Warning in America

The other day I saw a warning on a restroom towel dispenser. It warned that putting your head in the towel loop could result in personal injury or death. I wondered, exactly who is this warning directed towards? What person would actually hang himself in a towel loop if it weren't for this warning?

I ask myself the same thing when I see regulators placing all sorts of restrictions and requirements on lawyer advertising. Take for example the mandatory warning that some states require attorneys to put in their advertising: “The hiring of a lawyer is an important decision and should not be based solely on advertising.”

I suspect that, like the bathroom warning, this warning doesn’t apply to any real people. People are simply not that stupid. And if they were, they wouldn’t read or heed these warnings anyway.

When it comes to regulating lawyer ads, Bates v. Arizona set the standard decades ago: Commercial speech may be regulated to advance a legitimate governmental interest as long as that regulation is not more extensive than is necessary to serve that interest. I suspect that the requirement that lawyers warn people that they shouldn’t rely solely on an ad in hiring a lawyer would not pass the Bates “necessary” test. Without proof that people actually engage in the warned against activity, the warning itself cannot be deemed to be “necessary.” 

So like the bathroom towel dispenser warning, this is just another warning directed at a clueless, but non-existent audience.