(L), 07-3900-cv (XAP) Alexander v. Cahill 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

07-3677-cv (L), 07-3900-cv (XAP)
Alexander v. Cahill
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2008
(Argued: January 22, 2009 Decided: March 12, 2010 )
Docket Nos. 07-3677-cv (L), 07-3900-cv (XAP)
JAMES L. ALEXANDER, ALEXANDER & CATALANO LLC, and PUBLIC CITIZEN, INC.,
Plaintiffs-Appellees-Cross-Appellants,
– v. –
THOMAS J. CAHILL, in his official capacity as Chief Counsel for the Departmental
Disciplinary Committee for the Appellate Division of the New York Court of Appeals, First
Department, DIANA MAXFIELD KEARSE, in her official capacity as Chief Counsel for the
Grievance Committee for the Second and Eleventh Judicial Districts, GARY L. CASELLA, in
his official capacity as Chief Counsel for the Grievance Committee for the Ninth Judicial
District, RITA E. ADLER, in her official capacity as Chief Counsel for the Grievance
Committee for the Tenth Judicial District, MARK S. OCHS, in his official capacity as Chief
Attorney for the Committee on Professional Standards for the Appellate Division of the New
York Court of Appeals, Third Department, ANTHONY J. GIGLIOTTI, in his official capacity as
acting Chief Counsel for the Grievance Committee for the Fifth Judicial District, DANIEL A.
DRAKE, in his official capacity as acting Chief Counsel for the Grievance Committee for the
Seventh Judicial District and VINCENT L. SCARSELLA, in his official capacity as acting Chief
Counsel for the Grievance Committee for the Eight Judicial District,
Defendants-Appellants-Cross-Appellees.
Before: WALKER and CALABRESI, Circuit Judges.1
1 The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August
8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28
U.S.C. 46(d); Local Rule 0.14(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

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Defendants below, representing New York’s Appellate Division, appeal from the
decision of the United States District Court for the Northern District of New York (Scullin, J.),
granting summary judgment to Plaintiffs and invalidating content-based restrictions on attorney
advertising in New York State. Plaintiffs below cross-appeal from so much of the District
Court’s opinion as granted summary judgment to Defendants, upholding a thirty-day moratorium
on targeted solicitation following a specific incident. The District Court’s opinion is
AFFIRMED in part and REVERSED in part.
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GREGORY A. BECK (Brian Wolfman, on the brief),
Public Citizen Litigation Group, Washington, D.C., for
Plaintiffs-Appellees-Cross-Appellants.
OWEN DEMUTH, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, Andrew D. Bing, Deputy
Solicitor General, and Peter H. Schiff, Senior Counsel, of
counsel), for Andrew M. Cuomo, Attorney General of the
State of New York, Albany, N.Y., for Defendants-
Appellants-Cross-Appellees.
David G. Keyko and Ryan G. Kriger, Pillsbury Winthrop
Shaw Pittman LLP, New York, N.Y., for amicus curiae
Bar of the City of New York in support of Plaintiffs-
Appellees-Cross-Appellants.
Kathryn Grant Madigan, New York State Bar Association,
Albany, N.Y., and Bernice K. Leber (Jennifer L. Bougher
and Ali M. Arain, on the brief), Arent Fox LLP, New York,
N.Y., for amicus curiae New York State Bar Association in
support of Defendants-Appellants-Cross-Appellees.
CALABRESI, Circuit Judge:
New York’s Appellate Division adopted new rules prohibiting certain types of attorney
advertising and solicitation, which were to take effect February 1, 2007. The new rules barred,
inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious
law firms, attention-getting techniques unrelated to attorney competence, and trade names or
nicknames that imply an ability to get results. The amendments also established a thirty-day
moratorium for targeted solicitation following a specific incident, including targeted ads on
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television or in other media. Plaintiffs, a New York attorney, along with his law firm and a not-
for-profit public interest organization, challenged these provisions as violating the First
Amendment. The District Court agreed in part—it declared most of the content-based rules
unconstitutional, while upholding the thirty-day moratorium. Both Plaintiffs and Defendants
timely appealed from portions of the District Court’s decision adverse to them. For the reasons
that follow, we conclude that the District Court properly granted summary judgment to Plaintiffs
with respect to the content-based advertising restrictions, with the exception of the prohibition on
portrayals of fictitious law firms. We likewise conclude that the District Court properly granted
summary judgment to Defendants with respect to the thirty-day moratorium. Accordingly, we
affirm the District Court’s opinion in large part, and reverse in part.
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BACKGROUND
A. The Parties
The Plaintiffs-Appellees-Cross-Appellants (“Plaintiffs”) are an individual (James
Alexander), a law firm (Alexander & Catalano), and a not-for-profit consumer rights
organization (Public Citizen). Alexander is the managing partner of Alexander & Catalano, a
personal injury law firm with offices in Syracuse and Rochester. Alexander & Catalano use
various broadcast and print media to advertise. Prior to the adoption of New York’s new
attorney advertising rules, the firm’s commercials often contained jingles and special effects,
including wisps of smoke and blue electrical currents surrounding the firm’s name. Firm
advertisements also featured dramatizations, comical scenes, and special effects—for instance,
depicting Alexander and his partner as giants towering above local buildings, running to a
client’s house so quickly they appear as blurs, and providing legal assistance to space aliens.
Another advertisement depicted a judge in the courtroom and stated that the judge is there “to
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make sure [the trial] is fair.” The firm’s ads also frequently included the firm’s slogan, “heavy
hitters,” and phrases like “think big” and “we’ll give you a big helping hand.” To date, no
disciplinary actions have been brought against the firm or its lawyers based on firm advertising.
The new rules, however, caused the firm to halt its advertisements for fear of such action.
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Plaintiff Public Citizen is a D.C. not-for-profit corporation, with approximately 100,000
members nationwide, including roughly 10,000 in New York. Public Citizen Litigation Group is
a division of Public Citizen that conducts, inter alia, pro bono constitutional litigation in state
and federal courts on behalf of its clients. These organizations maintain a website and various
blogs, and participate in distributing educational materials on various legal issues to the public.
Defendants-Appellants-Cross-Appellees (“Defendants”) are the chief counsels or acting
chief counsels of the disciplinary committees whose jurisdiction lies within each of the four
Judicial Departments of the New York Supreme Court, Appellate Division. The Appellate
Division is authorized to discipline attorneys for professional misconduct. See N.Y. Judiciary
Law § 90(2) (McKinney 2009). Pursuant to this authority, the four presiding justices of each of
New York’s four departments are responsible for adopting disciplinary rules, which set the
parameters for professional conduct and provide for the discipline of attorneys violating the
rules. The departments have, in turn, appointed the disciplinary committees of which Defendants
are a part. These committees undertake investigations into complaints of attorney misbehavior.
Following an investigation, Defendants are empowered to take a number of actions with respect
to a complaint, including issuing a letter of caution or recommending that formal disciplinary
proceedings be started. When formal disciplinary proceedings are deemed warranted,
Defendants begin such proceedings in the Appellate Division. Accordingly, Defendants are
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responsible for enforcing the New York Code of Professional Responsibility and the attorney
disciplinary rules promulgated thereunder.
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B. The Appellate Division’s Adoption of the New Rules
In June 2006, the presiding justices of the four departments of the Appellate Division
approved for comment draft amendments to the then-existing rules. A press release explained
that the new rules were designed to protect consumers “against inappropriate solicitations or
potentially misleading ads, as well as overly aggressive marketing,” and to “benefit the bar by
ensuring that the image of the legal profession is maintained at the highest possible level.”
Following a comment period, the presiding justices issued final rules. These rules were set to
take effect on February 1, 2007.
We consider below a subset of these final rules, which we subdivide into two categories.
