04 March 2013

Blogging, The 1st Amendment, & the Bar

Well, the latest round of the epic battle between Horace Hunter and the Virginia State Bar has been completed.  It's a mixed decision. It's also a correct decision.

For those of you who haven't been following this, the Bar first went after Horace for not having a disclaimer on a blog he had as part of his office's website.  When Horace stood his ground, the Bar expanded its complaint against him to include the fact that he put publicly available facts about his clients and their cases on his blog. At this point, the Bar was clearly over the line and while its disclaimer complaint was upheld, a panel of judges struck down the constitutional infringement.  Of course, both sides appealed to the Virginia Supreme Court.

Last week, Justice Powell, who may well be becoming my favorite Justice between this and her Baker dissent, decided that the panel judges were generally correct, but wrong in some of its details concerning the disclaimer.

To begin with Justice Powell shoots down the idea that the the blog in question is political instead of commercial.
"Indeed, unlike situations and topics where the subject matter is inherently, inextricably intertwined, Hunter chose to comingle sporadic political statements within his self-promoting blog posts in an attempt to camouflage the true commercial nature of his blog. . . . When considered as a whole, the economically motivated blog overtly proposes a commercial transaction that is an advertisement of a specific product."
Then, she goes on to consider whether Horace's use of information in the public record was constitutionally protected.
"The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom."
Having determined that lawyers actually do have the same constitutional rights as everyone else, she turns to the disclaimer.  She agrees that a disclaimer must be placed on the blog, but then actually goes back and reads the rule and shoots down the disclaimer previously mandated by the panel of judges because it did not require the disclaimer to be "in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results."  She does not offer a valid disclaimer, instead remanding the case for further determination.

There is only one nit I think I can pick with this opinion.  The Bar initially required Horace to put the disclaimer on each and every post he put up that discussed his cases.  The panel of judges only required it to be placed on the site once (presumably the way everyone does, as a note on the blog's frame).  When you've got parties this locked in battle, that's the kind of thing which could end up with them right back in front of the Justice Powell and her colleagues.  Personally, I think the Bar is overstepping when it tries to require the disclaimer on each and every post mentioning a case as long as the disclaimer is somewhere on the same webpage and follows the rules.  We'll see if this point gets litigated.

All-in-all, it's a well written, well supported opinion. Well worth reading if your are a lawyer in Virginia (or anywhere else) with a blog.

Hunter v. VSB

No comments: