As anyone who watches local broadcast television knows, I am an ardent proponent of advertising — and not just because I like seeing myself on TV.
OK, I know that some will disagree, but believe me, we produce and air the ads for one reason and one reason only: They are an extremely effective way for my law firm to reach people who may need legal representation
What most folks do not know is that viewers would not have seen my mug on the boob tube before 1977, the year the U.S. Supreme Court held in Bates v. Arizona that advertising bans imposed by state bar associations violated the First and Fourteenth amendments.
And people wonder why I love the Constitution …
In their decision, the majority noted that a lack of information about the price of legal services “tends to dissuade people of modest means from seeking legal representation, even when it is in their best interest” to hire a lawyer. In addition, Justice Harry Andrew Blackmun asserted that many meritorious cases were not being filed because the “middle 70% of our population is not being reached or served adequately by the legal profession.”
In essence, the court said advertising played an essential role in ensuring that all Americans had access to the judicial system. He was absolutely correct.
It is important to note, however, that the outcome of Bates would have been far different if the case had reached SCOTUS before 1975. Until then the court had repeatedly ruled that commercial speech, including print and electronic advertising intended to sell products or services, was not protected by the First Amendment, and could therefore be regulated by local, state, and federal governments.
Fortunately, two cases upended what was clearly a misguided precedent: Bigelow v. Virginia (1975) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.(1976).
In the former case, Justice Blackmun observed “The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” In the latter, he wrote that the free speech guarantees afforded by the Constitution include both the right of the speaker to speak and the right of the listener to receive information.
The Bates case that was decided two years later bootstraps onto these seminal decisions and enables me to appear in commercials for my law firm.
While Bigelow, Virginia State Board of Pharmacy and Bates extended First Amendment protection to commercial speech, they do not give advertisers the right to make false or misleading statements or promote illegal activities.
The Federal Trade Commission, the Justice Department, and state attorneys general are empowered to act against advertisers who make outrageous claims or attempt to defraud consumers.
Similarly, ethical rules established by the Ohio Supreme Court dictate what I and other attorneys can say in our advertising, which means the words I am saying when I look into the camera must be the truth, the whole truth, and nothing but the truth, so help me God.