HawkLaw Attorney Advertising Being Preyed Upon By South Carolina Bar Authorities?

First Amendment v Attorney Advertising Regulation

The internet’s low cost and ease of advertising has increased the focus on the tension between the state regulation of attorney advertising and attorneys’ First Amendment right to commercial speech that was  established by the US Supreme Court in Bates v Arizona in 1977. The latest episode is taking place in South Carolina where attorney (and former state senator) John Hawkins filed suit in Federal District Court  against the South Carolina Commission on Lawyer Conduct, the South Carolina Office of Disciplinary Counsel, and the South Carolina Attorney General.

John Hawkins markets his practice as HawkLaw and often employs the sounds and pictures of a hawk in its advertising, which apparently appears in television ads, on billboards and on the internet. His lawsuit alleges that the defendants are violating Hawkins’ First Amendment rights because they find his advertising distasteful—the attempt to regulate his advertising and impose disciplinary sanctions upon him is thereby unconstitutional. (Read more and see a picture of one of his billboards here.)

In fact, in order to regulate commercial speech, a state must have a compelling state interest and narrowly tailor its regulations to accomplish that interest. Generally, regulating taste (or distaste) does not rise to a permissible constitutional restriction. Hawkins alleges that South Carolina’s attorney advertising rules that prohibit misleading the public and guaranteeing results are being improperly applied to him to chill his right to free speech.

It will be interesting to watch this lawsuit wind through the Court—attorneys have waged successful claims in other states. (For examples see here, here, and here.)

Let’s stay tuned.

 For more general information on attorney advertising see my articles here and here.