The first group of amendments imposes a series of content-based restrictions:
N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c):
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm
from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm,
the use of a fictitious name to refer to lawyers not associated together in a
law firm, or otherwise imply that lawyers are associated in a law firm if
that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and
intentional lack of relevance to the selection of counsel, including the
portrayal of lawyers exhibiting characteristics clearly unrelated to legal
competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to
obtain results in a matter.2
2 At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, §
1200.6(c). They appear at their present location without change.
An attorney “advertisement” is defined by N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.0(a) as “any public or
private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the
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The second group of amendments imposes a thirty-day moratorium on certain
communications following a personal injury or wrongful death event:
N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52: Solicitation and
Recommendation of Professional Employment
(b) For purposes of this Rule, “solicitation” means any advertisement initiated
by or on behalf of a lawyer or law firm that is directed to, or targeted at, a
specific recipient or group of recipients, or their family members or legal
representatives, the primary purpose of which is the retention of the lawyer or
law firm, and a significant motive for which is pecuniary gain. It does not
include a proposal or other writing prepared and delivered in response to a
specific request of a prospective client.
(e) No solicitation relating to a specific incident involving potential claims for
personal injury or wrongful death shall be disseminated before the 30th day
after the date of the incident, unless a filing must be made within 30 days of
the incident as a legal prerequisite to the particular claim, in which case no
unsolicited communication shall be made before the 15th day after the date of
the incident.
N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.36: Communication after Incidents
Involving Personal Injury or Wrongful Death
(a) In the event of a specific incident involving potential claims for personal
injury or wrongful death, no unsolicited communication shall be made to an
individual injured in the incident or to a family member or legal
representative of such an individual, by a lawyer or law firm, or by any
associate, agent, employee or other representative of a lawyer or law firm
representing actual or potential defendants or entities that may defend and/or
indemnify said defendants, before the 30th day after the date of the incident,
unless a filing must be made within 30 days of the incident as a legal
prerequisite to the particular claim, in which case no unsolicited
communication shall be made before the 15th day after the date of the
incident.
(b) An unsolicited communication by a lawyer or law firm, seeking to
represent an injured individual or the legal representative thereof under the
circumstance described in paragraph (a) shall comply with [§ 1200.52(e)].3
primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to
existing clients or other lawyers.”
3 At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.8
and 1200.41, respectively. Former § 1200.8 appears unchanged at § 1200.52. Former § 1200.41, which now
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C. The Present Action and District Court Decision
Plaintiffs filed their complaint on February 1, 2007, the date on which the new rules were
to take effect. They sought declaratory and injunctive relief from several of the new rules,
including all those set forth above. Plaintiffs contended that these rules infringed their First
Amendment rights because the rules prohibited “truthful, non-misleading communications that
the state has no legitimate interest in regulating.” Plaintiffs moved for a preliminary injunction
against enforcement of the rules, and Defendants moved to dismiss the complaint for, inter alia,
lack of standing. The District Court (Scullin, J.) reserved decision on Plaintiffs’ motion and
denied Defendants’ cross-motion. Alexander v. Cahill, No. 5:07-cv-117, 2007 U.S. Dist. LEXIS
29823 (N.D.N.Y. Apr. 23, 2007). Thereafter, the parties stipulated to a set of facts and exhibits
that became the basis for competing motions for summary judgment.
On July 23, 2007, the District Court filed its Memorandum-Decision and Order granting
partial summary judgment to Plaintiffs and partial summary judgment to Defendants. Alexander
v. Cahill, 634 F.Supp.2d 239 (N.D.N.Y. 2007). Principally, the District Court found
unconstitutional the disputed provisions of § 1200.50(c) set forth above, while concluding that
the thirty-day moratorium provisions survived constitutional scrutiny.4
Throughout its opinion, the District Court applied the test for commercial speech set forth
in Central Hudson, which considers whether (1) the speech is protected by the First Amendment;
(2) there is a substantial state interest to be achieved by the restriction; (3) the restriction
materially advances the state interest; and (4) the restriction is narrowly drawn. See Central
appears at § 1200.36, has changed by shifting between subsections (a) and (b) the class of lawyers and law firms it
addresses. The parties have not briefed the relevance, if any, of this change. We accordingly read the change to be
immaterial to this appeal.
4 The District Court made several additional rulings that are not at issue in these appeals. Most importantly, the
District Court accepted a narrowing construction of the amendments as inapplicable to non-commercial attorney
communications. On this basis, the District Court granted Defendants’ summary judgment motion as to Plaintiffs’
claims regarding application of the rules to non-commercial speech. Alexander, 634 F.Supp.2d at 255-56.
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Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564-66 (1980). The
District Court rejected Defendants’ claim that “the State of New York could ban attorney
advertising that was ‘irrelevant, unverifiable, [and] non-informational’ without reference to the
Central Hudson test.” Alexander, 634 F.Supp.2d at 246 n.4. It concluded: “Defendants have
provided no legal support for this proposition, and the Court finds none. Although these
characteristics may be evidence that an advertisement is misleading, they do not by themselves
constitute a justification for banning commercial speech in the form of attorney advertising.” Id.
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Turning to the amendments that restricted potentially misleading advertisements,
including the disputed provisions of § 1200.50(c), the District Court found that Defendants’
stated interest in protecting consumers from misleading attorney advertisements was a
substantial one. Id. at 247-48. Under Central Hudson’s penultimate prong, which requires that
the regulation materially advance the state’s interest, however, the District Court concluded that
the record was “notably lacking.” Id. at 248. The District Court gave considerable weight to
Defendants’ reliance on the New York State Bar Association’s Task Force Report on Lawyer
Advertising, but concluded that the Report provided sufficient support only for two amendments:
the prohibition on the portrayal of judges in attorney advertisements, and the prohibition on the
use of trade names that imply an ability to get results. Id. at 248-49. As to the remaining
disputed portions of § 1200.50(c), the District Court emphasized that the Task Force Report had
recommended disclosure and invigorated enforcement of existing rules, rather than any new
content-based restrictions. Id. at 249. Finally, the District Court found that the two amendments
that materially advanced New York’s interest in preventing misleading advertising did not do so
in a sufficiently narrowly tailored fashion. The District Court criticized Defendants for failing
“to produce any evidence that measures short of categorical bans would not have sufficed to
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remedy the perceived risks of such advertising being misleading.” Id. at 250. The District Court
therefore concluded that all of the disputed portions of § 1200.50(c) failed the Central Hudson
test.
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With regard to the thirty-day moratorium on contacting victims, the District Court
reached the opposite conclusion. The District Court recognized that New York’s moratorium is
broader than the Florida moratorium sustained by the Supreme Court in Florida Bar v. Went For
It, Inc., 515 U.S. 618 (1995). Florida’s moratorium was limited to direct-mail solicitation, while
New York’s provisions “extend by their plain language to television, radio, newspaper, and
website solicitations that are directed to or targeted at a specific recipient or group of recipients.”
Alexander, 634 F.Supp.2d at 253. Nonetheless, the District Court concluded that New York’s
moratorium materially advanced state interests in protecting the privacy of citizens and guarding
against the indignity of being solicited for legal services immediately following a personal injury
or a wrongful death event, and did so in a reasonably proportionate manner. Id. at 253-55. The
District Court relied on “an emerging consensus among authorities, state and federal, regarding
the desirability of some form of moratorium,” citing the Task Force Report’s review of direct-
mail moratoria in Florida and eight other states, the federal airline disaster moratorium (which
prohibits not only direct-mail solicitation, but “unsolicited communications” generally for a
forty-five day period, 49 U.S.C. § 1136), and the Supreme Court’s opinion in Florida Bar.
Alexander, 634 F.Supp.2d at 254. The District Court also noted “the existence of ‘ample
alternative channels’ for the public to receive information concerning legal services during the
moratorium period—namely, general advertisements in any media, provided they do not
reference a specific tragedy.” Id. (quoting Florida Bar, 515 U.S. at 633-34).
