Dwyer v. Cappell

Appeal No. 13-3235 (3d Cir. Aug. 11, 2014)
Reversed and remanded to U.S. District Court for the the New Jersey. As applied to the advertisements of the plaintiff attorney and his firm, a New Jersey Supreme Court attorney conduct guideline that banned advertising using quotations from judicial opinions unless the opinions appeared in full is an unconstitutional infringement of plaintiffs' free speech rights guaranteed by the First Amendment. The core legal issue is whether the guideline constitutes a ‘restriction’ on speech (which under applicable U.S. Supreme Court precedent is subject to heightened scrutiny) or a regulatory requirement of additional disclosure (to which a lower standard of scrutiny applies). The District Court concluded that the guideline was a disclosure requirement and not a ban on speech, and that it passed constitutional muster because it “reasonably related to the [S]tate’s interest in preventing the deception of consumers” and was not “unduly burdensome.” The Third Circuit Court of Appeals did not determine whether the guideline is a restriction on speech or a disclosure requirement, finding that the guideline would not satisfy even the lesser scrutiny applicable to disclosure requirements. The Third Circuit found that the guideline is not reasonably related to preventing consumer deception, since the remedy (providing a complete judicial opinion) does not necessarily dispel the threat of deception. Although striking down the guideline, the Third Circuit opined, in dicta, that the Committee could constitutionally mandate disclosure of the source of the quotation and a statement disclaiming it as a judicial endorsement. The Third Circuit further held that the guideline was unduly burdensome because the required disclosure (publication of the full opinion) is so lengthy that it effectively rules out advertising by the desired means, such as on business cards, television commercials and other shorter forms of advertising.
Procedural context:
On appeal from the order of the U.S. District Court for the District of New Jersey, which had granted summary judgment to members of the Supreme Court of New Jersey Committee on Attorney Advertising, upholding an attorney advertising guideline as a reasonable disclosure requirement, rather than a restriction on free speech.
Attorney Andrew Dwyer, lauded by New Jersey judges in separate judicial opinions, published on his law firm’s website those complimentary remarks. One of the judges objected to this, and ultimately the New Jersey Supreme Court adopted an attorney-conduct guideline that bans advertising with quotations from judicial opinions unless the opinions appear in full. Dwyer challenged the guideline as an unconstitutional infringement of his freedom of speech as applied to the advertisements of Dwyer and his firm.
Ambro (author), Hardiman, and Greenaway, Jr.

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