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Alexander v. Cahill - 598 F.3d 79 (2d Cir. 2010)


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. The state's burden with respect to that 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. Moreover, if the protections afforded commercial speech are to retain their force, a court cannot allow rote invocation of the words potentially misleading to supplant that burden.


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 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. 


 Did the new rules that prohibit certain types of attorney advertising and solicitation a violation of the First Amendment?




The United States Court of Appeals for the Second Circuit affirmed the district court's opinion in large part but reversed in part. The district court properly granted summary judgment to the cross-appellants with respect to the content-based advertising restrictions, with the exception of the prohibition on portrayals of fictitious law firms, and it properly granted summary judgment to appellants with respect to the 30-day moratorium. 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.

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