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.
2. What kind of experience did you have with this specific issues or in appellate matters prior to taking the case?
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?
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?
5. What arguments did your opponents raise in their defense?
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?
7. Could you predict, based on the oral argument, how the court would decide?
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?
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?
10. The case was remanded – so what will happen next?