Two Lesser Known Freedom of Speech Cases

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David Ryan

David Ryan is a boat builder and USCG licensed master captain. He is the owner of Sailing Montauk and skipper of Montauk''s charter sailing catamaran MON TIKI You can follow him on Twitter @CaptDavidRyan

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  1. Avatar Jaybird
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    says:

    Here in Colorado Springs, the only doctors who advertise (at least during the shows I watch and/or on the radio stations I listen to) are the Lasik Surgery guys (who always seem to be running some sort of “jump through this hoop and get $500 off!” promotion as well). After that, maybe there are dentists who advertise but it’s always the dentists who have obvious brands (like “Perfect Teeth”) rather than the dentists whose practices have boring names like “John Smith, DDS”.Report

    • Avatar Mike Schilling in reply to Jaybird
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      says:

      Here we also have cosmetic surgeons, in particular guys who do hair transplants, and practices that specialize in sports medicine.Report

      • Avatar Jaybird in reply to Mike Schilling
        Ignored
        says:

        Which makes me wonder: are the “real” doctors out there (I mean no offense to the hair transplant professionals) not advertising because they’re traditionalists when it comes to advertising?Report

        • Avatar Mike Schilling in reply to Jaybird
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          says:

          Sports medicine is quite real, and I hear it advertised (no surprise) on sports stations. I don’t know if there are other sorts of narrowcasting (pediatricians on shows about parenting, etc.)Report

      • Avatar Burt Likko in reply to Mike Schilling
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        says:

        Jah, mon. And some who help their patients meet their medical marijuana needs.Report

        • Avatar Jaybird in reply to Burt Likko
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          says:

          Denver famously (or infamously) banned advertising Medicinal Weed. Like down to the sign spinner level (which strikes me as downright unconstitutional).

          This would strike me as less interesting if Colorado Springs didn’t seem to have an effective moratorium on advertising its even existence (outside of the local “alternative” newspaper, anyway).

          Even the ads for Grow Warehouse discuss the joys of having hydroponically home-grown tomatoes year round.

          I’m a big fan of winking and nodding but this is kinda nutty.Report

          • Avatar NewDealer in reply to Jaybird
            Ignored
            says:

            Now these are interesting cases. Do you have a free speech right to advertise a quasi-legal or illegal industry?

            IIRC the Supreme Court refused to hear a case concerning brothel/escort advertisements in Clark County (home of Las Vegas). Prostitution is legal everywhere in Nevada but Clark County. The question was whether escorts and brothels could advertise in Clark County.Report

    • Avatar Dan Miller in reply to Jaybird
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      says:

      In DC and SF, I don’t see individual doctors advertise very frequently (though maybe I just haven’t noticed it), but hospitals and the like advertise heavily (“Shortest ER waiting times” was a major focus of one campaign in SF).Report

    • Avatar Snarky McSnarksnark in reply to Jaybird
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      says:

      I live in Orange County, CA. Perhaps we’re on the bleeding edge of capitalism, but certain kinds of doctor’s advertise like crazy out here: dentists (particularly tooth whitening and implants), cosmetic surgery, and medical marijuana referrals. I see these advertising on billboard signs, direct mail, newspapers and local arts and culture magazines, coupons, and “classified ad” magazines that get sent to my house whether I want them or not.

      I think this is primarily because more “normal” medical care goes through one’s insurance referral procedures: I can’t imagine my MD telling me I needed to see a cardiologist, and my thinking back on the bus benches I’ve seen recently; whereas cosmetic and lifestyle medicine is generally contemplated over a longer period, with a lower downside to selecting the wrong guy.Report

      • Avatar Jeff No-Last-Name in reply to Snarky McSnarksnark
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        says:

        Good old OC, CA. Fun place, that.

        I worked in Irvine for a while, so got to see the OC Register (a glibertarian rag if ever there was one) every day. Each day would be some Op-Ed on the Eeeeeeeeeeeeeeevil Gubment taking away our rights and how the Free Market would make everything moar better. Until Michael Eisner decided to raise the entrance fees at Disneyland! Then it was “There ought to be a law!!!!!!”.

        Too funny.Report

        • Avatar Snarky McSnarksnark in reply to Jeff No-Last-Name
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          says:

          The OC Register used to offer me a subscription for $1 per year (I live in a “demographically desirable” zip code, even if I am only there by dint of accidental boundaries.

          I found that the editorial page of the newspaper (and the adjoining “letters” page) would raise my blood pressure. Although Orange County has become quite culturally and politically diverse, the Op-Ed pages of the OC Register are still the almost-exclusive bastion of the resentful Right.

