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First Amendment

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names

Posted Dec 13, 2010 1:28 PM CDT
By Martha Neil

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By refusing to hear an appeal of a 2nd Circuit decision earlier this year, the U.S. Supreme Court has apparently turned a friendly eye on the use of law firm slogans and descriptive trade names that include a bit of chest-beating, according to the Associated Press.

Although it is potentially possible that nicknames such as the "heavy hitters" slogan that law firm Alexander & Catalano had been using in its television advertising could mislead, there was no showing that they had, in fact, done so. And, even if there was a need for clarification to prevent misunderstanding, that need could be addressed by disclaimers or other methods less chilling on lawyers' constitutional right to free speech than a blanket ban on the use of descriptive terms, held the 2nd U.S. Circuit Court of Appeals in its March 12 ruling (PDF).

New York attorney disciplinary authorities had taken no action against the personal injury firm. However, Alexander & Catalano challenged new advertising rules that seemingly prohibited its continued use of a "heavy hitters" slogan, as well as comical advertising portrayals of its lawyers' abilities.

In fact, the 2nd Circuit noted, Alexander & Catalano's lawyers don't run so quickly to a client's home that they are barely visible as blurs or provide legal aid to space aliens. “But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe—purely as a matter of ‘common sense’—that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics."

Earlier coverage:

ABAJournal.com: "2nd Circuit: Ban on Law Firm Nicknames Violates First Amendment"

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