On June 9, 2009, New York solo and Simple Justice blogger Scott Greenfield won a unanimous, landmark ruling from the the New York Court of Appeals in Stern v. Bluestone, which ruled that unsolicited, informational faxes distributed by solo Andrew Lavoot Bluestone on legal malpractice issues do not violate the Telephone_Consumer_Protection_Act_of_1991 or the Junk Fax Protection Act of 2005. The court's decision spares Greenfield's client $21,000 in damages. But more importantly, by holding that communications such as newsletters which convey substantive information are not advertising, the decision lends credence to the position that blogs (which also convey substantive information) should not be subject to bar regulations on advertising. For vindicating this important principle - and helping a fellow solo, Scott Greenfield is our pick for this installment of Shingular Sensations.
In the interview below, Scott shares the back story of the appeal, including his strategy for overturning two adverse lower court rulings and how the blogosphere helped play a role in the victory.
1. Describe how and at what stage of the proceeding you became involved in this case.
Andrew Lavoott Bluestone came to me when the action was commenced, recognizing that it was wise to seek a detached perspective on the proceeding. We work together, with Andrew doing much of the heavy lifting. At the first level appeal, Andrew prepared the brief and I handled the oral argument, where we were met with some judges who demonstrated little familiarity with First Amendment issues, and even less sympathy toward constitutional rights. At the Court of Appeals, Andrew again prepared the brief, which I then edited to conform to the arguments I intended to raise. While it was killing Andrew, as an attorney, to place his case in someone else's hands, he realized that he couldn't represent himself and thus placed himself in my hands.
2. What kind of experience did you have with this specific issues or in appellate matters prior to taking the case?
I've been enjoying the First Amendment my whole life, but it's never been the primary focus of my practice. Rather, it was my background and experience in trial and appellate work that Andrew sought. The substantive area of law was not difficult to learn, but I brought the skills developed over 25 years of practicing law to the well of the courtroom. It's far, far easier to learn substantive law than lawyering, and I was brought into the case because of my background as a litigator rather than as a First Amendment lawyer.
3. As you may know, since the passage of the Telecom Protection Act of 1991, filing suit against distributors of "junk faxes" has become a bit of a cottage industry - ( for example, see www.keytlaw.com/faxes/junkfaxlaw.htm or www.junkfaxes.org/news/faxcom_cb_suit.html.) Given the many suits where litigants successfully prevailed against junk faxers, how did you assess your client's chances in this matter? What did you believe distinguished this case from others?
The junk fax cases suffer from a few internal problems; zealously defending often involves a greater cost than settling or acquiescing, so many litigants are unwilling to fight, or fight hard and competently. Also, many of these cases involved defendants who deserved to lose. The problem with junk faxes is real, and the law prohibiting them serves a very important purpose.
However, Andrew's case was markedly different from many others, in that there was nothing about his faxes that fell within the law. His New York Attorney Malpractice Report was by no means an advertisement, except by the most cynical manipulation of reality. Ironically, some lawyers asked to be removed from the fax list, and they were. Far more called to be added to the list, seeking his Report. Go figure.
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