Being a newbie blogger, it was more than interesting to attend something called Blawgthink last week. A combination of structured presentations and extended interactive brainstorming, the event was put together by veteran bloggers Dennis Kennedy and Matt Homann
I lead a discussion on the Ethics of Blogging, perhaps the first of its kind. My proposition was, and is, that if the content of a blog is not commercial speech, then the blog is not controlled by the rules that control lawyer advertising. In other words, if nothing within the blog "beckons business" or "proposes a commercial transaction" to use the words of the Supreme Court when discussing commercial speech, then the lawyer who is blogging has the full First Amendment rights to political discourse as anyone. Clearly there are some troubling areas here, but it seems to me that the courts will have a difficult time determining "intent" over "content" and imposing restrictions under a belief that someone is trying to get business when nothing in the content of the message says that they are.
We will have to wait for some future direction on this, but lawyers who are burdened by state rules, such as filing and screening obligations, will have a difficult time blogging if they have no carve-out. Perhaps that carve-out should be based on the First Amendment.
I enjoy your comments on the LMA list serve. Do you think that a blog (written by a lawyer) which is otherwise not commercial or beckoning, becomes such (and thereby risks losing First Amendment protection) if it merely links to a law firm's web site?