Professor Bainbridge weighed in on weblogs as advertising and thinks my distinction between
advertising and publicity, self-promotion, or public relations is “pretty tenuous.” [See my post
yesterday, “KY says every weblawg post is an ad.”] Since Prof. B is trained as a law professor, I
can forgive him for focusing on where he thinks I’m wrong. Since I am trained as a mediator, I
hope he won’t mind my pointing out that our positions are not very far apart, if at all.
Prof. B has pared down my quote a lot. It was first made in a post in which I was
responding to J. Craig Williams’ assertion that weblogging is advertising. I was accepting
arguendo Craig’s position that lawyers have weblogs to get attention, and I was trying to bring
more precise language into the conversation. The main point of my using the quote again last
night can be found in the rest of the quotation — where I feared that Craig’s blanket lumping of
weblogs into the category of advertising would force some lawyer some day to have to convince
Bar Counsel that his weblog was not “advertising advertising.” [Good prediction.]
I also noted that Craig’s definition would make most of the words ever written or spoken “advertising.”
Prof. B’s notion that “self-promotion = advertising” has the same weakness. It turns op/ed pieces,
law review articles, casebooks, CLE presentations and much more into “advertising.” When one
is trying to decide whether a communication should be regulated as “advertising,” it seems to me
that we should be trying to limit that term, by showing that it is a very distinct subset of self-
promotion — rather than publically equating all self-promotion with advertising. By doing so,
Steve Bainbridge gives Kentucky regulators ammunition for bringing virtually all weblogs into
the category of regulated advertising.
Now, I know Prof. B. doesn’t want that result. We both agree that some weblogs might well be
considered advertising, and that it is largely a matter of the lawyer’s intent, much of which will
be demonstrated by the content of the weblog. However, I do not believe that everything a lawyer
does to enhance his or her reputation is advertising, nor that most weblogs written by lawyers are
advertising. More important, I do not believe that every post in a weblog should be treated as a
separate ad. That is especially true when Kentucky requires a $50 filing fee for every instance of
advertising and every change in an advertisement.
Could you imagine how many Tip Jars and Pledge Weeks our
mendicant Professor B. would have on his site, if every posting
cost him $50?? And, could he fit any more BlogAds?
Yes, I was exercised yesterday, when I wrote about Ben Cowgill’s situation. But, it was not
because I believe weblogs deserve a blanket exemption from advertising regulation. [I am not
a “blanket exemption” kinda guy, nor someone who does not see nuances or reason.] I wrote
Kentucky’s advertising regulators have been asserting that a weblog is advertising
— not that it could be advertising.
Ben Cowgill’s Legal Ethics Blog is as far from being an “advertisement” as any weblog
that discusses law could be.
I’m willing to bet that Steve Bainbridge agrees with much of what I just said. I hope
I have not distorted his position. We both agree that there is too much regulation of lawyer
self-promotion (including much on weblogs) should not be regulated as lawyer advertising. I
hope he agrees with me that Ben Cowgill’s Legal Ethics Blog is much more a public service than
update (June 9, 2005 11 PM): In a post today, I’ve gone more deeply into when a lawyer is advertising
for the purpose of the Rules of Professional Conduct. Meanwhile, Stu Levine has landed a big one,
with his portrayal of Prof. Bainbridge as Charlie Tuna, aptly explaining just why all self-promotion
is not advertising. Bringing up the rear: Having just seen Prof. B’s latest update to the above-linked
posting, I am of the mind to suggest he read my lament yabut vs. ellipses.
June 8, 2005
Thirteen hours ago, just after 10 PM last night, I emailed a bunch of weblawggers
to alert then to Ben Cowgill’s tussle with the Kentucky Attorney’s Advertising
Commission over whether weblogs are advertising and every post requires a $50
filing fee. (see our immediately-prior post). I asked them to spread the word about
this problem — which would kill nonymous weblogging by Kentucky lawyers. Within
minutes, Howard Basman blurbed it, which is always a great start to amy information
campaign. Within the hour, Monica Bay devoted significant space, in a post called
his assistance, and Eugene Volokh wrote an extensive piece on the free speech issues.
By the time I got back to my laptop this morning, the following webloggers
had also weighed in (find more at the foot of this posting):
Larry Ribstein – “Blogging and commercial speech”
Evan Schaeffer – “KY Lawyers Welcome Here”
John Steele – “Ben Cowgill’s Troubles with the Kentucky Bar: Is a Blog an Ad?”
Bob Ambrogi – “Free Ben Cowgill”
Walter Olson – “Every law-blog post an advertisement?”
Stu Levine – “Nobody’s Really THAT Stupid”
Ken Lammers – “Blog not an ad”
Shubha Ghosh – “Billboards on the Virtual Highway?”
Evan D. Brown - “Controversy over legal blogging in Kentucky”
That’s at least thirteen in thirteen hours. This is exactly the response I had hoped for
and expected — vigilance, empathy, and the vital offering of unique perspectives.
Where else but the blogosphere could or would you find such quick, informative,
accessible responses from so many parts of the legal profession? Nowhere.
The above posts are not advertising. I will be collecting the links and sending them on
to the KY Advertising Commission.
crossing the grasslands
eight hundred miles
of burma shave signs
the anchorman announces,
a fly & it’s shadow
lifting off the empty page
“writer’s block” from Haiku Sun (Issue X, Jan. 2004)
update (June 8, 2005): I’m going to add more posts on this topic, as I find them.
(Yes, I do love TrackBacks and Technorati.):
George Wallace – “Oh, the Sun Goes Dark for Them Ol’ Kentucky Blawgs”
Stephen Albainy-Jenei – “Is a Blog an Ad in KY?” [Patent Baristas]
Carolyn Elefant – “Support Freedom of Lawyer Blogging in Kentucky”
lowdown (June 9, 2005): Sorry. I have not been able to keep this list complete.
Chronic Fatigue Syndrome is a cruel master — especially, when you try to work
intensely and long (which is why I decided to stop practicing law in 1997).
update (June 9, 2005 11 PM): I’ve gone more deeply into when a lawyer is advertising
for the purpose of the Rules of Professional Conduct.