DISCUSSION
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This case calls on us once again to assess the scope of First Amendment protection
accorded to commercial speech, and the measure of evidence a state must present in regulating
such speech. Because this action was resolved on summary judgment, we review the District
Court’s decision de novo, drawing all factual inferences in favor of the non-moving party. Miller
v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
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The Supreme Court has established a four-part inquiry for determining whether
regulations of commercial speech are consistent with the First Amendment:
[1] whether the expression is protected by the First Amendment. For commercial
speech to come within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask [2] whether the asserted governmental interest is
substantial. If both inquiries yield positive answers, we must determine [3]
whether the regulation directly advances the governmental interest asserted, and
[4] whether it is not more extensive than is necessary to serve that interest.
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).5
A. The Disputed Provisions Regulate Commercial Speech Protected by the First Amendment
Defendants’ appeal challenges the District Court’s threshold conclusion as to the first
prong of this inquiry—that the First Amendment protects advertising that is irrelevant,
unverifiable, and non-informational. Although they do not dispute that New York’s thirty-day
moratorium provisions regulate protected commercial speech, Defendants argue strenuously to
us that New York’s content-based restrictions regulate speech that is not entitled to First
Amendment protection at all.
5 The Supreme Court has variously described the Central Hudson test as having three or four prongs, depending on
whether the preliminary inquiry into whether the content to be regulated is protected is counted as a prong. Compare
44 Liquormart, Inc. v. Rhode Island., 517 U.S. 484, 500 n.9 (1996) (describing the test as having four prongs), with
Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (describing the test as having three prongs). Defendants’
appeal focuses, among other things, on whether certain commercial speech is entitled to First Amendment protection
at all. Because the three-part locution of the Central Hudson test assumes such an inquiry, we adopt the four-part
locution throughout.
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The Supreme Court first recognized attorney advertising as within the scope of protected
speech in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), in which the Court invalidated a
ban on price advertising for what the Court deemed “routine” legal services. In so doing, the
Court reserved the question of whether similar protection would extend to “advertising claims as
to the quality of services [that] are not susceptible of measurement or verification.” Id. at 383.
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In the years since Bates, the Supreme Court has offered differing, and not always fully
consistent, descriptions as to what constitutes protected commercial speech, particularly with
respect to attorney advertising. Speaking generally, the Supreme Court has said that states may
impose regulations to ensure that “the stream of commercial information flow[s] cleanly as well
as freely.” Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 (1976).
But this Court has nonetheless observed that there are “doctrinal uncertainties left in the wake of
Supreme Court decisions from which the modern commercial speech doctrine has evolved. In
particular, these decisions have created some uncertainty as to the degree of protection for
commercial advertising that lacks precise informational content.” Bad Frog Brewery, Inc. v.
N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998)
In the end, we agree with the District Court that, with one exception discussed below, the
content-based restrictions in the disputed provisions of § 1200.50(c) regulate commercial speech
protected by the First Amendment. In almost every instance, descriptions of the first prong of
the Central Hudson test are phrased in the negative, and the only categories that Central Hudson,
and its sequellae, clearly excludes from protection are speech that is false, deceptive, or
misleading, and speech that concerns unlawful activities. See, e.g., Florida Bar, 515 U.S. at 623-
24 (“[T]he government may freely regulate commercial speech that concerns unlawful activity or
is misleading. Commercial speech that falls into neither of those categories . . . may be regulated
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if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted));
Ibanez v. Fl. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 142 (1994)
(“[O]nly false, deceptive, or misleading commercial speech may be banned.”). The Supreme
Court has also emphasized that “States may not place an absolute prohibition on certain types of
potentially misleading information . . . if the information also may be presented in a way that is
not deceptive.” In re R.M.J., 455 U.S. 191, 203 (1982); see also, e.g., Peel v. Attorney
Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01 (1990); Shapero v. Ky. Bar
Ass’n, 486 U.S. 466, 479 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme
Court of Ohio, 471 U.S. 626, 644 (1985). We conclude from these precedents that the Central
Hudson analysis applies to regulations of commercial speech that is only potentially misleading.
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The speech that Defendants’ content-based restrictions seeks to regulate—that which is
irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading.
Defendants’ own press release described its proposed rules as protecting consumers against
“potentially misleading ads.” This is insufficient to place these restrictions beyond the scope of
First Amendment scrutiny.7
There is one exception to this conclusion. Subsection 1200.50(c)(3) prohibits “the
portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated
6 Moreover, in this Court’s lead opinion on the matter, we have stated generally, in the context of product
advertising, that “minimal information, conveyed in the context of a proposal of a commercial transaction, suffices
to invoke the protections for commercial speech, articulated in Central Hudson.” Bad Frog Brewery, 134 F.3d at
97.
7 Defendants contend that their relevance and verifiability requirements were, in fact, adopted by the Supreme Court
by way of summary dismissal. Comm. on Professional Ethics & Conduct of the Iowa State Bar Assoc. v. Humphrey,
355 N.W.2d 565 (Iowa 1984), vacated and remanded, 472 U.S. 1004 (1985), after remand, 377 N.W.2d 643 (Iowa
1985), appeal dismissed for want of a substantial federal question, 475 U.S. 1114 (1986). We do not find the Iowa
Supreme Court’s analysis in Humphrey persuasive. And we comment on Humphrey also to draw attention to the
well-established limits on the precedential value of summary dismissals of this kind. The Supreme Court has long
recognized that the precedential value of a summary dismissal is limited to “the precise issues presented and
necessarily decided by” the dismissal. Mandel v. Bradley, 432 U.S. 173, 176 (1977). Accordingly, we need not
conclude that New York’s content-restrictions are permissible simply because the Iowa Supreme Court upheld
Iowa’s regulations summarily following an earlier remand.
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together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not
the case.” N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3). The District Court
invalidated § 1200.50(c)(3) in its entirety. Alexander, 634 F.Supp.2d at 249. Plaintiffs
acknowledge, however, that they intended to challenge only the first clause of this subsection—
prohibiting portrayals of judges—and they do not oppose Defendants’ appeal seeking
reinstatement of the prohibition on fictitious firms.
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The provision prohibiting advertisements including fictitious firms is susceptible to more
than one interpretation. But we need not decide whether it would be constitutional to prohibit
dramatizations in which an advertising law firm portrays itself arguing against a fictitious
opposing counsel. At oral argument, the Attorney General, representing the Defendants,
suggested a narrower interpretation of this regulation. He asked that we construe this language
as applying only to situations in which lawyers from different firms give the misleading
impression that they are from the same firm (i.e., “The Dream Team”). (Oral Arg. ~12:38:25)
We accept this interpretation. So read, this portion of § 1200.50(c)(3) addresses only attorney
advertising techniques that are actually misleading (as to the existence or membership of a firm),
and such advertising is not entitled to First Amendment protection. See Florida Bar, 515 U.S. at
623-24. Accordingly, and subject to the above-mentioned construction, we reverse the District
Court’s invalidation of that portion of § 1200.50(c)(3) that prohibits advertisements that include
fictitious firms.
Having concluded that the remainder of the disputed regulations falls within the zone of
protected commercial speech, we turn to the rest of the Central Hudson test. The Supreme Court
has explained that “[c]ommercial speech that is not false or deceptive and does not concern
unlawful activities may be restricted only in the service of a substantial governmental interest,
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and only through means that directly advance that interest.” Shapero, 486 U.S. at 472 (quotation
marks and alteration omitted). “The party seeking to uphold a restriction on commercial speech
carries the burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quotation
marks and alteration omitted). We apply the three remaining prongs of Central Hudson, in turn,
to each of the two categories of regulations set forth above.
