First Amendment

Avvo has First Amendment right to publish lawyer listings, Chicago federal court rules

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Avvo, an online attorney directory, does not violate an Illinois law that bars the use of someone’s identity for commercial purposes without permission, a federal judge there ruled Monday.

The listings shouldn’t be considered commercial speech, U.S. District Court Judge Robert W. Gettleman wrote in his order (PDF) dismissing the class action lawsuit, the Cook County Record reports. Instead, the site is like a newspaper or magazine or the Yellow Pages, in which advertisements can be placed and which are protected by the First Amendment.

“The court agrees with defendant that to hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field,” Gettleman wrote in the order.

The case was initially filed on behalf of Chicago lawyer Moria Bernstein, although she was replaced as lead plaintiff by John Vrdolyak in May, the Cook County Record reported.

In February, the plaintiff’s attorney Thomas Zimmerman, told the ABA Journal that Avvo sells advertising to competing lawyers utilizing the “likeness” of an attorney, with or without a photograph, that is established on an Avvo profile page. The profile lists the attorney’s name and professional credentials without the attorney’s permission, and then competitors pay to put their own ads on the attorney’s Avvo page, Zimmerman said. “In order to stop that, Avvo requires that you pay them a fee.”

Plaintiffs argued that their claim against Avvo was not unlike another Illinois’ Right of Publicity Act lawsuit, where the court found that the statute was violated when the Jewel supermarket chain placed an advertisement honoring the former Chicago Bulls player Michael Jordan’s induction into the Basketball Hall of Fame in a Sports Illustrated commemorative issue about the induction, the Cook County record reports. In that case, the Chicago-based 7th U.S. Circuit Court of Appeals found that the ad was commercial speech subject to reduced First Amendment protection.

However, “Jewel’s ad did not convert the entire commemorative issue into commercial speech. Nor do the Sponsored Listings turn the entire attorney directory into commercial speech,” Gettleman’s Sept. 12 order states. “Consequently, the court concludes that defendant’s publications are fully protected by the First Amendment.”

A similar lawsuit filed against Avvo in federal court in San Francisco in 2015 was dropped in August after Avvo filed a motion to strike under California’s strategic lawsuit against public participation law, Lawsites by Robert Ambrogi reported at the time.

Updated Sept. 16 to note the dropped California suit.

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