] Id.
[3] Id. at 679.
[4] Id. at 679 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985)).
[5] Id. at 679-680 (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).
[6] Id. at 780 (citing Cornelius, 473 U.S. 788, 802(1985)).
[7] Id. at 698 (O’Connor, J., concurring).
[8] 521 U.S. 844 (1997).
[9] Id. at 870.
[10] 539 U.S. 194 (2003).
[11] Id. at 205 (quoting Krishna, 505 U.S. at 679).
[12] Id. at 206.
[13] Krishna, U.S. at 679.
If a blog is not advertising the issue is whether the lawyer is subject to other Rules of Professional Conduct, and if so, whether these rules are constitutional under the First Amendment.
If lawyer blogs are not advertising, then what are they? I believe blogs could be categorized under several different umbrellas, including:
1. Public forums
2. News sources
For the topic of this post alone, I will limit my discussion to public forums. There are three classifications of forums: (1) Traditional public forums, (2) Limited public forums (or designated public forums), and (3) Closed forums.
Where an area is classified as a traditional public forum, the state may restrict the conduct only where the regulation is narrowly tailored to achieve a compelling state interest. Int’l Society for Krisha Consciousness, Inc., v. Lee. [1] A designated public forum is one that the state has granted limited access, and which the state proscribes such conduct may occur. [2] This conduct is subject to the same limitations as a traditional public forum. Lastly, where the forum fits in neither the traditional public forum nor designated public forum framework, the state regulation must only pass rational basis. [3]
First, a traditional public forum is one that has a “principal purpose...the free exchange of ideas.” [4] Furthermore, a traditional public forum is one in which the government has the “power to preserve the property under its control for the use to which it is lawfully dedicated.” [5] A public forum is not created merely because members of the public are permitted freely to visit a place owned by the government; the decision to make a forum open to the public must be intentional. [6] In Krishna, holding that airport terminals are not traditional public fora, the court reasoned that airports have only recently achieved their current size and character. Furthermore, due to the short history of air transport, it is only recently that religious and political groups have used airport terminals for the distribution of literature and similar activities.
Justice O’Connor’s concurring opinion discusses how the definition of the public forum must be expanded to meet the expectations of the current age. She states:
In my view, our public forum doctrine must recognize [the] reality [that an airport is one of the few government owned spaces where may persons have extensive contact with other members of the public], and allow the creation of public forums that do not fit with the narrow tradition of streets, sidewalks, and parks. We have allowed flexibility in our doctrine to meet changing technologies in other areas of constitutional interpretation, and I believe we must do the same with the First Amendment. [7]
The issue remains, therefore, whether the internet is, in fact, a public forum. This issue has been addressed in several United States Supreme Court cases:
In Reno v. ACLU the court addressed the issue of whether two federal statutory provisions “protecting minors from indecencies on the internet” were constitutional under the freedom of speech clause of the First Amendment. [8] Holding that the statutes were unconstitutional on the basis of vaguess and overbreadth, the court stated:
Through the use of chatrooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail explorers, and newsgroups, the same individual can become a pamphleteer. . . The content on the internet is as diverse as human thought. [9]
However, the issue of whether the internet was indeed a public forum was never reached due the fact that the court found the statute to be vague and overbroad.
The United States Supreme Court addressed the issue of the internet as a public forum in U.S. v. American Library Ass’n, Inc. [10] In Library Ass’n, the court addressed the issue the usage of the internet in the public library. The court held that the internet is neither a traditional nor limited public forum. In reasoning that the public forum doctrine does not apply, the court stated:
[T]his resource, which did not exist until quite recently, has not “immemorially been held in trust for the use of the public and, time out of mind,…been used for the purposes of assembly, communication of thoughts between citizens, and discussing public questions.” [11]
The court also stated that, to qualify as a limited public forum, the government must make an affirmative choice to open up the property for use as a public forum. [12] The court reasoned that, in the case of the internet, the government did not create the internet in order to create a public forum for web publishers. Rather, the internet is offered as a service at the library in order to facilitate research, learning, and recreational activities.
Turning to the issue of blogging: it is clear that the United States Supreme Court has not yet been willing to extend the public forum doctrine to the internet. Is this right, though? Our latest jurisprudence regarding the internet occurred in 2003, 8 years ago. In 8 years, many changes have been made to the internet. While the internet was once a place where email could be exchanged, and chat rooms could be visited, it is now the very center upon which the world turns. On the internet, among other things, we can shop, connect with old friends and new, meet significant others, read the daily news, check the daily weather, and countless other tasks.
There is no way that our founding fathers could have anticipated the existence of the internet. In addition, even if the internet as a whole would not be considered by the Supreme Court to be a public forum, what about blogging specifically? Seeing that blogging could be considered to be akin to a news source, wouldn’t it be relevant that the founders intended newspapers to receive the highest protection? I would argue that blogs are traditional public forums. Under the O’Connor approach, the public forum doctrine must be expanded to facilitate the changing times of the technology world we currently live in.
Therefore, if we were to take the O’Connor approach to the public forum doctrine, for a regulation of a lawyer blog (or any blog, for that matter) to be held as constitutional under the First Amendment, the regulation must be narrowly tailored to achieve a compelling state interest. [13] This standard is stricter than the intermediate standard used in the commercial speech realm.
In a later blog I will discuss (1) the state’s interest in regulating lawyer speech, and (2) whether this interest is narrowly tailored under the Model Rules of Professional Conduct.
[1] 505 U.S. 672, 679 (1992).
[2] Id.
[3] Id. at 679.
[4] Id. at 679 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985)).
[5] Id. at 679-680 (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).
[6] Id. at 780 (citing Cornelius, 473 U.S. 788, 802(1985)).
[7] Id. at 698 (O’Connor, J., concurring).
[8] 521 U.S. 844 (1997).
[9] Id. at 870.
[10] 539 U.S. 194 (2003).
[11] Id. at 205 (quoting Krishna, 505 U.S. at 679).
[12] Id. at 206.
[13] Krishna, U.S. at 679.
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