          When I tried to cancel my subscription, it took me more than 20 minutes: they woman on the other side of the phone refused to accept my cancellation. “But it only costs you a dollar a year!” she sputtered, uncomprehendingly. When I affirmed that I did, indeed, want to cancel, she waived the dollar, but refused to have the paper stop appearing on my doorstep. I ended up having to talk with the circulation director to finally get my front porch cleaned up.Report

  2. Avatar Tod Kelly
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    says:

    A tangential note: Having worked with a lot of trade associations over the years (doing so was a key component of how we marketed to the association’s industry), one of the things I came to learn is how often “self-policing” by an industry is at least couched to its members as a way to limit the number of new and smaller competitors.Report

  3. Avatar Russell Saunders
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    says:

    The AMA has no power over physicians. It is an entirely voluntary organization, the principal purpose of which is to lobby for its members interests. Regulation is done through certifying boards (eg. the American Board of Pediatrics), which confer credentials of specialty, and through state licensing agencies.

    I’m not a member of the AMA, and no matter what professional malfeasance I might commit it would have no role in censuring me.Report

  4. Avatar Burt Likko
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    says:

    California’s bar is integrated. Tennessee’s bar is private (attorney admissions are handled by the state Supreme Court through a committee it appoints).

    I view lawyer advertising as a tacky facet of my profession which must be tolerated. I can only imagine most doctors feel similarly.Report

    • Avatar Mike Schilling in reply to Burt Likko
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      says:

      Just call Saul!Report

    • Avatar Russell Saunders in reply to Burt Likko
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      says:

      Certain kinds of advertisement are relatively standard, such as announcing the opening of a new office or the addition of new providers.

      Television ads along the lines of Joe Bornstein, etc. would be viewed as incredibly tacky.Report

      • Avatar Tod Kelly in reply to Russell Saunders
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        says:

        “With Crazy Russell’s rock-bottom prices on healing, you can’t afford *not* to get infected!”Report

        • Avatar Russell Saunders in reply to Tod Kelly
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          says:

          “We change our syringes between patients every single time!

          “Come for the stomach pain. Stay for the pie.”

          “Refer a friend, and get a voucher for one no-questions-asked antibiotic prescription!”Report

          • Avatar James Hanley in reply to Russell Saunders
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            says:

            See, I’m just crazy enough I might actually go there. At least I know they want my business. I like my doctor on both a personal and a professional level, but her group’s approach to customer service, like, oh, I don’t know, answering the goddam phone so I can make an appointment instead of leaving a message so they can call me back at their convenience, makes me pretty damn sure they’d like to run off a few dozen patients of so.Report

            • Avatar dhex in reply to James Hanley
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              says:

              mr. hanley – if you haven’t already, let your doctor know that their front office is screwing up their pipeline and alienating some patients to the point where they think about leaving. they might have some internal complaints already about related issues with staff, but they also might not know how badly things are going with the patient experience.Report

    • Avatar NewDealer in reply to Burt Likko
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      says:

      As I mentioned below, the bans on attorney advertising are often great for corporations but bad for individual clients.

      How is someone supposed to find a plaintiff’s firm to handle their employment discrimination or product liability case? Or a criminal defense lawyer to handle their burglary charge? Or an immigration lawyer to help prevent their deportation?

      Yes some lawyers can be very imaginative with their advertisements but I want to hear a better way for individual and small-business clients to find a lawyer.Report

      • Avatar Burt Likko in reply to NewDealer
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        says:

        Ask for a reference from a friend whose judgment you trust.Report

        • Avatar NewDealer in reply to Burt Likko
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          says:

          I can see how that can work for immigration. It is somewhat presumptive that everyone is going to know someone who knows a lawyer.

          Being born and raised in the upper-middle and professional classes, I can probably ask around for a whole range of services: law, medicine, a good cleaning person, a gardener, a carpenter, interior designer, tailor, etc. If someone grew up outside of those communities, I can see how it could be very hard to find a lawyer. We live in an era of mass-educational segregation and this does not benefit the poor or working classes.Report

    • Avatar NewDealer in reply to Burt Likko
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      says:

      Also, I have friends who are hanging up their own shingle because of the tough legal market.

      How should they find clients as new and independent lawyers?Report

      • Avatar Burt Likko in reply to NewDealer
        Ignored
        says:

        1. Choose rich parents. That way, you’ll have the social background to have had friends who are now decision makers for larger companies — ideally insurance companies.

