Second Circuit Strikes Down Restrictions on Legal Advertising

Ted Rao, Albany Government Law Review Member

On March 12, the Second Circuit affirmed a lower court’s decision that certain restrictions on legal advertising were unconstitutional.[1]  In doing so, the court rejected rules governing the legal profession promulgated by New York’s Appellate Division that were originally slated to go into effect on February 1, 2007.  The court also upheld rules requiring that attorneys wait at least thirty days before soliciting accident victims as potential clients in personal injury claims.[2]

 The court’s opinion was authored by Senior Judge and former Yale Law School Dean, Guido Calabresi, joined by Judge John Walker Jr.  Prior to being nominated to the United States Supreme Court, Justice Sonia Sotomayor also served on the panel that heard oral arguments in the case.[3]

The Appellate Division’s new rules[4] restricted, among other things, “testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.”[5]

Plaintiffs were personal injury attorney James Alexander, his Rochester and Syracuse-based law firm Alexander and Catalano, and Public Citizen, a non-profit consumer advocacy organization originally founded by Ralph Nader.[6]  The Court described the firm’s advertisements as such:

[T]he firm’s commercials often contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm’s name. Firm advertisements also featured dramatizations, comical scenes, and special effects—for instance, depicting Alexander and his partner as giants towering above local buildings, running to a client’s house so quickly they appear as blurs, and providing legal assistance to space aliens. Another advertisement depicted a judge in the courtroom and stated that the judge is there ‘to make sure [the trial] is fair.’ The firm’s ads also frequently included the firm’s slogan, ‘heavy hitters,’ and phrases like ‘think big’ and ‘we’ll give you a big helping hand.’[7]

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United States Court of Appeals Limits First Amendment Rights: Public School Teacher Cannot Pursue Retaliation Claim Against School

Lauren Palmer, Government Law Review member

          On January 27, 2010, the U.S. Court of Appeals, Second Circuit, held that another type of speech is not protected under the First Amendment.  Public employees’ speech made “pursuant to . . . official duties” is not a protected speech.[1]  The case, Weintraub v. Board of Education, involved a teacher who was denied the opportunity to pursue a retaliation claim against a school.[2]  The U.S. Court of Appeals found that filing a grievance was pursuant to one of his official duties as a public school teacher, maintaining discipline, and thus was not protected speech.[3]  This holding rests solely on the court’s broad interpretation of a recent case, Garcetti v. Ceballos, [4]  and a narrow interpretation of public employees’ First Amendment protections.[5]  In this author’s opinion, the dissent was correct–a more appropriate reading would be a less expansive one.  The definition of speech made “pursuant to . . . official duties” should be read more narrowly, as this would preserve the “delicate balancing” required by the First Amendment freedom of speech for public employees.[6]


          Petitioner-Appellant David H. Weintraub, a former elementary public school teacher, sued the Board of Education of the City of New York for wrongful termination.[7]  He claimed that Respondent-Appellees violated his First Amendment rights by retaliating against him, and ultimately fired him, after he filed a formal grievance with his union representative.[8]  Weintraub filed the grievance to challenge the school administration’s refusal to discipline a student who threw a book at him during class on multiple occasions.[9]  He felt it was the matter was of public concern; that it was “not an environment a teacher would want to go to where a child is allowed to throw a book at teachers.”[10]  Weintraub alleged that the school officials retaliated through acts of intimidation and harassment against him because of his complaint.[11]  He also alleged that after his complaint, he received “unfounded negative performance reviews and evaluations,” wrongful criminal accusations, “and was ultimately terminated.”[12] 

          The Eastern District Court, in an April 28, 2006 opinion, originally held that Weintraub’s First Amendment claim was valid because the content of the speech related to a public concern regardless of his status as a teacher and thus his complaint was protected by his First Amendment rights.[13]  Over a year later, on May 29, 2007, the district court reconsidered the plaintiff’s First Amendment claim in light of the subsequent Garcetti decision which raised new issues and redefined protected and non-protected speech in schools.[14]   

Continue reading “United States Court of Appeals Limits First Amendment Rights: Public School Teacher Cannot Pursue Retaliation Claim Against School”