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Avvo Says Attorney|Ad Page is Free Speech

SAN FRANCISCO (CN) - Considering the anti-SLAPP statute and the contours of protected First Amendment speech, a federal judge on Thursday heard arguments in a class action accusing Avvo of misappropriating attorneys' names and likenesses.

Seattle-based Avvo obtains lawyers' information from public records, posts it online and then charges other lawyers for advertising on the page. Lead plaintiff Aaron Darsky, a California attorney, claims that these practices constitute unfair competition and violate California business law.

At Thursday's hearing, Avvo moved to strike under California's anti-SLAPP statute, which is aimed at preventing lawsuits intended to maliciously burden a party with the cost of a legal defense.

The plaintiffs moved for a preliminary injunction against Avvo.

U.S. District Judge Haywood Gilliam first asked the attorneys to argue as to whether California's anti-SLAPP statute should apply to the case, since Avvo's base of Washington state has no such statute.

Arguing for the plaintiffs, Roy Katriel said that it should not since "a defendant from outside of California with no presence in California" should not ask the state to extend the privilege of litigation that it does to its citizens.

"What we have here is a defendant who by its own admission has no relationship to California," Katriel said, adding that just because his client brought suit in California does not give Avvo access to the anti-SLAPP statute.

When Gilliam pointed out that it was relevant to consider where the speech at issue was transmitted to, Katriel said that since the speech was communicated on the Internet "it was communicated equally in every state."

"If you said in this circumstance that anti-SLAPP immunized Avvo, it would apply worldwide," Katriel told Gilliam.

Bruce Johnson, who argued for Avvo, contended that the company is not asking for "worldwide" application of the statute.

"All that we're asking is for California law to be applied in courts of California," Johnson said. "The proposed class action consists entirely of California lawyers, and plaintiff alleges that all causes of action arose within this judicial district."

Gilliam then turned to the First Amendment question of whether the speech on Avvo's site is constitutionally protected.

Katriel argued that Avvo's content is commercial speech and is therefore not constitutionally protected, because any attorney who advertises on the site is subject to having their advertisement regulated by the California state bar.

But Gilliam said it seemed "indisputable" that Avvo's web profiles contain "a combination of commercial and non-commercial elements."

"The reporting and re-reporting of public information about Mr. Darsky seems to be within the non-commercial speech bucket," Gilliam said

Johnson said, "I don't think anyone disputes the fact that the section [of Avvo] called 'advertising' is advertising."

He added, "We're talking about what's an online legal directory, and that's fully protected speech. Mere proximity to advertising does not transform a fully protected statement into advertising."

But Gilliam pointed out that Johnson's argument failed to address "the underlying economic motive of the speaker."

"It seems at least arguable that Avvo's motive is thoroughly commercial," the judge said. "This is not a nonprofit enterprise of making information available from state bar websites. The goal is to create profiles and place ads on the profiles and reap economic benefit."

Gilliam did not indicate when he would rule.

Katriel practices in La Jolla, California.

Johnson is with Davis Wright in Seattle.

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