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7 B. Central Hudson and the Content-Based Regulations
1. Substantial Interest 8
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Under the second prong of Central Hudson, the State must identify “a substantial interest
in support of its regulation[s].” Florida Bar, 515 U.S. at 624. “[T]he Central Hudson standard
does not permit us to supplant the precise interests put forward by the State with other
suppositions.” Id. at 624 (quotation marks omitted). Before the District Court and again on
appeal, Defendants proffered a state interest in “prohibiting attorney advertisements from
containing deceptive or misleading content.” (Appellants’ Br. 32) The report by the New York
State Bar Association’s Task Force on Lawyer Advertising (hereinafter, the “Task Force Report”
or “Report”), which the State considered in formulating its new rules and which constitutes the
bulk of the record on appeal, indicates that this is a proper and genuinely asserted interest. The
Task Force Report identified protecting the public “by prohibiting advertising and solicitation
practices that disseminate false or misleading information” as one of its key concerns. (Task
Force Report 1-2) This state interest is substantial—indeed, states have a generally unfettered
right to prohibit inherently or actually misleading commercial speech. See, e.g., Edenfield, 507
U.S. at 769 (“[T]here is no question that [the State’s] interest in ensuring the accuracy of
commercial information in the marketplace is substantial.”); In re R.M.J., 455 U.S. at 207
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(“States retain the authority to regulate advertising that is inherently misleading or that has
proved to be misleading in practice.”). The disputed regulations codified at § 1200.50(c)
therefore survive the second prong of the Central Hudson analysis.
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8
Defendants also assert an interest in “protecting the legal profession’s image and
reputation.” (Appellants’ Reply 30) In Florida Bar, the Supreme Court recognized a substantial
interest “in preventing the erosion of confidence in the [legal] profession.” Florida Bar, 515
U.S. at 635. Defendants explain that their interest in preventing misleading attorney advertising
is “inextricably linked to its overarching interest” in maintaining attorney professionalism and
respect for the bar. (Appellants’ Reply 30) This interest also supports the disputed regulations.9
2. Materially Advanced 10
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“The penultimate prong of the Central Hudson test requires that a regulation impinging
upon commercial expression ‘directly advance the state interest involved; the regulation may not
be sustained if it provides only ineffective or remote support for the government’s purpose.’”
Edenfield, 507 U.S. at 770 (quoting Central Hudson, 447 U.S. at 564). The state’s burden with
respect to this prong “is not satisfied by mere speculation or conjecture; rather, a governmental
body seeking to sustain a restriction on commercial speech must demonstrate that the harms it
recites are real and that its restrictions will in fact alleviate them to a material degree.” Florida
8 Defendants at times assert an interest in “ending attorney advertising that is potentially deceptive or misleading.”
(Appellants’ Br. 36) It is not clear, however, that a state has a substantial interest in prohibiting potentially
misleading advertising, as opposed to inherently or actually misleading advertising. “If the protections afforded
commercial speech are to retain their force, we cannot allow rote invocation of the words ‘potentially misleading’ to
supplant” the State’s burden. Ibanez, 512 U.S. at 146 (internal quotation marks and citation omitted). Moreover, it
is unclear what harm potentially misleading advertising creates, and the state bears the burden of proving “that the
harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” Florida Bar, 515
U.S. at 626 (quotation marks omitted). We need not resolve this issue in order to decide this case, and so we leave it
for a future case.
9 In defending the restriction on testimonials by clients with pending matters, Defendants assert a state interest in
preserving the integrity of the attorney-client relationship. (Appellants’ Br. 39-40) Defendants did not assert this
interest before the District Court, however, and so we do not consider it on appeal. See Virgilio v. City of New York,
407 F.3d 105, 116 (2d Cir. 2005) (“In general we refrain from passing on issues not raised below.”) (quotation
marks omitted).
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Bar, 515 U.S. at 626 (quotation marks omitted). Moreover, “[i]f the protections afforded
commercial speech are to retain their force, we cannot allow rote invocation of the words
‘potentially misleading’ to supplant” this burden. Ibanez, 512 U.S. at 146 (internal quotation
marks and citation omitted).
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Invalidating a regulation of commercial speech for lack of sufficient evidence under this
prong of Central Hudson does not foreclose a similar regulation being enacted validly in the
future. Rather, such invalidation returns the matter to the applicable legislating body and “forces
[that body] to take a ‘second look’ with the eyes of the people on it.” Guido Calabresi,
Foreward: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan
Debate Ignores), 105 Harv. L. Rev. 80, 104 (1991); see also Benjamin v. Jacobson, 172 F.3d
144, 190 (2d Cir. 1999) (en banc) (Calabresi, J., concurring in the result).
In defending the disputed § 1200.50(c) provisions, Defendants rely on three sources of
evidence: (1) “history, consensus, and simple common sense,” Florida Bar, 515 U.S. at 628
(quotation marks omitted), including regulations of attorney advertising in other states; (2)
existing and unchallenged rules already in New York’s Code of Professional Responsibility
targeting advertising similar to that targeted by the new amendments; and (3) the New York
State Bar Association’s Task Force Report. Defendants have not submitted any statistical or
anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit.
Nor have they specifically identified any studies from other jurisdictions on which the state
relied in implementing the amendments. See Alexander, 634 F.Supp.2d at 248. Against this
background, we test each of the disputed § 1200.50(c) provisions.
a. Subsection 1200.50(c)(1): Client Testimonials
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This subsection prohibits advertisements that include “an endorsement of, or testimonial
about, a lawyer or law firm from a client with respect to a matter that is still pending.” N.Y.
Comp. Codes R. & Regs., tit. 22, §1200.50(c)(1). The Task Force Report observed that
testimonials can be misleading because they may suggest that past results indicate future
performance. (Task Force Report 26-27) The Task Force Report, however, did not recommend
outright prohibitions of all testimonials on this basis. Instead, as the District Court observed, the
Task Force Report “recommended a different approach.” Alexander, 634 F.Supp.2d at 249. The
Report suggested “strengthening the rules governing testimonials to prohibit the use of an actor
or spokesperson who is not a member or employee of the advertising lawyer or law firm absent
disclosure thereof.” (Task Force Report 27) (emphasis added). The Task Force noted,
moreover, that “it would be an improper restriction on a client’s free speech rights to prohibit
client testimonials outright.” (Id.) The Task Force Report therefore does not support
Defendants’ assertion that prohibiting testimonials from current clients will materially advance
an interest in preventing misleading advertising. Indeed, the Report “contradicts, rather than
strengthens, the Board’s submissions.” Edenfield, 507 U.S. at 772.
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Nor does consensus or common sense support the conclusion that client testimonials are
inherently misleading. Testimonials may, for example, mislead if they suggest that past results
indicate future performance—but not all testimonials will do so, especially if they include a
disclaimer. The District Court properly concluded that Defendants failed to satisfy this prong of
Central Hudson with respect to client testimonials.
b. Subsection 1200.50(c)(3): Portrayal of a Judge
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This subsection prohibits “the portrayal of a judge.” N.Y. Comp. Codes R. & Regs., tit.
22, § 1200.50(c)(3).
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10 The Task Force Report observes that “a communication that states or
implies that the lawyer has the ability to influence improperly a court” is “likely to be false,
deceptive, or misleading.” (Task Force Report, App. I, 11) The District Court found this
comment to be persuasive evidence that a ban on portrayals of judges would materially advance
the State’s interest in preventing misleading advertising. We disagree. Although it seems
plainly true that implying an ability to influence a court is likely to be misleading, Defendants
have failed to draw the requisite connection between that common sense observation and
portrayals of judges in advertisements generally. The advertisement in which Alexander &
Catalano use the portrayal of a judge, for instance, depicts a judge in the courtroom and states
that the judge is there “to make sure [the trial] is fair.” This sort of advertisement does not imply
an ability to influence a court improperly. It is not misleading; an advertisement of this sort may,
instead, be informative. We believe the Task Force Report fails to support Defendants’
prohibition on portrayals of judges11 and conclude that Defendants have not met their burden
with respect to the wholesale prohibition of portrayals of judges. This prohibition consequently
must fall.
c. Subsection 1200.50(c)(5): Irrelevant Techniques
This subsection prohibits advertisements that “rely on techniques to obtain attention that
demonstrate a clear and intentional lack of relevance to the selection of counsel, including the
portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.” N.Y.
Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(5). Defendants note that the New York Code of
10 Subsection 1200.50(c)(3) also includes the prohibition on fictitious law firms discussed in section A above.
11 New York’s existing rule prohibiting attorneys from stating or implying that they are able “to influence
improperly or upon irrelevant grounds any tribunal, legislative body, or public official,” N.Y. Comp. Codes R. &
Regs., tit. 22, § 1200.58(e)(1), does not support the new rule. On the contrary, this rule mirrors the Task Force
Report’s remarks, and does not suggest that any and all portrayals of judges imply the capacity to exercise improper
influence over a court or other government body.
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Professional Responsibility has long declared that the purpose of attorney advertising is to
“educate the public to an awareness of legal needs and to provide information relevant to the
selection of the most appropriate counsel.” (Appellants’ Br. 33-34) (quotation marks omitted)
Defendants contend that their rule excluding attention-getting techniques unrelated to attorney
competence reflects this principle and so materially advances “New York’s interest in factual,
relevant attorney advertisements.” (Appellants’ Br. 35)
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A rule barring irrelevant advertising components certainly advances an interest in
keeping attorney advertising factual and relevant. But this interest is quite different from an
interest in preventing misleading advertising. Like Defendants’ claim that the First Amendment
does not protect irrelevant and unverifiable components in advertising, Defendants here appear
to conflate irrelevant components of advertising with misleading advertising. These are not one
and the same. Questions of taste or effectiveness in advertising are generally matters of
subjective judgment. Moreover, as the Task Force Report acknowledged, “Limiting the
information that may be advertised . . . assumes that the bar can accurately forecast the kind of
information that the public would regard as relevant.” (Task Force Report, App. I, 8)
Defendants have introduced no evidence that the sorts of irrelevant advertising
components proscribed by subsection 1200.50(c)(5) are, in fact, misleading and so subject to
proscription. Significantly, the Task Force Report expressly recognized that “communications
involving puffery and claims that cannot be measured or verified” were not specifically
addressed in its proposed rules, although such communications would already be prohibited “to
the extent that they are false, deceptive or misleading.” (Task Force Report, App. I, 9) Insofar
as the Task Force Report touched on style and advertising gimmicks designed to draw attention,
its recommendations were hortatory only. (See Task Force Report 70) (quoting the Monroe
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County Bar Association Project exhorting—but not requiring—lawyers and firms to include only
“factually accurate and objectively verifiable” information in their advertisements, and to
minimize devices such as puffery in favor of information “relevant to the thoughtful selection of
counsel”).
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Moreover, the sorts of gimmicks that this rule appears designed to reach—such as
Alexander & Catalano’s wisps of smoke, blue electrical currents, and special effects—do not
actually seem likely to mislead. It is true that Alexander and his partner are not giants towering
above local buildings; they cannot run to a client’s house so quickly that they appear as blurs;
and they do not actually provide legal assistance to space aliens. But given the prevalence of
these and other kinds of special effects in advertising and entertainment, we cannot seriously
believe—purely as a matter of “common sense”—that ordinary individuals are likely to be
misled into thinking that these advertisements depict true characteristics. Indeed, some of these
gimmicks, while seemingly irrelevant, may actually serve “important communicative functions:
[they] attract[] the attention of the audience to the advertiser’s message, and [they] may also
serve to impart information directly.” Zauderer, 471 U.S. at 647. Plaintiffs assert that they use
attention-getting techniques to “communicate ideas in an easy-to-understand form, to attract
viewer interest, to give emphasis, and to make information more memorable.” (Appellees’ Br.
36) Defendants provide no evidence to the contrary; nor do they provide evidence that
consumers have, in fact, been misled by these or similar advertisements. Absent such, or similar,
evidence, Defendants cannot meet their burden for sustaining subsection 1200.50(c)(5)’s
prohibition under Central Hudson.
d. Section 1200.50(c)(7): Nicknames, Mottos, and Trade Names
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This subsection bars advertisements “utiliz[ing] a nickname, moniker, motto or trade
name that implies an ability to obtain results in a matter.” N.Y. Comp. Codes R. & Regs., tit. 22,
§ 1200.50(c)(7). We conclude, once again, that the evidence on which Defendants rely fails to
support this regulation.
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There is a compelling, commonsense argument that, given the uncertainties of litigation,
names that imply an ability to obtain results are usually misleading. The Task Force Report
made precisely this observation, stating in its recommendations that “the use of dollar signs, the
terms ‘most cash’ or ‘maximum dollars,’ or like terms that suggest the outcome of the legal
matter” is “likely to be false, deceptive or misleading.” (Task Force Report, App. I, 11-12) Like
its recommendations on irrelevant advertising techniques, however, the Task Force Report did
not recommend outright prohibition of all such trade names or mottos—it simply acknowledged
that such names are often misleading. Defendants’ rule, by contrast, goes further and prohibits
such descriptors—including, according to the Attorney General, Alexander & Catalano’s own
“Heavy Hitters” motto—even when they are not actually misleading. The Task Force Report
therefore fails to support Defendants’ considerably broader rule.
Nor are we persuaded as to this rule’s constitutionality by reference to Friedman v.
Rogers, 440 U.S. 1 (1979), in which the Supreme Court upheld a prohibition on optometrist trade
names. There is doubt as to Friedman’s continued vitality. Friedman preceded Central Hudson
by nine years and did not employ Central Hudson’s multi-factor First Amendment analysis. As
this Court previously observed in Bad Frog Brewery, subsequent Supreme Court precedent has
undermined Friedman and moved in the direction of greater First Amendment protection for “a
logo or a slogan that conveys no information, other than identifying the source of the product,
but that serves, to some degree, to ‘propose a commercial transaction.’” 134 F.3d at 96 (quoting
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Posadas de Puerto Rico Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 340 (1986)).
Accordingly, we decline to rely solely on Friedman to uphold § 1200.50(c)(7) given the
subsequent precedential developments establishing more specific and demanding burdens of
evidence on the state.
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Moreover, in Friedman itself, the state marshaled substantially stronger and more
specific evidence supporting its prohibition on trade names than was done in this case. See, e.g.,
Friedman, 440 U.S. at 13-15. There is a dearth of evidence in the present record supporting the
need for § 1200.50(c)(7)’s prohibition on names that imply an ability to get results when the
names are akin to, and no more than, the kind of puffery that is commonly seen, and indeed
expected, in commercial advertisements generally. Defendants have once again failed to provide
evidence that consumers have, in fact, been misled by the sorts of names and promotional
devices targeted by § 1200.50(c)(7), and so have failed to meet their burden for sustaining this
prohibition under Central Hudson.
