Commercial Speech and Legal Blogs

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Commercial speech, like the rest of constitutional law, can be tricky. Unfortunately, this can affect your legal blog. Being labeled as commercial speech affords your firm’s blog fewer legal protections, making it more important to tread carefully and choose your words wisely.

Refresher: What Is Commercial Speech?

Old advertisementCommercial speech is a kind of expression made with an economic interest. Because it does not concern policy issues, it is protected by the First Amendment to a lesser extent than other types of speech.

As is par for the course in constitutional law, and the First Amendment in particular, there is no clear definition of what constitutes commercial speech. However, the Supreme Court has come close to making one: Commercial speech is an advertisement for a certain product that the speaker has an economic interest in. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67 (1983).

There are clear bookends on either side of the spectrum of commercial speech: Criticism of governmental response to a civil rights demonstration is not commercial speech, even when made in a circulating newspaper. New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 (1964). However, making a statement purely with the intent of advertising the price of a product being sold is commercial speech. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

The water between these promontories is, needless to say, murky.

Legal Blogs Are Typically Commercial Speech

Where your legal blog falls within those waters can be a difficult determination to make. There are numerous aspects to a legal blog that can push it to one side or the other. However, most legal blogs fall into the realm of commercial speech, especially if they’re hosted on your firm’s website. Mentioning recent client success stories or using search engine optimization (SEO) strategies push it even further towards commercial speech.

With a Commercial Speech Moniker Comes More Responsibility

Unlike other kinds of protected speech, commercial speech can be regulated by the state or the federal government. Dancing around false or deceptive advertising laws, including those promulgated in your ethical rules by your state’s bar association, can result in a misstep if you don’t know the beat. Such legal mistakes can be immensely costly to your firm.

Professional Legal Blog Writers: Myers Freelance

Contracting out your legal blog to the professionals can be the safest option. Myers Freelance is composed of professional writers with legal backgrounds who understand the implications of writing commercial speech. Contact us today to get a legal blog started for your firm’s website, or to take over a blog that has already begun.

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