Advertising Law

After Cease-and-Desist Letter Over Using 'Texas Workers Comp' in Blog, Lawyer Sues State Agency

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A state agency telling a Texas workers’ compensation lawyer not to use certain words on his blog was a bit like the government once telling the late comedian George Carlin not to use the seven dirty words in his stand-up routine. It led to lots more of same.

A Lubbock, Texas workers’ comp lawyer filed suit (PDF) in federal court Monday alleging all manner of First Amendment and due process violations flowing from a Feb. 7 cease-and-desist letter from the Texas Department of Insurance Division of Workers’ Compensation.

The letter said to stop using certain terms on a legal blog, and otherwise. Those terms are: “Texas Workers’ Compensation” or the use of the term “Texas” along with either “Workers’ Compensation” or “Workers’ Comp.”

The plaintiff, Texas Workers’ Compensation lawyer John Gibson, writes the Texas Workers Compensation Law Blog, so the ban on certain words is more than problematic for his mission to “promote critical and spirited discourse” about developments and issues in that area of Texas law.

According to Texas Labor Code § 419.002, its use is forbidden in connection with “any impersonation, advertisement, solicitation, business name, business activity, document, product or service.”

That might be so broad as to include even Gibson’s suit, filed by Lubbock lawyer Robert S. Hogan.

Hogan doubled down, actually many multiples, and proceeded to use the terms over and over in the complaint to persuade the court, but also, in effect, school the state agency and the state legislature on the ramifications of new provisions added to the law in 2005—but apparently only now strictly enforced. The changes apparently were made to stop deliberately confusing advertisements by insurance companies.

Hogan loads the complaint up with the forbidden words, in the same fashion as Carlin challenging the FCC back in his pre-cable, pre-satellite/Internet radio days, with example after example of the statute’s logical conclusions:

• Texas physicians and medical clinics can’t advertise that they accept workers’ compensation patients.

• Lawyers cannot use the phrase “Board Certified in Workers’ Compensation Law by the Texas Board of Legal Specialization” (which Gibson is, by the way).

• Legal professionals would be hard-pressed to conduct seminars on the latest decisions by the “Texas Workers’ Compensation Commission” or criticize a ruling by a “Texas” court on a “Workers’ Compensation” case.

• Candidates for public office cannot discuss in campaign literature or speeches the needs for reforming the “Texas Workers’ Compensation” system.

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