Endless Pursuit: Capturing Technology at the Intersection of the First Amendment and Attorney Advertising

Authors

• Jan L. Jacobowitz, University of Miami School of Law
• Gayland O. Hethcoat II

Document Type

Article

Abstract

This Article focuses on the Florida Bar’s attempt to wrestle with this question in regulating attorney advertising. Among state bars, the Florida Bar has been a pioneer in regulating advertising, especially with respect to new technology. The Bar’s efforts have been years in the making, but only until recently did constitutional considerations percolate to the forefront as the Bar faced litigation threats, and federal courts issued opinions expounding on attorneys’ First Amendment rights. With the release of a proposed new code of advertising rules that is sure to draw the attention of other bars across the country, moreover, questions have arisen anew as to whether the Bar has drafted rules that will prove relevant and effective in vindicating the public interest while simultaneously respecting attorneys’ constitutional rights.

This Article offers an early analysis of the proposed rules and submits that, although they are an improvement over the current rules, they still retain features that attorneys are bound to attack in testing the rules’ constitutionality under the First Amendment commercial speech and void-for-vagueness doctrines. This conclusion follows from an overview of the Bar’s protracted decisions to regulate, deregulate, and reregulate attorney advertising, particularly on the Internet, and a summary of recent federal court cases that call into question some of the Bar rules in both their current and proposed forms.

Even if the proposed rules become law and overcome legal challenge, the process by which the Bar enacted them is one that other bars may want to learn from and avoid. Bureaucratic obfuscation and paternalism have been staple features of this process and at the cost of certainty, time, and resources. A better approach to follow is one where constitutional principles play a prominent role early on in regulators’ efforts to respond to the public policy challenges that accompany new innovations in society.

Recommended Citation

Jan L. Jacobowitz and Gayland O. Hethcoat II, Endless Pursuit: Capturing Technology at the Intersection of the First Amendment and Attorney Advertising, 17 J. Tech. L. & Pol'y (2012).
Available at: https://scholarship.law.ufl.edu/jtlp/vol17/iss1/2