September 26, 2002

Legislative Activity

September 26, 2002

Alex W. Jackson
Staff Attorney
Supreme Court of Alabama
300 Dexter Avenue
Montgomery, AL 36104-3741

Dear Mr. Jackson:

The American Advertising Federation (AAF) appreciates the opportunity to comment on advertising rules recently proposed by the Alabama Bar Association (ABA).

As the "Unifying Voice for Advertising," the AAF is the trade association that represents 50,000 professionals in the advertising industry. AAF's 130 corporate members are advertisers, agencies and media companies that comprise the nation's leading brands and corporations. AAF has a national network of 210 ad clubs, including seven in Alabama, and connects the industry with an academic base through its 210 college chapters.

As the Court reviews the proposed regulations, AAF would like to respectfully remind the justices that truthful advertising for attorneys, or any other legal product or service, is speech protected by the First Amendment to the U.S. Constitution. Deceptive or untrue commercial speech is not protected.

More than a quarter century ago, the United State Supreme Court held that the freedom of speech guaranteed by the First Amendment extends to commercial speech (Virginia State Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976)). The very next year the Court affirmed that the protections extend to attorney advertising (Bates v. State Bar of Arizona, 433 U.S. 350, 375 (1977)). More recent cases have acknowledged this protection as well (Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 105 (1990)).

In Central Hudson Gas & Electric Corp. v. Public Service Commission (447 U.S. 557, 556 (1980)) the U.S. Supreme Court articulated a stringent test the government must pass before regulating truthful commercial speech about legal products and services. The regulation must address a substantial governmental interest; the regulation must directly advance that interest; and the regulation must be narrowly tailored. The advertising regulations proposed by the Alabama Bar Association fail this test.

There is no disagreement between AAF and ABA about the legality of the legal services being offered. Likewise, we agree that false and misleading statements should be prohibited. In fact, AAF believes that any language so stating is unnecessary since state and federal laws already prohibit false and misleading commercial statements.

Unfortunately, the proposed ABA advertising rules go further by prohibiting practices that allegedly create "unjustified expectations" in consumers. For example, proposed rule 7.2, paragraph (o) states:

Appearance on Television or Radio. . . . The information shall be articulated by a single human voice, or on-screen text, with no background sound other than instrumental music. No person's voice or image, other than that of a lawyer who is a member of the firm whose services are advertised, may be used in a television or radio advertisement. Visual images appearing in a television advertisement shall be limited to the advertising lawyer in front of a background consisting of a single solid color, a set of law books in an unadorned bookcase, or the lawyer's own office, with no other office personnel shown.

No attempt is made to justify limiting advertising to the articulated audio and visual options. In fact, no attempt can be made because none of the prohibited practices are inherently false or misleading. For example, under the proposed rules an attorney would be prohibited from delivering his message while standing in a courtroom, or outside the courthouse, or anywhere other than the three options articulated in the rule. Taken further, the rule would define an advertising as misleading if the attorney was standing in front of an "adorned" bookcase, with a colleague or assistant, or if the colors of his or her office wall were two-toned, for example white with blue trim.

Under Central Hudson the proposed regulation must advance a substantial government interest. The closest the proposed rules come to articulating such an interest is in the comment section to rule 7.2:

Regardless of medium, a lawyer's advertisement should provide only useful factual information presented in a nonsensational manner. Advertisements utilizing slogans or jingles, oversized electrical and neon signs, or sound trucks fail to meet these standards and diminish public confidence in the legal system.

Even assuming, aguendo, that maintaining public confidence in the legal system is a substantial interest, the ABA has not attempted to make a case that public confidence in the legal system is diminished, or that advertising is a culprit. If indeed public confidence is down, we would suggest that the problems are not advertising and that limiting advertising would only serve to lessen public access to the law.

However, AAF's or the ABA's belief in the impact of advertising is irrelevant. Before resorting to the drastic step of assaulting the First Amendment by limiting speech, it is incumbent on the ABA to show evidence that advertising does diminish confidence in the legal system and that the proposed ABA restrictions would restore lost confidence.

Central Hudson also demands that any regulations restricting commercial speech be narrowly tailored. Such severe limitations on video and audio as quoted before in proposed rule 7.2, paragraph (o) simply cannot be described as narrowly tailored.

The proposed rules are rife with unsupported allegations regarding advertising. Perhaps the most egregious comes in the comment headed "Radio or Television" advertising:

. . . the unique character of electronic media, including the pervasiveness of television and radio, the ease with which these media are abused, and the passiveness of the viewer (or listener) make the electronic media especially subject to regulation in the public interest. Therefore, greater restrictions on the manner of television and radio advertising are justified than might be appropriate for advertisements in the other media.
This outrageous claim is offered without any supporting evidence. Indeed, there is no supporting evidence because the claims are quite simply false. Television and radio do not have an inherently greater power over consumers than do newspapers, magazines, billboards or any other advertising medium.

In short, the justifications for the proposed rules are fatally flawed, and bulk of the rule itself is unconstitutional. The AAF urges the Court to reject the Alabama Bar Association's proposed advertising rules.

Respectfully submitted,

Jeff Perlman
Executive Vice President AAF