There is a pending case in Louisiana that could become very significant for lawyer advertising in Texas. In Public Citizen, Inc., et al. v. Louisiana Attorney Disciplinary Board, et al. (E.D. La. Aug. 3, 2009), the court struck down parts of Louisiana’s rules about attorney advertising on the internet — including the requirement that these ads be filed and approved in the same manner as other ads, with a $175 fee for the privilege. [link to summary judgment order]
One example discussed by the court was a pay-per-click advertising campaign that included 12 different variations of ad text for a total cost to the firm of $160. Under Louisiana’s filing requirements, those costs would have been dramatically higher. (( The assumption in the opinion is that each ad variant would have required a separate filing fee of $175. That would certainly have been true if the advertising firm made changes to its ads over time trying to boost their effectiveness, which is a how the pay-per-click advertising model works in practice. ))
The court held that filing requirement unconstitutional “as it pertains to the filing requirements for internet advertising.”
The court also held Louisiana’s blanket extension of its advertising rules onto the internet was unconstitutional because the state had not carried its burden of showing that this extension directly and materially advanced any state interests or that it was sufficiently narrowly tailored to do so in light of the distinct character of internet communications.
The parties have been ordered to submit a proposed judgment next week.
If this case makes its way up to the Fifth Circuit, Texas practitioners could get some guidance about the viability of Texas’s similar restrictions on lawyer advertising on the internet.