3. Narrowly Tailored 14
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The final prong of Central Hudson asks whether the “fit” between the goals identified
(the state’s interests) and the means chosen to advance these goals is reasonable; the fit need not
be perfect. Florida Bar, 515 U.S. at 632. As this Court has explained, “‘laws restricting
commercial speech . . . need only be tailored in a reasonable manner to serve a substantial state
interest in order to survive First Amendment scrutiny.’” N.Y. State Ass’n of Realtors v. Shaffer,
27 F.3d 834, 842 (2d Cir. 1994) (quoting Edenfield, 507 U.S. at 767). Nonetheless, “restrictions
upon [potentially deceptive speech] may be no broader than reasonably necessary to prevent the
deception.” In re R.M.J., 455 U.S. at 203. “[T]he existence of numerous and obvious less-
burdensome alternatives to the restriction on commercial speech is certainly a relevant
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consideration in determining whether the ‘fit’ between ends and means is reasonable.” Florida
Bar, 515 U.S. at 632 (quotation marks and alteration omitted). More precisely, the Supreme
Court has emphasized that “States may not place an absolute prohibition on certain types of
potentially misleading information . . . if the information also may be presented in a way that is
not deceptive.” In re R.M.J., 455 U.S. at 203. And the Supreme Court has also affirmed that a
state may not impose a prophylactic ban on potentially misleading speech merely to spare itself
the trouble of “distinguishing the truthful from the false, the helpful from the misleading, and the
harmless from the harmful.” Zauderer, 471 U.S. at 646.
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On this basis, even if we were to find that all of the disputed Section 1200.50(c)
restrictions12 survived scrutiny under Central Hudson’s third prong, each would fail the final
inquiry because each wholly prohibits a category of advertising speech that is potentially
misleading, but is not inherently or actually misleading in all cases. Contrary to Defendants’
assertions, the fact that New York’s rules do also permit substantial information in attorney
advertising does not render the disputed provisions any less categorical. Significantly, Zauderer
deemed a rule barring illustrations a “blanket ban.” Zauderer, 471 U.S. at 648. And New
York’s rules prohibiting, inter alia, all testimonials by current clients, all portrayals of judges,
and all depictions of lawyers exhibiting characteristics unrelated to legal competence are
similarly categorical. Because these advertising techniques are no more than potentially
misleading, the categorical nature of New York’s prohibitions would alone be enough to render
the prohibitions invalid.
Moreover, “nowhere does the State cite any evidence or authority of any kind for its
contention that the potential abuses associated with the [disputed provisions] cannot be combated
12 Excepting, of course, the prohibition on fictitious firms, which, as explained in section A above, addresses
inherently misleading advertising that need not be scrutinized under the remaining Central Hudson prongs.
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by any means short of a blanket ban.” Zauderer, 471 U.S. at 648; see also Peel, 496 U.S. at 109
(noting that the mere potential for misleading “does not satisfy the State’s heavy burden of
justifying a categorical prohibition”). As the District Court observed, the State could have, for
example, required disclaimers similar to the one already required for fictional scenes. Alexander,
634 F.Supp.2d at 250; see N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(4) (fictional
scenes). Nothing in the record suggests that such disclaimers would have been ineffective.
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The materials in the record show, instead, that disclaimers and other regulations short of
content-based bans were in fact suggested. The Task Force “agreed at the outset to deal in
practical solutions (i.e., generally strengthening existing disclaimers and requiring further
disclosures) without adding content-based restrictions.” (Task Force Report 2) Nearly all of the
Report’s recommendations followed this general rule. And in comments responding to New
York’s draft rules, the Federal Trade Commission, “which has a long history of reviewing claims
of deceptive advertising,” Peel, 496 U.S. at 105, similarly stated its belief that New York could
adequately protect consumers “using less restrictive means such as requiring clear and prominent
disclosure of certain information.” (Letter from the FTC’s Office of Policy Planning, Bureau of
Consumer Protection, and Bureau of Economics to Michael Colodner, Office of Court
Administration (Sept. 14, 2006))
Defendants have failed to carry their burden with respect to Central Hudson’s final
prong. We therefore conclude, like the District Court, that the disputed portions of subsections
1200.50(c)(1), (3), (5), and (7) are unconstitutional. In so doing, we return this matter to the
Appellate Division, where that body may “take a ‘second look’ with the eyes of the people on it.
Calabresi, Foreward, supra, at 104.
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C. Central Hudson and the Moratorium Provisions 1
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Plaintiffs’ cross-appeal challenges the District Court’s decision upholding New York’s
time-limited moratorium on solicitation of accident victims or their families. “In cases where a
legal filing is required within thirty days, the moratorium is limited to a fifteen-day cooling off
period.” Alexander, 634 F.Supp.2d at 253. New York’s moratorium provisions apply to all
media through which an attorney might initiate communication “directed to, or targeted at, a
specific recipient or group of recipients.” N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52(b).
Consistent with the regulations as written and with counsel’s concessions at oral
argument, we construe the moratorium provision as inapplicable to (a) broad, generalized
mailings (Oral Arg. ~12:06:18); (b) general advertisements conveying an attorney’s experience
in handling personal-injury suits, even when these advertisements appear near news stories in a
newspaper that the attorney knows will be filled with coverage of a particular accident (Oral Arg.
~12:02:38-12:03:00)13; or (c) advertisements informing readers of an attorney’s past experience
with a particular product where that product has caused repeated personal-injury problems (as
with the Dalkon Shield advertisement at issue in Zauderer). (Oral Arg. ~12:04:11)
We turn now to the remaining Central Hudson inquiries relevant to the moratorium
provision.
1. State Interest 18
19
20
21
In Florida Bar, the Supreme Court recognized as a substantial state interest “protecting
the privacy and tranquility of personal injury victims and their loved ones against intrusive,
unsolicited contact by lawyers.” Florida Bar, 515 U.S. at 624. That case considered a thirty-day
13 It is unclear whether the moratorium provisions apply to “meta tagging,” a process by which one can insert non-
visible HTML code into a website or web advertisement. By use of a meta tag, for example, a lawyer can design a
general advertisement that appears when one searches for information regarding a specific incident. The parties
have not briefed whether the moratorium provisions prohibit meta tagging, or if they do prohibit meta tagging,
whether the prohibition is constitutional. Accordingly, we express no opinion on either question.
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moratorium on direct-mail solicitation of accident victims (or their families). This case similarly
involves a moratorium on contacting accident victims (and their families). The Task Force
Report, which Defendants considered, recommended a limited moratorium because “the cooling
off requirement would be beneficial in removing a source of annoyance and offense to those
already troubled by an accident or similar occurrence.” (Task Force Report 62-63) Florida Bar
makes clear that Defendants’ stated interest is substantial, and the Task Force Report indicates
that that interest is genuinely asserted. The moratorium provisions thus meet the requirements of
Central Hudson’s substantial interest prong.
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2. Materially Advanced 9
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Florida Bar upheld Florida’s moratorium rule, which is similar to the New York
provisions before us. Several other states have since adopted analogous regulations prohibiting
targeted solicitation of accident victims for specific periods of time.14 The Task Force Report,
based in part on the practices of these states, recommended a fifteen-day “cooling-off period”
during which direct-mail solicitation of accident victims would be prohibited. (Task Force
Report, App. I, 4) New York’s moratorium provisions seek to address the same harms that the
Florida Bar Court recognized in upholding a thirty-day ban on direct-mail solicitations. And the
New York provisions seek to address those harms through similar means—a time-limited
14 See, e.g., Ariz. Rules of Prof’l Conduct R. 7.3(b)(3) (prohibiting “written, recorded or electronic communication
or by in-person, telephone or real-time electronic” solicitation where “the solicitation relates to a personal injury or
wrongful death and is made within thirty (30) days of such occurrence”); Conn. Rules of Prof’l Conduct R. 7.3(b)(5)
(imposing a forty-day moratorium on “written or electronic communication concern[ing] an action for personal
injury or wrongful death”); Ga. Rules of Prof’l Conduct R. 7.3(a)(3) (imposing a thirty-day moratorium on “written
communication concern[ing] an action for personal injury or wrongful death”); La. Rules of Prof’l Conduct R.
