A recent case coming out of Virginia tests the First Amendment rights of Lawyers who post blog entries about cases in which they participate (and – since their blogging about them presumably win). The case, Hunter v. Virginia State Bar stems from a disciplinary dispute that the Virginia State Bar filed against Horace Hunter, President of Hunter & Lipton, P.C. The Firm maintains a website, a part of which is dedicated to a blog entitled “This Week in Criminal Defense.” Some entries highlight cases in which Hunter secured victories for his clients. In July 2010, the Virginia State Bar notified Hunter that in its belief, the blog did not conform to the State’s Professional Conduct rules and instructed him to post on the blog a “results may vary” type of disclaimer. Hunter refused to post the disclaimer, arguing that his blog posts were protected under the First Amendment.
Because of Hunter’s refusal, the Virginia Bar filed disciplinary charges against Hunter. In response Hunter filed suit in Federal Court seeking injunctive relief. The case made its way to the Circuit Court of Richmond, which ruled found that the blog posts, even though they contained commentary and opinion about the criminal justice system, were really a form of advertisement for his practice, and were therefore not entitled to constitutional protection. Two justices dissented, characterizing the speech as political and therefore beyond the reach of regulation.
Following the ruling, Hunter’s attorney, noted scholar and former law dean Rodney A. Smolla said that Hunter plans to petition the case to the Supreme Court. If there their petition is successful, the case would represent one of the first before the court to deal with issues of blog posts.
Hunter’s chief gripe seems with the disclaimer requirement. Publishing a disclaimer, does, arguably, dilute the objectivity of a case observation. But query, what if Hunter had orally stated to a local news agency the commentary he made on his blog? Would he have had to make a disclaimer under such circumstances? And isn’t the fact that the blog is on his firm’s website sufficient to demonstrate a modicum of self-promotion rendering the disclaimer unnecessary?