QOTD

In Alexander v. Cahill, (2d Cir. Mar. 12, 2010), a panel of the Second Circuit addressed whether the New York ethics rule banning targeted attorney solicitation of accident victims in any media -- including the via the Internet -- within 30 days of the accident was sufficiently narrowly tailored to survive constitutional scrutiny. The panel upheld the restriction, concluding that the same analysis should be applied to all communications media, including the Internet (slip op. at 28-29):

[T]o us, the affirmative act of walking to one’s mailbox and tearing open a letter seems no greater than walking to one’s front step and picking up the paper or turning on a knob on a television or radio.

It is true that the Internet may appear to require more affirmative acts on the part of the user in order to recover content (and is therefore perhaps entitled to greater First Amendment protection insofar as users are soliciting information, rather than being solicited). But regardless of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters; newspapers are often read online; radio streams online; television programming is broadcast on the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 (2003) ("[T]he impending shift of all networks to packet switched technologies promises to cause all of the distinctions based on the means of conveyance and the type of speech conveyed to collapse entirely."). Furthermore, Internet searches do not bring a user immediately to the desired result without distractions. Advertisements may appear with the user’s search results; pop-up ads appear on web pages; and Gmail (Google’s e-mail service) creates targeted advertising based on the keywords used in one’s e-mail.

(via Association of Corporate Counsel)