7.3(b)(iii)(C) (imposing a thirty-day moratorium on communication “concern[ing] an action for personal injury or
wrongful death”); Mo. Rules of Prof’l Conduct 7.3(c)(4) (prohibiting written solicitation, including by e-mail,
“concern[ing] an action for personal injury or wrongful death . . . if the accident or disaster occurred less than 30
days prior to the solicitation”); Tenn. Rules of Prof’l Conduct R. 7.3(b)(3) (prohibiting solicitation of “professional
employment from a potential client by written, recorded, or electronic communication or by in-person, telephone, or
real-time electronic contact” if “the communication concerns an action for personal injury, worker’s compensation,
wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is
addressed . . . unless the accident or disaster occurred more than thirty (30) days prior to the mailing or transmission
of the communication”).
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moratorium on targeted solicitation of potential clients. Florida Bar makes clear that such
means materially advance the state’s interest. We conclude, therefore, that Defendants have met
their burden under this prong of Central Hudson. See Moore v. Morales, 63 F.3d 358, 361-62
(5th Cir. 1995) (relying largely on Florida Bar in upholding a rule prohibiting attorneys,
physicians, and other professionals from soliciting accident victims within thirty days following
the accident).
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3. Narrowly Tailored 7
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Were New York’s moratorium provisions limited to direct-mail solicitation, there would
be little question as to their constitutionality. See Falanga v. State Bar of Georgia, 150 F.3d
1333, 1340-41 (11th Cir. 1998). But New York’s moratorium is not so limited. As the District
Court recognized, “The moratorium provisions in this case extend by their plain language to
television, radio, newspaper, and website solicitations that are directed to or targeted at a specific
recipient or group of recipients.” Alexander, 634 F.Supp.2d at 253.
The Supreme Court has in some circumstances favored a technology-specific approach to
the First Amendment. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813
(2000) (“Cable television, like broadcast media, presents unique problems, which inform our
assessment of the interests at stake, and which may justify restrictions that would be
unacceptable in other contexts.”); Reno v. ACLU, 521 U.S. 844, 868 (1997) (“[E]ach medium of
expression may present its own problems.” (quotation marks and alteration omitted)); FCC v.
League of Women Voters of Ca., 468 U.S. 367, 377 (1984) (“[W]e have recognized that
‘differences in the characteristics of new media justify differences in the First Amendment
standards applied to them.’” (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969))).15
15 See also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (“[T]he special interest of the federal
government in regulation of the broadcast media does not readily translate into a justification for regulation of other
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Different media may present unique attributes that merit a tailored First Amendment analysis.
But see Jim Chen, Conduit-Based Regulation of Speech, 54 Duke L.J. 1359, 1360 (2005) (“[A]
constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects
free speech.”).
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But the differences among media may or may not be relevant to the First Amendment
analysis depending on the challenged restrictions. Compare Sable Commc’ns of Ca., Inc. v.
FCC, 492 U.S. 115, 128 (1989) (“Unlike an unexpected outburst on a radio broadcast, the
message received by one who places a call to a dial-a-porn service is not so invasive or
surprising that it prevents an unwilling listener from avoiding exposure to it.”), with Reno, 521
U.S. at 875–76 (likening regulations seeking to protect minors from harmful material on the
Internet to regulations on obscene commercial telephone recordings), and Sable Commc’ns, 492
U.S. at 125 (likening obscene commercial telephone recordings to obscene commercial
mailings); cf. Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 473 (1988) (“Our lawyer advertising cases
have never distinguished among various modes of written advertising to the general public.”).
In the context before us, we eschew a technology-specific approach to the First
Amendment and conclude that New York’s moratorium provisions—as we construe them—
survive constitutional scrutiny notwithstanding their applicability across the technological
spectrum. We focus first on the potential differences among media as to the degree of
affirmative action needed to be taken by the targeted recipient to receive the material Plaintiffs
seek to send. For many media forms, it is about the same. Thus, to us, the affirmative act of
means of communication.”); FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (“We have long recognized that
each medium of expression presents special First Amendment problems.”); S.E. Promotions, Ltd. v. Conrad, 420
U.S. 546, 557 (1975) (“Each medium of expression . . . must be assessed for First Amendment purposes by
standards suited to it . . . .”).
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walking to one’s mailbox and tearing open a letter seems no greater than walking to one’s front
step and picking up the paper or turning on a knob on a television or radio.
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It is true that the Internet may appear to require more affirmative acts on the part of the
user in order to recover content (and is therefore perhaps entitled to greater First Amendment
protection insofar as users are soliciting information, rather than being solicited). But regardless
of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters;
newspapers are often read online; radio streams online; television programming is broadcast on
the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and
Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248
(2003) (“[T]he impending shift of all networks to packet switched technologies promises to
cause all of the distinctions based on the means of conveyance and the type of speech conveyed
to collapse entirely.”). Furthermore, Internet searches do not bring a user immediately to the
desired result without distractions. Advertisements may appear with the user’s search results;
pop-up ads appear on web pages; and Gmail (Google’s e-mail service) creates targeted
advertising based on the keywords used in one’s e-mail. In such a context, an accident victim
who describes her experience in an e-mail might very well find an attorney advertisement
targeting victims of the specific accident on her computer screen.16
States are increasingly responding to these expanded and expanding roles of the Internet.
Several already apply existing attorney professional responsibility rules to electronic and Internet
advertisements and solicitations. See Amy Haywood & Melissa Jones, Navigating a Sea of
Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over
16 At present, Gmail’s algorithm for placing targeted advertisements next to e-mail messages omits such ads where
an e-mail message mentions a catastrophic event or tragedy. See More on Gmail and Privacy, Jan. 2007,
http://mail.google.com/mail/help/about_privacy.html. It is by no means certain, however, (a) that Google will
continue such a policy, (b) that the algorithm runs without flaws, or (c) that other e-mail providers will exercise
similar good taste.
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the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001) (“[I]t can be assumed that Internet use in
the context of legal marketing will generally invoke all ethics rules relating to advertising and
solicitation.”).
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17 Texas and Florida have also added language to their disciplinary rules
specifically to address attorney solicitation via the Internet.18 The New York Task Force Report
reached the same conclusion. The Report repeatedly stated that “on-line advertisements and
websites are not materially different than typical” printed advertisements, and that the rules
should be enforced equally across media. (Task Force Report 54-55) In so doing, the Report
“demonstrate[d] that the harms it recites are real and its restriction will in fact alleviate them to a
degree.” Florida Bar, 515 U.S. at 626 (quotation marks omitted).
Accordingly, we conclude that even acknowledging that differences among media may
be significant in some First Amendment analyses, they are not so in this case. Three aspects of
the Supreme Court’s analysis in Florida Bar are of particular relevance to our determination that
the harms identified in that case, and put forth by Defendants in this case, are just as compelling
with respect to targeted attorney advertisements on television, radio, newspapers, and the
Internet as they are in justifying a ban on targeted mailings of attorney advertisements.
a. Porcelain Hearts
The Supreme Court has recognized the particular sensitivity of people to targeted
(plaintiff’s) attorney advertisements during periods of trauma. To the extent that the attorney
advertisements, regardless of the media through which they are communicated, are directed
toward the same sensitive people, there is no reason to distinguish among the mode of
17 See, e.g., S.C. Ethics Op. 99-04 (1999) (advertising); Mass. Ethics Op. 98-2 (1998) (advertising and solicitation);
Iowa Ethics Op. 96-1 (1996) (advertising); Pa. Ethics Op. 96-17 (1996) (advertising).
18 See Amendments to Rules Regulating the Florida Bar—Advertising Rules, 762 So.2d 392 (Fla. 1999); Tex.
Disciplinary Rules of Prof’l Conduct, Interpretive Cmt. 17 (1996, rev. May 2003).
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communication. Depending on the individual recipient, the printed word may be a likely to
offend as images on a screen or in newspapers.