        2. If #1 is not an option, network with other lawyers. Ask if they have contract work to farm out, appearances they’d rather not make that you can cover, if they have a particular kind of work they refer out because they prefer not to do it themselves. If you notice that a lot of lawyers in your area seem to all be doing the same kind of work, maybe there’s a reason for that and you should learn how to do it too.

        3. Be promiscuous with your business card. Join any and every social group you can think of and be relentless about finding a way to get your name in front of people and your cards in their wallets. Those cards do you zero good in your pocket. The more money you spend on cards, the better, and cards given to court clerks and court reporters don’t count. 95% of the people you give it to will never use it and half of the people who do will not bring you anything you want to do. But the 2.5% of the calls that do come in, well, they become clients and those nice people are the ones who will soon enough beg for the opportunity to give you money because your time is in such high demand.

        3a. On your business card, don’t have printed the phrase “Law Offices of NewDealer” hanging out there all by itself. It should say “Law Offices of New Dealer [line break] Real Property Law, Business Litigation, Employment Disputes.” Find a way to identify the areas of practice you want to do which straddle the line between a formal description within the guild (for other lawyers) and something anyone can understand (for laypeople).

        4. Don’t price yourself too cheap. Don’t be afraid to demand money from your clients in exchange for your work. Most clients have not even the origins of a clue as to how to value a lawyer’s services beyond what they pay for them. It’s like wine — the only index available to them of how high the contents of the bottle are is the sticker on front. Learn what the market rate is and charge that. Then, over time, move up from there, never down.

        5. Do good work when you get it. Under-promise and over-deliver. Remember that you are in the customer experience business, not just the legal services business. Leave your client smiling, regardless of the result.

        6. Seriously. Be a SLUT with those business cards.Report

        • Avatar Patrick Cahalan in reply to Burt Likko
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          says:

          I’ll offer one targeted one: if your specialty is small business law, and you can make it relatively easy to incorporate, check your local universities’ calendars for things like entrepreneurial workshops or start-up workshops, or workshops on how to run your own consulting gig.

          And pass out your business card to recently graduated-grad students or postdocs who have a good idea, or who don’t want to work directly for a corp but instead on contract.Report

  5. Avatar Ara
    Ignored
    says:

    I was particularly drawn to your last line “I’ve been thinking about the above for a while, the idea of professionals restraining themselves from doing something legal because legal or not, it’s ultimately not in their own or societies best interests. I’m about it today because earlier this morning I read William Rugers post entitled Capitalist Cure, a review of A Capitalism for the People: Recapturing the Lost Genius of American Prosperity by Luigi Zingales.”

    Many times, about many industries (not specifically honing in on medical or legal) the same two thoughts pop into my head:

    1. Just because its legal does not make it ethical. Just because you can do it as a business (or personal) doesn’t mean you should. By all means take risks, but be guided by rationality, understanding of cause/effect and consequence (and how you are woven into the systems around you), and an inner humanity.

    2. Industry standard as a term and practice has been dramatically reshaped from “what people are doing in their industry because it seems the best way to perform business task with the knowledge they have” to mean “Everybody else does it, so it justifies us doing it too regardless of its right or wrong, or is good long term business sense.” and “If we can get the mass of industry doing something that the public or customers would not otherwise accept, even if its probably not healthy in the long term (aka should be rejected) we can get away with it for much longer.”

    And my following thought is usually, these are the reasons that industries get over-regulated–because in certain areas (some times a lot, sometimes a little) they are very incapable of regulating themselves ethically over the long term, and their behavior shifts entire industries from “capable, best product, consumer/company-relationship balanced with reasonable rights and responsibilities for both parties” to “its legal so we didn’t do anything wrong and you can’t stop us”.

    Thus if something is unethical or damaging, to curtail the behavior, that claim has to be rescinded, and more things become illegal. Regulations aren’t flexible thinking brains, they sweep everybody into a pot, just because an industry, a big enough company, or enough big/mid/smaller companies can’t say all on their own, without the pushback of regulation: this is unethical or damaging; we shouldn’t do it and we won’t do it.

    Medicine needs to be very careful of this, and I think they are working hard as a group to try to rein in some of the more damaging practices from the inside (over 80 hours a week, and hazing of medical students and interns as an example), while protecting their image and not talking too much about it on the outside, precisely to make exterior regulation unnecessary.Report

  6. Avatar joey jo jo
    Ignored
    says:

    Those cases are about lessors? I don’t see any lease issues in them……..Report

  7. Avatar NewDealer
    Ignored
    says:

    There was some discriminatory reasoning behind the ban’s on attorney advertising.

    Notice that most lawyers who advertise are in sections of law that are considered less than elite and serve a less than elite clientele: Personal Injury, Immigration, Divorce, Criminal Defense, etc. This is not white shoe law.

