As we’ve discussed earlier several times, there is a lot of lawyer advertising on television and in other media, and it can have adverse effects. A lot of it also is of questionable accuracy, giving “the false impression that they reflect medical or governmental advice,” using phrases such as “consumer medical alert,” “health alert,” “consumer alert,” or “public service health announcement” to disguise their solicitation, “display[ing] the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency,” and calling something a “recall” although that “product that has not been recalled by a government agency.” Recht v. Morrisey, 32 F.4th 398, 406 (4th Cir. 2022) (affirming constitutionality of state legislation prohibiting these practices).
However, we recognize that attorney advertising is First Amendment protected commercial speech. E.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). It is also big business – as discussed in the recent ATRA publication, “Legal Services Advertising in the United States”:
Trial lawyers and aggregators increasingly spend large sums of money on advertising to recruit new clients for class action lawsuits. In 2024, it is estimated that more than $2.5 billion were spent on more than 26.9 million ads for legal services or soliciting legal claims across the United States. When compared with the same time period in 2020, spending on these ads increased more than 32%.
Id. at Introduction & Background (unnumbered page 2). Our current Secretary of HHS certainly knows this, as he formerly worked at Morgan & Morgan, which is by far the most prolific plaintiff lawyer advertiser of all. Id. at p.8 (M&M spent almost 4 times as much on advertising as any other p-side firm).
Marketing of prescription medical products is also widespread. As the Supreme Court held in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (our post here) – “Speech in aid of pharmaceutical marketing . . . is a form of expression protected by the Free Speech Clause of the First Amendment.” Id. at 557. Sorrell held a state statute that attacked pharmaceutical marketing unconstitutional as a content-based speech restriction. That statute “disfavor[ed] marketing, that is, speech with a particular content. More than that, the statute disfavor[ed] specific speakers, namely pharmaceutical manufacturers.” Id. at 564. That pharmaceutical marketing was also “commercial speech” didn’t matter where the government attempted suppress it on a “viewpoint”-related basis:
[The statute] imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, [the] law imposes a burden based on the content of speech and the identity of the speaker...