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In Florida Bar, the Court recognized the state’s “substantial interest . . . in protecting
injured Floridians from invasive conduct by lawyers.” 515 U.S. at 635. As the dissent in
Florida Bar pointed out, the primary distinction between the targeted letters at issue in Florida
Bar and the untargeted letters at issue in Shapero v. Kentucky Bar Association, 486 U.S. 466
(1988), was that “victims or their families will be offended by receiving a [targeted] solicitation
during their grief and trauma.” Florida Bar, 515 U.S. at 638. The dissent argued that the
majority should not “allow restrictions on speech to be justified on the ground that the expression
might offend the listener.” Id.
But the majority of the Supreme Court in Florida Bar held otherwise. It focused on a
subset of the public in analyzing the First Amendment: essentially, a First Amendment analogue
to tort law’s thin-skull plaintiffs, those who have a “porcelain heart.” Some accident victims and
their families might welcome targeted solicitations that inform them of their legal rights
immediately after the accident (particularly when insurance companies may already be knocking
on their doors). Other accident victims and their families might be perturbed—but not
outraged—by the targeted solicitations. The Supreme Court, however, tailored First Amendment
law, in the context of attorney solicitations, to the most sensitive members of the public. It is
with these porcelain hearts in mind that we must evaluate New York’s moratorium.
b. Wemmick’s Castle19
In addition to a heightened concern for public sensitivity to potentially offensive attorney
communications, the Court in Florida Bar upheld the moratorium in part because of its belief
19 In Charles Dickens’ “Great Expectations,” the character of Mr. Wemmick has a home that is literally his castle,
complete with a drawbridge and moat that are used to separate his lives inside and outside the home.
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that people should be given more of an option to avoid offensive speech in the privacy of their
homes. See Florida Bar, 515 U.S. at 625 (“[W]e have consistently recognized that the State’s
interest in protecting the well-being, tranquility, and privacy of the home is certainly of the
highest order in a free and civilized society.” (quotation marks and alterations omitted)).
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In this respect, the Court was adhering to a long-held position:
One important aspect of residential privacy is protection of the unwilling listener.
Although in many locations, we expect individuals simply to avoid speech they
do not want to hear, the home is different. “That we are often ‘captives’ outside
the sanctuary of the home and subject to objectionable speech . . . does not mean
we must be captives everywhere.” Rowan v. U.S. Post Office Dep’t, 397 U.S.
728, 738, 90 S. Ct. 1484, 1491, 25 L.Ed.2d 736 (1970). Instead, a special benefit
of the privacy all citizens enjoy within their own walls, which the State may
legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held
that individuals are not required to welcome unwanted speech into their own
homes and that the government may protect this freedom.
Frisby v. Schultz, 487 U.S. 474, 484–85 (1988) (some internal citations omitted); Rowan v. U.S.
Post Office Dep’t, 397 U.S. 728, 737 (“The ancient concept that ‘a man’s home is his castle’ into
which ‘not even the king may enter’ has lost none of its vitality, and none of the recognized
exceptions includes any right to communicate offensively with another.”). In Rowan, the
Supreme Court “categorically reject[ed] the argument that a vendor has a right under the
Constitution or otherwise to send unwanted material into the home of another,” and held that
“[t]he asserted right of a mailer . . . stops at the outer boundary of every person’s domain.” Id. at
738.
Yet, a letter in a mailbox is no more intrusive than the newspaper in the mailbox, the e-
mail in one’s inbox, the television in the living room, the radio in the kitchen, or the Internet in
the study. Arguably, mail is directly targeted at a residence, whereas television, radio, and the
Internet may be viewed outside the home. But the Court has seemingly not focused on this
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distinction, and, instead, has held that the home should be protected from offensive language that
disturbs domestic tranquility through the airwaves:
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Patently offensive, indecent material presented over the airwaves confronts the
citizen, not only in public, but also in the privacy of the home, where the
individual’s right to be left alone plainly outweighs the First Amendment rights of
an intruder. Because the broadcast audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or viewer from unexpected
program content. To say that one may avoid further offense by turning off the
radio when he hears indecent language is like saying that the remedy for an
assault is to run away after the first blow. One may hang up on an indecent phone
call, but that option does not give the caller a constitutional immunity or avoid a
harm that has already taken place.
FCC v. Pacifica Found., 438 U.S. 726, 748–49 (1978) (internal citation omitted) (upholding the
FCC’s regulation of radio broadcast); cf. Rowan, 397 U.S. at 736–37 (“[A] mailer’s right to
communicate must stop at the mailbox of an unreceptive addressee.”). Once again, we find no
reason to distinguish among these media for our First Amendment analysis.
c. Lawyers’ Reputations
Finally, Florida Bar recognized the state’s “substantial interest . . . in preventing the
erosion of confidence in the [legal] profession that . . . repeated invasions [of privacy by lawyers]
have engendered.” 515 U.S. at 635. The Florida Bar court distinguished between two kinds of
direct-mail advertisements: (1) those that cause offense to the recipient and whose harm can “be
eliminated by a brief journey to the trash can,” id. at 631; see also Bolger, 463 U.S. 60 (rejecting
federal ban on direct-mail advertisements for contraceptives), and (2) those whose harmful
effects extend beyond the recipient by, for example, tarnishing the reputation of a professional
group. See Florida Bar, 515 U.S. at 631 (“The Bar is concerned not with citizens’ ‘offense’ in
the abstract, but with the demonstrable detrimental effects that such ‘offense’ has on the
profession it regulates. Moreover, the harm posited by the Bar is as much a function of simple
receipt of targeted solicitations within days of accidents as it is a function of the letters’ contents.
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Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does
little to combat the former.” (internal citations omitted)). A solicitation that offends is not likely
to be any less detrimental to the reputation of lawyers when spoken aloud, displayed on a
computer screen, or conveyed by television.
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Accordingly, we conclude that ads targeting certain accident victims that are sent by
television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which
can properly be prohibited within a limited time frame, than to “an untargeted letter mailed to
society at large,” which “involves no willful or knowing affront to or invasion of the tranquility
of bereaved or injured individuals and simply does not cause the same kind of reputational harm
to the profession” as direct mail solicitations. Florida Bar, 515 U.S. at 630.
Moreover, we do not find constitutional fault with the 30-day time period during which
attorneys may not solicit potential clients in a targeted fashion. As with Florida Bar’s “short
temporal ban,” New York’s moratorium permits attorneys to advertise to the general public their
expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident
victims, so long as these victims are not specifically targeted. It further allows accident victims
to initiate contact with attorneys even during the thirty days following an accident. See Florida
Bar, 515 U.S. at 633. In fact, as amici New York State Bar Association point out, New York’s
moratorium is more narrowly tailored than that of Florida Bar insofar as it incorporates the Task
Force Report’s fifteen-day black-out period, which shortens the moratorium period to fifteen
days where an attorney or law firm must make a filing within thirty days of an incident as a legal
prerequisite to a particular claim. N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.52(e),
1200.36(a), 1200.36(b). No doubt the statute could have been more precisely drawn, but it need
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not be “perfect” or “the least restrictive means” to pass constitutional muster. Bd. of Trustees of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).
New York’s moratorium provisions prohibit targeted communications by lawyers to
victims, their families, or their representatives as to a specific personal injury or wrongful death
event, where such communications occur within thirty days of the incident in question. Where a
legal filing is required within thirty days, the moratorium is limited to fifteen days. These
provisions, although they reach a broader range of advertisements than those proscribed by the
moratorium in Florida Bar, do not impose barriers inconsistent with the First Amendment. We
conclude that the moratorium provisions, as construed, are sufficiently narrowly tailored to
survive constitutional scrutiny.
CONCLUSION
The thorough and well-reasoned opinion of the District Court is AFFIRMED, except as
to N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3)’s ban on “the portrayal of a fictitious
law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or
otherwise imply[ing] that lawyers are associated in a law firm if that is not the case.” With
respect to this portion of § 1200.50(c)(3) only, the judgment of the District Court is REVERSED.

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