    At one point, most of the lawyers who practiced these forms of law were non-WASPs who could not get into the Corporate firms. The bans against advertising were meant to keep the profession august and responsible by denying new hands a chance to compete.

    I do not support prohibitions against lawyer and doctor advertising because it tends to be very pro-Corporate defense and very bad for individual clients who need to sue corporations.

    Disclaimer: I’m a plaintiff’s lawyer and my heart is with the plaintiff.Report

    • Avatar David Ryan in reply to NewDealer
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      says:

      When one’s beliefs, temperament and financial interests are in alignment it’s a beautiful thing!Report

      • Avatar NewDealer in reply to David Ryan
        Ignored
        says:

        It doesn’t change the reasoning for the original AVA ethics rules. One of the lawyer’s who devised them at the begging of the 20th century was explicit in saying that they were designed to make it hard for “Russian Jew Boys” (and other minorities) to earn a living as lawyers.

        This was in my ethics textbook. I can’t find the citation on Google.Report

  8. Avatar Robert Greer
    Ignored
    says:

    Ruger’s review of Zingales’s book is great, as I assume is the book itself. Here’s my comment on it, cross-posted from The American Conservative’s website:
    ——————
    This is very smart, and I suspect Zingales’s pro-capitalist anti-elitism will be the direction the Republican Party goes in the next few years. Although liberals are accustomed to thinking their party is the anti-privilege standard-bearer, the Republican Party is better positioned for a jeremiad against the Powers That Be, because they’re the ones eating locusts in the political wilderness.

    Roderick Long makes a convincing case that libertarians have a significant opportunity to win over “the anti-privilege left” — that is, leftists who worry primarily about the accumulation of unjust power. Right-wingers have long argued that government intervention in the economy can actually perpetuate “privilege,” but young liberals have been reluctant to adopt these ideas because these arguments were often made via racialist rhetoric, or by Republican politicians who were obviously socially backward in some other way. But now that electoral demographics are forcing the Republican Party to moderate on racial and other social issues, this is unlikely to remain a problem for long. Republicans will soon be able to make anti-government arguments without seeming like crypto-supremacists, and they’ll find these arguments to be very potent.

    I’m 27, and my young liberal friends are extremely worried about the economic and military-industrial interests that are apparently permanent fixtures in Washington. Because Democrats enjoy a clear systemic advantage in electoral politics (aside from Republican gerrymandering that will be moot in a few years), the Democratic Party can be expected to fuse tighter to these established elite interests. So if Republicans take anti-establishment tacks on issues like drone wars and marijuana prohibition while emphasizing how centralization of economic power hurts the little guy, they should be able to peel off many voters long considered the Democrats have long taken for granted.Report

    • Avatar NewDealer in reply to Robert Greer
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      says:

      Doesn’t Sarah Palin represent that pro-Capitalist, anti-Elitist kind of right-wing populism?

      The GOP has been drumming this beat for years. Possibly my entire life (and I am older than you), I don’t see them have any policies that are actually pro-Capitalist while being anti-Elitist at the same time. I know the GOP likes to fancy themselves as the party of yeoman and small business but most of their policies seem to favor huge corporations and the powers that be.

      False Conciousness comes to mind when viewing the Palin wing of the Republican Party. Their verbal claims do not match their policies or actions.

      Then again, this is the kind of populism that would call an actress making 30,000 a year an elitist because she lives in New York and maybe went to Smith.Report

      • Avatar Robert Greer in reply to NewDealer
        Ignored
        says:

        Look, I disagree with just about every one of Palin’s policy positions, but she’s said some things about the relationship between big business and government that I think even people like you and me can get behind. For example:

        “[Palin] made three interlocking points. First, that the United States is now governed by a “permanent political class,” drawn from both parties, that is increasingly cut off from the concerns of regular people. Second, that these Republicans and Democrats have allied with big business to mutual advantage to create what she called “corporate crony capitalism.” Third, that the real political divide in the United States may no longer be between friends and foes of Big Government, but between friends and foes of vast, remote, unaccountable institutions (both public and private).”

        http://www.nytimes.com/2011/09/10/us/10iht-currents10.html?_r=0

        There’s nothing here that would be out of place in Chris Hayes’s “Twilight of the Elites”, right? Of course, Palin’s cultural conservatism would have jaundiced any transformation of these insights into a political programme, but that’s consistent with what I wrote above. And while you’d be right to say that Republican pro-capitalist policies have favored established wealth due to the historic coalition between anti-elites and big business, my claim is that this coalition is fraying and may no longer obtain.Report

        • Avatar NewDealer in reply to Robert Greer
          Ignored
          says:

          This is sort of what I meant. They say these things but they don’t inact any policies that mesh with their message. If anything the Palinista’s are very good at creating policies that are a further race to the bottom for their target audience.

