Tuesday, October 17, 2006

Is Blogging Advertising?

Leigh Jones at the New York Law Journal has a recent piece on blogging, this time from the perspective of law blogs and whether they constitute advertising.
Many states, such as New York, are in the process of revamping their attorney ethics rules, and part of that process involves the prickly issue of whether blogs should be regulated as advertising. On the one hand, states want to protect consumers from unscrupulous lawyer advertising presented under the guise of an online diary. On the other, they want to preserve the free flow of ideas -- and valuable legal information presented in a public forum -- that the new technology has fostered.

Fair enough.
New York is reviewing its lawyer advertising rules, and some of the proposed changes are making bloggers nervous. In trying to formulate rules to encompass everything from print ads to Internet pop-ups, the state's four presiding justices last spring broadened its rules on lawyer advertising. The state has delayed implementation of any changes until after a comment period, which was extended last month. The changes would pertain not only to New York firms, but, significantly, to out-of-state attorneys advertising in New York. Part of the concern is that the proposals pertain to "written advertisements and solicitations and computer-accessed communications." Such a definition, say some observers, could include blogs. If so, the rules, which propose, for example, a requirement that law firms file their advertisements with a disciplinary committee for public view and scrutiny, could stifle blog dialogue.
I wonder what public policy could be served by a filing requirement that requires someone to file something that is available publicly? A registration requirement might be more straightforward. The disciplinary committee could easily develop a software application to automatically scan the registered blogs periodically for words or certain combinations of words that could raise red flags. New York's ethical police like to pick on terms like "expert" or "specialist," and those could easily be flagged by a spider for follow up by a live person.
Wilson Sonsini Goodrich & Rosati partner Catherine Kirkman publishes the Silicon Valley Media Law blog, which is referenced in her biography on the firm's Web site. The blog covers recent decisions pertaining to media law and includes resources and observations about the practice area. Ms. Kirkman sees her blog as a means of publication rather than advertising. "I really haven't looked at it through that lens," she said. "It's a way to participate in the community and be a resource in terms of analyzing cases."
Sorry, I don't buy that for half a second. As a private sector practitioner for ten years, I can say without hesitation that for a lawyer in private practice, publication is advertising. You cannot pick up an advice piece about marketing without reading about what a benefit publication is.

Incidentally, prominently at the top of Kirkman's blog, right next to her picture, is a link to "About Cathy," where you can learn about her prior work experience and the fact, touted in bold, that Cathy has "extensive expertise in digital media, copyright and Internet law." Therewith follows extensive name dropping, including listing Google, Lucasfilm, Napster, InfoSpace (Moviso), Fox Family Music, FoxKids.com, and "Bad Boy Technologies (P Diddy)" as clients, and many, many more. Just under that is a link to "Legal Services" where visitors can read about the 33 different kinds of legal services Cathy can provide (not an exhaustive list), and just under that is a link to "Contact Cathy."

So, let's boil that all down: Who she is. What she does. How to reach her.

Hmm. Sure smells like advertising to me, all disclaimers to the contrary.

"We should market ourselves in a way that does not demean the profession,"
[said Ernest Svenson, a blogger better known as Ernie the Attorney.] "Most
bloggers are going in that direction."

Agreed. And Ms. Kirkman's blog is one good example. A quick review of the posts gives the impresssion that they refer to current, relevant, and important topics. I am not into media law, but if I were, I'd probably drop in from time to time. At the same time, you can't convince me it's not advertising.

Or, at the very least, you can't say that the blog as a whole isn't advertising. You might be able to cut a fine distinction between the biographical information and practice description, which are clearly advertising, and the blog entries themselves, which are less clear cut. Isolating any one post, you could look at it and say, "not advertising."

But how to distinguish between the two? Perhaps we can borrow from Supreme Court Justice Potter Stewart's famous standard for describing hardcore porn: (to paraphrase) I can't define it, but I know it when I see it.

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