It is no small thing that a federal judge had to tell the state’s presiding administrative judges that they flubbed the First Amendment when drafting new rules about attorney advertising in the State of New York. It’s always possible that the federal judge who ruled on the matter, Frederick Scullin Jr. of U.S. District Court in Syracuse, will himself get over-ruled, though it would be too bad.

The issue is lawyers advertising. Last year, the top judges of the four judicial districts across New York announced the end of the old days of attorney advertising, when attorneys could air television and radio, not to mention internet ads, pretty much as they wished, so long as the ad wasn’t fraudulent. The new rule stated that no attorney advertising could “rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel.”

The problem is that “techniques to obtain attention” are the hallmark of good advertising. This meant that an upstate personal injury firm like Alexander & Catalano, which won its suit challenging the restrictions, had to yank the ad in which its lawyers run so fast as to appear as blurs in an effort to reach a client. Footraces are not the basis by which lawyers are judged. But neither are a dozen other things likely to appear in even the blandest attorney ad.

We are inclined to agree with James Alexander, a partner at the firm, who suggested that the same rule prohibiting his ads would also prohibit any ad featuring a physically attractive lawyer or an appealing smile. Lawyers, of course, rarely smile in court, excepting that moment they ask the jury for a favor. The court system did give a reasonable explanation for the new rules. The twin motivations were to protect consumers from misleading statements and to do some public relations about the ambulance chasing persona that the public imputes to the entire profession.

Judge Scullin found that the state could have gone about trying to achieve this without a blanket ban on attention-drawing gimmicks. The limited First Amendment protections given to commercial speech trump the state’s clumsy effort to ban the ads, the court found. Over the last year state judges have devoted a lot of energy to getting a pay raise and regulating attorney advertising. The results have been limited. Better they should spend their time on tort reform — including just dismissing cases that are abusive. That would be worth something.