Greetings from Nashville. The First Amendment Moot Court competition is in its final hours at Vanderbilt Law School. It's an exhausting two-day schedule (for the moot court teams, not for judges like me) and some of the finalists seem bleary-eyed. At one session earlier today, some of the student advocates, it seemed, had to remind themselves which side they were arguing. (Under the rules, the teams must be able to argue either side.)
This year's problem is a tough one. At issue is a flyer, distributed by a lawyer who specializes in the law of entitlement programs, that raises doubts about the solvency of Social Security and warns that illegal aliens may be draining benefits away from legitimate recipients. The final line invites the reader to "come see me," and notes that the author is an attorney at law -- though it does not offer specific services or remedies to the problems he raises. The hypothetical attorney is suspended for a year by a lawyer disciplinary board for misleading advertising, and for not printing the word "Advertisement" at the top as a disclaimer.
Teams arguing for the lawyer tried mightily to convince judges that the flyer is political, not commercial speech, that it therefore deserves full First Amendment protection, and that even if it is deemed commercial, it is not misleading. One of the semifinalist judges said the students arguing for the disciplinary board have "an inherent advantage," though some of the First Amendment arguments made on behalf of the lawyer have been very persuasive. It's a close call.
The arguments have underscored how unsettled commerical speech law is, and how difficult it is even to define what commercial speech is. And should there be a distinction at all anymore between commercial and political speech? As Justice Scalia has pointed out, newspapers in the time of the framers of the Constitution carried as many ads on their front pages as news stories. What's more, in the current climate where the legal profession seems less and less professional day by day, some of the disciplinary rules that can restrict lawyer speech seem downright quaint and anachronistic. But a fascinating problem nonetheless.
As soon as the final winners are announced Friday evening, they''ll be posted at the First Amendment Center's website. The winning team will deserve accolades and a rest. Arguing about the First Amendment is not for the fainthearted.