New Jersey Law Journal  

January 14, 2008

BLOGS AFFORDED UNEQUAL PROTECTION

COMMERCIAL CONTENT IN A BLOG MAY DIMINISH ITS FIRST AMENDMENT PROTECTIONS

BY JONATHAN BICK     Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

T he Supreme Court ruled that commercial speech is entitled to limited First Amendment protection, but failed to clearly identify commercial speech. If a business elects to engage in a debate on important social issues, therefore, it has no way of knowing the level of constitutional protection that speech will receive. This issue is becoming especially important to owners of Internet Web logs, or blogs.

Blogs are economical and accessible, requiring only a computer, Internet access and, perhaps, a blogging program. A recent Gallup poll found tens of millions of American Internet users read blogs daily. Whether a blog is offered for enjoyment or profit determines its author's duty to comply with commercial regulations and liability for defamation as commercial speech.

The First Amendment added a free-speech protection to the United States Constitution. This Amendment's principal aim was to protect ordinary political deliberations. However, courts have found that other speech, including commercial speech, is also protected.

Blogs may be either commercial or noncommercial speech. While the First Amendment protects categories of speech, commercial speech is less protected.

Traditionally, commercial speech is the promotion of a product by providing information about that product. It is speech that does no more than propose a transaction. The Supreme Court established a separate and less powerful constitutional right to 'commercial speech' --; speech intended to promote and advertise products for sale, as opposed to political or expressive speech.

The Supreme Court first distinguished between commercial and noncommercial speech in Valentine v. Chrestensen , 316 U.S. 52 (1942). In Valentine , the Court found the government's restraint on an individual's distribution of a duel purpose handbill (advertisement on one side and a protest on the other) was constitutional.

The Court noted that although the Constitution prohibits states from placing an undue burden on the exercise of the freedom of communicating information and disseminating opinion, the Constitution imposes no such restraint on the government with respect to commercial advertising. The Valentine court found that the purpose of the individual's political speech was to evade the prohibition against the distribution of handbills in the street. A similar finding may be applied to blogs that contain both commercial and noncommercial speech.

The limited constitutional protections for commercial speech are set forth in Bigelow v. Virginia , 420 U.S. 809 (1975), which clearly states such speech is subject to government regulation. In Bigelow , the Court states that speech appearing as paid commercial advertisements is not stripped of First Amendment protection merely because it appears in that form.

The Court in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York , 447 U.S. 557 (1980), established an intermediate standard of review for lawful, non-misleading commercial speech. When deciding if the First Amendment should shield commercial speech, four factors must be considered, including: whether the expression concerns a legal transaction and is expressed in an honest way; whether the government has a substantial interest in the expression; whether the regulation of the expression directly advances the asserted government interest; and whether the regulation is no more extensive than necessary to serve that interest.

Subsequently, in Bolger v. Youngs Drug Corp. , 463 U.S. 60 (1983), the Court specified three factors that would assist in distinguishing between commercial and noncommercial speech. In particular, the Court considered: if the speech was conceded to be advertisements, if a specific product was noted, and if the company sending the speech had a clear economic motivation for their distribution. Each of these factors, considered alone, the Court concluded, does not automatically compel a classification of commercial speech. However, the combination of all these characteristics strongly supports the finding of commercial speech.

Blogs may confer several different types of benefits to a blog owner. Some blog owners may receive pleasure and entertainment from their blog, while others may receive commercial benefits. Benefits can include recognition as an expert in a field, employment opportunities, free products from businesses seeking publicity and revenue from advertising. Blog owners who intend to receive commercial benefits are as likely to be considered to have engaged in commercial speech as are those blog owners who actually receive commercial benefits.

Defining the characteristics of a blog's content is crucial for determining whether a blog falls into the commercial-speech category. Cross-promotion and advertising are the two most prominent characteristics associated with blogs that are subsequently deemed to be commercial speech.

Blogs that promote other businesses or services, such as blogs maintained by practicing attorneys, have been found to be commercial speech and subject to regulation. For example, the Kentucky Supreme Court has adopted a rule that charges fees for 'lawyer advertising' on lawyer blogs. The Court defined advertisement to include all disseminated communications containing an attorney's name, with enumerated exceptions. Attorneys are required to file all nonexempt advertisements, together with a $50 filing fee.

New York attorney advertising regulations require attorneys to label their Web sites and blogs as advertising. The New York amended rules also require attorneys to print a hard copy of the blog every time it is modified, store the printout for a period of at least a year, and send an additional copy to the New York attorney disciplinary committee for its records.

While some attorney blogs have been deemed commercial speech, it is not clear that a court would uphold how those blogs are regulated. Some of the specific regulations noted above, however, may violate the First Amendment due to being overly broad.

A blog containing advertisements should not be automatically placed in the commercial speech category. The court in New York Times Co. v. Sullivan , 376 U.S. 254, 266 (1964), differentiated between a newspaper as a speaker and as a publisher. A blog, like a newspaper, may be either a speaker or an advertiser. Thus, a blog, like a newspaper that contains paid advertising but does not cross-promote other businesses or services, should not be categorized as commercial speech.

Additionally, technological advances have impacted the law of defamation. Just as the advent of the printing press caused courts to begin to distinguish between verbal (slander) and written (libel) defamatory statements, the Internet caused both courts and Congress to eliminate publisher and distributor liability for defamatory statements made by third parties. This reduction in liability supports the application of traditional speech protection for blogs.

However, blogs also may cause the policy rationale behind the Sullivan decision to be questioned. The Sullivan Court distinguished between advertisements and newspaper content because of the very high cost of publishing one's own newspaper or magazine, which in turn would cause at least some individuals or organizations to no longer have the opportunity to express their ideas through mass print media. However, unlike traditional media, there are no cost barriers to starting a blog.

The integration of advertising into the content of a blog presents a factual differentiation between traditional media and blogs. Since a newspaper acts as a passive conduit for clearly identified advertisements, and a blog integrates the advertisement into the content, it is likely that the Sullivan Court's finding will not be appropriate.

The line between editorial content and advertising is further blurred when blog owners sell --; often secretly and without providing appropriate disclosures --; endorsements and other editorial content. In fact, the practice is so common that there are even Web sites and message boards where blog owners may sell 'editorial' blog posts to advertisers.

A blog may start as ordinary speech but change to commercial speech. For example, once a blog starts to attract visitors, the blog may start to promote a product for profit due to the blog's credibility in the relevant field. Similarly, a blog may start as a site which provides educational material, but subsequently, act as an advertisement for goods or services offered by the blog owner.

To avoid legal difficulties, a blogger should clearly define the intent of the blog. If the intent is commercial, then the blogger should endeavor to comply with appropriate regulations and not depend entirely on First Amendment protections.