Commercial Speech and Lawyer Access to Public Records
| Publication year | 1995 |
| Pages | 1313 |
| Citation | Vol. 24 No. 6 Pg. 1313 |
1995, June, Pg. 1313. Commercial Speech and Lawyer Access to Public Records
Since Bates v. State Bar,(fn1) the 1977 U.S. Supreme Court decision that recognized the right of lawyers to engage in truthful advertising, the legal profession has been responsible for determining some of the outermost contours of the U.S. Constitution's First Amendment right to commercial speech. This article reports on the case law underlying access to government-held information for the purpose of targeting commercial speech, including the 1994 Tenth Circuit case of The Law Firm of Lanphere & Urbaniak v. State of Colorado.(fn2)
In the 1978 case of Ohralik v. Ohio State Bar Association,(fn3) the U.S. Supreme Court held that a state may ban completely a lawyer's in-person solicitation of clients to prevent the potential for overreaching, undue influence and intimidation on members of the public that is present when "a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person."(fn4) At the same time, however, states may not ban outright the use of direct mail by attorneys to solicit clients known to be in need of legal services.(fn5)
In McHenry v. Florida Bar(fn6) (in which certiorari has been granted by the U.S. Supreme Court), the issue is whether Florida may prohibit direct-mail solicitations to personal injury and wrongful death victims and their relatives for thirty days after an accident or a disaster.(fn7) Closer to home, the Colorado General Assembly in 1992 passed House Bill ("H.B.") 92--1078, § 23,(fn8) which amended the Colorado Criminal Justice Records Act ("Act").(fn9) Specifically, H.B. 92--1078, § 23, added § 24-72-305.5, which provides:
Records of official actions and criminal justice records and the names, addresses, telephone numbers, and other information in such records shall not be used by any person for the purpose of soliciting business for pecuniary gain. The official custodian shall deny any person access to records of official actions and criminal justice records unless such person signs a statement which affirms that such records shall not be used for the direct solicitation of business for pecuniary gain.
The knowing violation of this prohibition is a misdemeanor subject to a sentence of imprisonment of up to ninety days in jail, a fine of $100, or both.(fn10)
H.B. 92-1078, § 23, withstood a First Amendment challenge in Lanphere, mentioned above. Lanphere is significant because, heretofore, commercial speech cases involving lawyers have been publicized when they involve a particular mode of communication.(fn11) Lanphere, by contrast, focuses on access to the data used to determine who the advertising will target. In other words, as discussed in detail below, Lanphere involves the mode of targeting the market in the lawyer's advertising campaign.
In Houchins v. KQED, Inc.,(fn12) a television and radio broadcaster reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail in California. The report included a statement by a psychiatrist that the conditions at the facility were responsible for the illnesses of the psychiatrist's patient-prisoners there and a statement from a representative of the jail denying that prison conditions were responsible for the prisoners' illnesses. The broadcaster requested permission to inspect and take pictures within the Grey-stone facility. The request was denied, and the broadcaster filed suit, claiming a constitutional right to access.
In a plurality decision,(fn13) the U.S. Supreme Court held that neither the First Amendment nor the Fourteenth Amendment mandated a right of access to government-held information or sources of information within the government's control.(fn14) The Court stated that it had "never intimated a First Amendment guarantee of a right to access all sources of information within government control."(fn15)
Since Houchins, the Court has revisited the issue of access to government-held information. Recognizing Houchins' precedential value and at the same time evaluating three other Supreme Court decisions on the subject,(fn16) the Third Circuit in Capital Cities Media v. Chester stated that...
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