          Though I think that populist Democratic politicians and populist Republican politicians are speaking to two very different audiences. The GOP populists are speaking to those who have Jeffersonian agrarian fantasies of being a self-sufficient yeoman of sorts. Democratic populist politicians are speaking to an audience that is not fond or desiring of yeoman fantasies and might not even have any desire to be a small business person. The target Democratic audience wants security and welfare, not the chance to be entruepenuers. Basically it is like watching people from different worlds try to compete.Report

  9. Avatar Kazzy
    Ignored
    says:

    Perhaps Russell will weigh in with a more nuanced perspective, but it seems to me that if these groups are private and membership is wholly voluntary, they ought to have the right to whatever criteria for membership they prefer, with the limitation on their enforcement mechanism being expulsion from the group.

    If the AMA advocates best practice and believes that advertising goes against such, they should be free to withhold their endorsement or alignment from folks who don’t engage in best practice. It seems less a freedom-of-speech issue and more a freedom-of-assembly issue.

    That being said, if a doctor would prefer to advertise and forgo the AMA relationship, such should be his right as well.

    Fully conceded that all this goes out the window if relationships are not voluntary and/or if these groups are not wholly private.Report

  10. Avatar zic
    Ignored
    says:

    For many years, my husband wrote statistical research software for oncology research; and so we experienced a good amount of going through the FDA approval process as part of that work.

    About seven years ago, a start-up company we’re involved with went through the FDA approval process for a diagnostic test. In reading the report, I was absolutely shocked; for most of the approval was not centered on the efficacy of the tests, but on the arguments for or against allowing the company to advertise the test to the public. The whole metric of the medical merit seemed lost at the expense of capturing the economic potential from advertising.

    Now I freely admit that there may have been some very basic rules to this process that I’m unaware of; that my perception is biased because there was no need to have the FDA approval do more analysis of the clinical data; as compared to the serious complications from the chemo I’d read of in earlier approval applications.

    This does not bear directly on the freedom of speech issues; but I’m still, these many years later, disturbed at how the regulatory process comparing the earlier experiences to the latter, seemed warped. And warped in a way that the average consumer would never ever suspect, too. It does make me hope someone is evaluating changes in that process in the light of advertising as free speech.Report

  11. Avatar LWA (Liberal With Attitude)
    Ignored
    says:

    Isn’t the doct0r/patient relationship completely different than the used car dealer/ customer relationship?

    This gets at the heart of the “economic triumphalism” that I referred to in an earlier thread, or what I call the “everything is a toaster” syndrome.

    Kidney dialysis, a toaster at a garage sale- its all really the same thing, right?

    I don’t have strong feelings for or against advertising, but I don’t see a benefit to the public in applying the economic theory of consumerism to professional services.Report

    • Avatar NewDealer in reply to LWA (Liberal With Attitude)
      Ignored
      says:

      Yes but that has to deal with disclosure of information. I don’t see why it would prevent a doctor from putting up an ad on a subway for new patients.Report

      • Avatar dhex in reply to NewDealer
        Ignored
        says:

        honestly it depends a lot on the type of medical service being offered. medicine between practitioner and patient is a unique relationship, but so is childcare/day care, legal services, therapy (of the non-physical variety) etc. people, once they find a physician they trust, are willing to travel long distances and otherwise go through quite a few hoops in order to keep seeing them. but before that relationship is built they have to actually meet the doctor first.

        and it also varies heavily by specialty. people seeking bariatric, orthopaedic, or plastic/reconstructive services tend to do a lot of shopping around, and tend to be more well-informed about the procedures involved. general practitioners or pediatricians, not so much.Report

        • Avatar NewDealer in reply to dhex
          Ignored
          says:

          That is largely what I meant. I see the advertisements as setting up the relationship more than anything else.

          Though I don’t see much doctor advertising beyond cosmetic dentistry and Dr. Zizmor in New York.Report

          • Avatar dhex in reply to NewDealer
            Ignored
            says:

            ahh dr. z. he’s been running those ads for years, and the only time they came down was a few years back when he had some kind of kerfluffle with his medical license a few years back. that was cleared up and the ads came back. i don’t think he’s even changed the art in 10 years.

            you also tend to see a lot of medical advertising in niche magazines because it’s easy to narrowly target your audience.Report

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