On June 9, 2009, New York solo and Simple Justice blogger Scott Greenfield won a unanimous, landmark ruling from the the New York Court of Appeals in Stern v. Bluestone, which ruled that unsolicited, informational faxes distributed by solo Andrew Lavoot Bluestone on legal malpractice issues do not violate the Telephone_Consumer_Protection_Act_of_1991 or the Junk Fax Protection Act of 2005. The court’s decision spares Greenfield’s client $21,000 in damages. But more importantly, by holding that communications such as newsletters which convey substantive information are not advertising, the decision lends credence to the position that blogs (which also convey substantive information) should not be subject to bar regulations on advertising. For vindicating this important principle – and helping a fellow solo, Scott Greenfield is our pick for this installment of Shingular Sensations.
In the interview below, Scott shares the back story of the appeal, including his strategy for overturning two adverse lower court rulings and how the blogosphere helped play a role in the victory.
1. Describe how and at what stage of the proceeding you became involved in this case.
Andrew Lavoott Bluestone came to me when the action was commenced, recognizing that it was wise to seek a detached perspective on the proceeding. We work together, with Andrew doing much of the heavy lifting. At the first level appeal, Andrew prepared the brief and I handled the oral argument, where we were met with some judges who demonstrated little familiarity with First Amendment issues, and even less sympathy toward constitutional rights. At the Court of Appeals, Andrew again prepared the brief, which I then edited to conform to the arguments I intended to raise. While it was killing Andrew, as an attorney, to place his case in someone else’s hands, he realized that he couldn’t represent himself and thus placed himself in my hands.
2. What kind of experience did you have with this specific issues or in appellate matters prior to taking the case?
I’ve been enjoying the First Amendment my whole life, but it’s never been the primary focus of my practice. Rather, it was my background and experience in trial and appellate work that Andrew sought. The substantive area of law was not difficult to learn, but I brought the skills developed over 25 years of practicing law to the well of the courtroom. It’s far, far easier to learn substantive law than lawyering, and I was brought into the case because of my background as a litigator rather than as a First Amendment lawyer.
3. As you may know, since the passage of the Telecom Protection Act of 1991, filing suit against distributors of “junk faxes” has become a bit of a cottage industry – ( for example, see www.keytlaw.com/faxes/junkfaxlaw.htm or www.junkfaxes.org/news/faxcom_cb_suit.html.) Given the many suits where litigants successfully prevailed against junk faxers, how did you assess your client’s chances in this matter? What did you believe distinguished this case from others?
The junk fax cases suffer from a few internal problems; zealously defending often involves a greater cost than settling or acquiescing, so many litigants are unwilling to fight, or fight hard and competently. Also, many of these cases involved defendants who deserved to lose. The problem with junk faxes is real, and the law prohibiting them serves a very important purpose.
However, Andrew’s case was markedly different from many others, in that there was nothing about his faxes that fell within the law. His New York Attorney Malpractice Report was by no means an advertisement, except by the most cynical manipulation of reality. Ironically, some lawyers asked to be removed from the fax list, and they were. Far more called to be added to the list, seeking his Report. Go figure.
4. The New York Court of Appeals decision resolved this issue narrowly, by reference to the FCC regulations definining an “unsolicited advertisement.” Did you similarly adopt this narrow approach on briefs, or did you address broader First Amendment issues?
My approach at argument was to direct my attack to the big picture, the definitional implications of holding an attorney’s legal essay to be an advertisement merely because his name is attached. This held broad, and serious, negative consequences far beyond the fax aspect. I believe that the Court recognized the harm this case could cause to lawyers, and sought a way to reverse an ill-advised appellate decision without feeling compelled to define the parameters of attorney communications under the First Amendment.
5. What arguments did your opponents raise in their defense?
The plaintiff railed about the horrors of junk faxes, and the assumption that anything faxed by an attorney had to be a solicitation, since no attorney would possibly do anything for altruistic purposes. This fed on the impression, perhaps well deserved, that lawyers operate only from a mercenary perspective. We are all tainted by the fact that so many lawyers are marketing so strenuously that the profession is viewed, both from the inside and out, as so desperate for the buck that we do nothing without a profit motive.
6. Tell me about oral argument – what issues did the justices focus on? What concerns did they express either about your position or your opponents?
The New York Court of Appeals is a “hot bench,” fully familiar with the facts, arguments and law, and I barely made it through the first sentence of my argument before the interrogation began. I was challenged on every aspect of my position, particularly the propriety of hiding advertising within what would otherwise appear to be free speech. I found it particularly troubling that the judges expressed great disbelief that lawyers might act for non-pecuniary reasons. They appeared to have a remarkably cynical view of the profession.
My adversary, on the other hand, appeared to struggle with his response to some direct questions dealing with the fact that the New York Attorney Malpractice Report bore absolutely no indicia of commercial speech, and his responses appeared exaggerated and hyperbolic, not the sort of thing that appellate courts take kindly.
7. Could you predict, based on the oral argument, how the court would decide?
I could, but I wouldn’t. I never even think about predicting outcome. The decision will come soon enough, and until it does, one never knows how a court will rule. Plus, it’s just really bad karma.
8. Some (such as Volokh and myself) have argued that the outcome of this case could have implications for regulations of blogs. Others contend that faxes are inherently different from blogs because they “push” content instead of “pulling readers” and thus, are more intrusive and deserving of regulation. What is your opinion of this distinction?
Those who focused on the delivery mechanism missed the boat in this case. It was the definition of lawyer advertising that posed a grave threat to free speech. I see the separation as concrete versus concept, with those who can’t let go of the details failing to see the broader, more significant issue. Today, faxes are dinosaurs, and the junk fax problem isn’t nearly as big a deal as it was 15 or more years ago. But the definition of what constitutes lawyer advertising clearly implicates all speech and writing by lawyers, and a loose and careless definition in the junk fax context would come back to haunt us in a multitude of unforeseen ways with future technology.
9. Admittedly, the FCC regulation defines “unsoliticted advertisement” with respect to faxes. How do you think many of today’s legal blogs would hold up under this standard- do you think they would be classified as “advertisements” or informational communications?
As painful as it is to say, I suspect that about 90% of today’s legal blogs would fit the definition of an advertisement. While this 90% may only get 10% of the eyeballs, they are facially designed to market, and there is little question from the explicit language used that the bloggers are doing this for the primary, if not sole, purpose of advertising their wares.
10. The case was remanded – so what will happen next?
The case was remanded because the New York Court of Appeals is a court of limited jurisdiction, lacking the authority to dismiss the case. In light of the holding, however, I would expect that action to be summarily dismissed.
11. Any other comments?
One of the most valuable tools in my preparation for the Court of Appeals was the comments to the blog posts following the lower appellate court decision. It helped me enormously to see the issues, the passions raised, the concerns that needed to be addressed and resolved. It was far more useful, and insightful, than any mock oral argument could be, and provides yet another example of how the peer review and discussion in the blogosphere helps to focus and improve our understanding of legal issues.
This case provided a showcase for lawyer speech at its best and worst, and I would hope that we can learn from the strong feelings against lawyer marketing that we are not winning friends or respect by meeting the expectations of our strongest detractors. Lawyer have the right to freedom of speech, but it’s up to us to use it wisely and for a better purpose than just to sell ourselves.
For more information on the case, as well as commentary and a round-up of posts on the implications of the New York court’s ruling for blogging, see this Eric Turkewitz’s New York Personal Injury Attorney Blog post