The contested ad, which you can view here (p. 17), is, well, quite boring and innocuous, but that’s a whole other discussion.
The questions at hand is: is the lawyer’s ad considered commercial speech, and therefore “isn’t protected by the state’s anti-SLAPP statute,” or is it free speech and therefore Constitutionally protected?
[The ad] — which was two sentences long — was composed by Los Gatos class action lawyer Pierce Gore and appeared in early 2006 in the San Jose Mercury News and the Los Gatos Weekly Times. It advised wood deck owners to contact Gore if they had built their decks after Jan. 1, 2004, with galvanized screws manufactured by three companies, including Pleasanton-based Simpson Strong-Tie Co. Inc., because they might be entitled to monetary compensation or repairs.
Simpson — the world’s largest manufacturer of screws for use in wood-frame construction — sued Gore, alleging defamation and false advertising, but Gore filed an anti-SLAPP motion, accusing Simpson of trying to stifle his free-speech rights. A superior court judge granted the motion and in 2008 San Jose’s 6th District Court of Appeal affirmed, creating a conflict with Los Angeles’ 2nd District.
As a legal marketer I’ve always had concerns about the restraints on lawyer advertising where the First Amendment is concerned, and the arguments in this case will have wide-spread implications.
[Jon] Eisenberg contends that the ad is unprotected commercial speech because it contained representations Gore made about his business and statements he made in the course of delivering his legal services.
The commercial speech exemption to the anti-SLAPP law, he argued, applies only to “representations of fact” made about the operations, goods or services of the speaker or a business competitor. There was no statement of fact in the ad, he noted, and it did not pertain to Gore or his competitors.
Burke also mockingly said the ad could have won the Hall of Fame award for “benign” advertising and was based on warnings in the news.
“There was a consumer alert before Gore issued his notice,” he said. “There was an investigation by the Contra Costa County district attorney’s office.”
I, for one, am rooting for the First Amendment here and will keep an eye out for the decision in the case, which is due within 90 days.
Disclaimer: As always, I am not a lawyer and I don’t even pretend to play one at work or in bars. These are just my humble opinions.