Dwyer v. Cappell
2013 U.S. Dist. LEXIS 89901
D.N.J.2013Background
- Plaintiff Andrew Dwyer and The Dwyer Law Firm operate a live website featuring judicial quotations about their abilities.
- Quotations come from unpublished judge opinions; examples include remarks by Judge Fuentes, Wertheimer, and Hurd.
- In 2008 Judge Wertheimer expressed concern about the quotations and asked removal; Plaintiffs declined.
- That concern was referred to the New Jersey Committee on Attorney Advertising to assess Guideline 3’s permissibility.
- Guideline 3, adopted in 2012 after a public comment period, bans quotations from opinions about attorney abilities on advertisements.
- Plaintiffs filed suit on May 30, 2012, one day before Guideline 3 took effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Guideline 3 bans speech or is a disclosure rule | Dwyer argues Guideline 3 bans quotations. | State Committee contends Guideline 3 requires context via full opinions. | Guideline 3 is a disclosure requirement, not a ban. |
| Whether Zauderer or Central Hudson governs review | Zauderer framework not addressed; argues stronger scrutiny. | Zauderer applies to disclosure; if treated as restriction, Central Hudson applies. | Zauderer governs because Guideline 3 is disclosure; passes reasonableness. |
| Whether Guideline 3 passes Zauderer reasonableness | Guideline 3 burdens speech beyond necessity to prevent deception. | Disclosure is reasonably related to preventing consumer deception and preserving judiciary integrity. | Guideline 3 passes Zauderer, is constitutional. |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985) (disclosure requirements in commercial speech must be reasonably related to preventing deception)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (U.S. (1980)) (intermediate scrutiny for restrictions on commercial speech)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (U.S. (2010)) (applies Zauderer reasonableness to disclosure in advertising cases)
- Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (U.S. (1978)) (professional regulation of lawyers; strong state interest)
- Florida Bar v. Went For It, Inc., 515 U.S. 618 (U.S. (1995)) (state interest in regulating professions; tailoring of disclosure)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (U.S. (1995)) (central consideration of informational disclosures to prevent deception)