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Michael Phelan
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Law Blogs: Protected Political Speech or Commercial Speech?

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Here in Richmond, Virginia, a local lawyer is challenging the Virginia State Bar’s authority to regulate his blog, claiming that such regulation violates his First Amendment free-speech rights. Like many attorneys, Horace Hunter of Hunter & Lipton, PC, has a web site that links to a blog site.

Mr. Hunter takes the position that his law blog consists of news and commentary, not commercial speech. Last year, the Virginia State Bar told Mr. Hunter to place an advertising disclaimer on his blog, contending that Hunter’s website, from which one can link to the blog, is part of an adverstisement because a purpose of the website is to market the firm. Hunter is a small-firm, criminal defense lawyer. One doubts whether the bar would have taken such a position with a 500 lawyer firm. Hunter courageously refused to comply with the bar’s request, and the bar charged him with misconduct. There is a bar hearing on this case tomorrow.

One of the Commonwealth’s leading constitutional law experts, Rodney Smolla, wrote a legal brief on Hunter’s behalf in which he had this to say:

The Commonwealth of Virginia would be absolutely prohibited from punishing any Virginia citizen or company for posting any of the information contained in Horace Hunter’s blogs on the Internet, period. The blog is not commercial speech but political speech that is protected by the First Amendment.

The blog "is not magically transformed into commercial speech merely because Horace Hunter happens to be a member of a highly regulated profession that draws clients for pay from the general public." "Virginia is attempting … to force Horace Hunter to profess that his blogs are not an exercise of his First Amendment right to express his views on matters of public concern, but instead are commercial advertisements soliciting legal business."

"Horace Hunter’s motivation is surely mixed," Smolla conceded. "A byproduct of the visibility such commentary brings may be to attract more legal business."

But he added, "If some underlying motive for pecuniary gain alone were all it took to transform speech from political to commercial, then large swatches of speech in the American marketplace of ideas would be disqualified from full First Amendment protection."

Smolla noted that the Richmond-based law firm of Hunton & Williams conducted a seminar on a successful case and its ramifications to an audience that might have included current or prospective clients. Smolla contends that if it is the position of the state bar that it could punish Hunton & Williams, then there would be no stopping point short of sweeping in virtually all speech by lawyers.

"By extension this logic would have empowered the Virginia State Bar, had it then been in existence, to impose on the great Virginia lawyer James Madison disclaimer requirements for his circulation of his essays in ‘The Federalist Papers,’ which, by the way, a modern day Madison practicing law in Virginia might well circulate in the form of an Internet blog," he wrote.

Interesting food for thought. There is no doubt that the bar has the authority to regulate certain speech. For example, in Virginia, a lawyer may not make false or misleading public statements or create an unjustified expectation about the results a lawyer can achieve. The question is whether Mr. Hunter is making false or misleading statements in the form of commercial speech or simply reporting on legal news. I’ve read several of Mr. Hunter’s blogs, on his site, "This Week in Richmond Criminal Defense." Here’s Hunter’s blog regarding whether "This Week in Richmohnd" requires an advertising disclaimer. Here are archived Hunter blogs. You be the judge. I think Dean Smolla hit the nail on the head. Hunter’s motives are clearly mixed. I’m sure he hopes his blog generates business. Just like I’m sure that Hunton & Williams hoped to generate business by sponsoring a seminar for, inter alia, prospective clients, in which the topic was a case H & W successfully handled. The bar should not regulate either form of speech.