Andrew Dwyer v. Cynthia Cappell
762 F.3d 275
| 3rd Cir. | 2014Background
- Attorney Andrew Dwyer published excerpts of favorable judicial remarks about his lawyering on his firm website; excerpts came from unpublished fee-opinion language.
- A judge objected; the New Jersey Bar Committee proposed and the New Jersey Supreme Court adopted Guideline 3, which bans use of judicial quotations/excerpts in attorney advertising unless the full judicial opinion is reproduced.
- The Committee promulgated the Guideline to address the precise type of webpage Dwyer maintained; the Committee offered no empirical evidence that consumers were misled.
- Dwyer sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief; the District Court upheld Guideline 3 as a permissible Zauderer disclosure requirement and granted summary judgment for the Committee.
- The Third Circuit reviewed de novo and considered whether Guideline 3 is a disclosure requirement or a speech restriction and whether it survives First Amendment scrutiny (Zauderer or Central Hudson).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Classification of Guideline 3 (disclosure vs. restriction) | Guideline 3 restricts truthful, non-misleading commercial speech and should receive Central Hudson intermediate scrutiny | Guideline 3 is a disclosure requirement aimed at preventing misleading ads and thus reviewed under Zauderer | Court avoided definitive classification but analyzed under Zauderer and found Guideline 3 unconstitutional as applied to Dwyer |
| Whether Guideline 3 is reasonably related to preventing consumer deception (Zauderer) | Quoting full opinion is unnecessary; a short disclaimer would address any risk of endorsement; full-text requirement does not dispel alleged deception | Full opinions are available and providing full text prevents the misleading impression of a judicial endorsement | Not reasonably related: reproducing whole opinions does not plausibly cure the asserted misleading tendency of excerpts and Committee offered no evidence of deception |
| Whether Guideline 3 is unduly burdensome | Requiring full opinions effectively precludes using judicial excerpts in advertising and chills protected commercial speech | Requirement is a modest disclosure that preserves context | Unduly burdensome: full-text mandate effectively rules out practical advertising use of excerpts (more onerous than disclosures struck down in Ibanez and Public Citizen) |
| Remedy/as-applied relief | Seeks injunction preventing enforcement against his website excerpts | Defends Guideline's enforcement | Court reversed district court and held Guideline 3 unconstitutional as applied to Dwyer; remanded for relief consistent with opinion |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (approval of disclosure requirements that require purely factual, uncontroversial information reasonably related to preventing consumer deception)
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for restrictions on commercial speech)
- In re R.M.J., 455 U.S. 191 (1982) (attorney advertising is commercial speech entitled to First Amendment protection; disclosure preferred to prohibition)
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (attorney advertising protected and disclosure often preferable remedy to suppression)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010) (Zauderer applies to disclosure requirements aimed at misleading commercial speech)
- Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of Accountancy, 512 U.S. 136 (1994) (disclosure requirements that are so detailed they effectively rule out common advertising formats are unduly burdensome)
- Edenfield v. Fane, 507 U.S. 761 (1993) (party asserting regulation on commercial speech bears burden of justification)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (commercial speech receives First Amendment protection; framework for scrutiny of regulations on commercial speech)