Monday, November 13, 2006

Pre-Clearance of TV/Radio Ads and Other New Marketing Restrictions in Florida: Prior Restraint?

Posted by Alan Childress

David Hricik at LegalEthicsForum posted a link to the law.com story on the new Florida state bar requirement of 15-day pre-screening for radio and TV ads (previously simultaneous submission to the bar sufficed, as it still does for non-broadcast media).  And Brad Wendel wondered how this is not an unconstitutional prior restraint. 

There's more, though it does not answer Brad's question.  Here is a thorough Florida Bar News story on this and other changes to the attorney advertising rules in Florida--following from a Nov. 2 state Supreme Court ruling linked here on the subject, issued after nearly two years of bar study and proposals, and made effective January 1.  The issue of whether websites and online advertising fall under such regulation (somewhat related to the New York state blogs-as-advertising debate currently raging) was left for a later day and further study.

I'll offer one 'answer' to Brad's question, which is not meant to placate him or predict success within the courts in resisting constitutional challenges to the new rule. That is to note that commercial speech, particularly in the broadcast media, receives only the limited protection of 'intermediate scrutiny'--and some courts may find that pre-screening falls acceptably into that less-protected sphere in a way that would not be allowed for more protected speech like political ads.  (For example, such commercial speech already constitutionally may require disclaimers in ways we would never force a citizen to speak politically ('Live Free or Die')). That's the argument at least, and one I know Brad 'knows' as his question was rhetorical.  I don't buy it, as explained after the jump.

While the substantive protection of intermediate scrutiny varies by the commercial nature of the speech, I would hope that courts will ultimately rule that prior restraint of any kind can be justified, if at all, only with the highest scrutiny and state justification imaginable.  This should also be true as long as the subject matter falls into a protected category at all.  Commercial speech is still "protected."

One might easily further argue that ultimately unprotected speech at least deserves a prohibition against pre-censorship regardless of the liability rules that exist and are constitutional ex ante.  Would we accept a review board placed into crowded theatres to prevent in advance someone from shouting fire?  More realistically, would we approve a pre-screening review board to read newspapers to make sure they don't falsely libel anyone?  Would we allow prior restraint of films reviewed by community standards in advance and declared to be obscene?  Already the judicial and historical answer to the last two hypos has been given as No, even though the speech is not fully protected in the strict way that core First Amendment expression is.  Some say we might accept a pre-screening of science journals on nuclear how-to secrets, but I assume that we would hardly do so by merely asking the censor to justify it with tepid intermediate scrutiny arguments. 

Commercial speech may not be 'fully' protected, but neither are the dangers of improper lawyer speech so huge, immediate, and irremediable that prior restraint is warranted there, if it ever is.

UPDATE:  Here is the ABA Journal's on-line story Nov. 17, about the Florida rules and quotes about their restrictions on misleading illustrations.

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