Petitioner
Florida State Bar
Respondent
Went For It, Inc., a lawyer referral service
Petitioner's Claim
A regulation of the Florida bar prohibiting direct-mail advertising targetingvictims of accidents is an unconstitutional suppression of speech.
Chief Lawyer for Petitioner
Bruce S. Rogow
Chief Lawyer for Respondent
Barry Scott Richard
Justices for the Court
Stephen Breyer, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
21 June 1995
Decision
Within certain limits, states may regulate advertising by lawyers.
Significance
Decision could signal a reversal of the trend during the 1980s and 1990s toward extension of First Amendment protection to commercial speech.
The Facts of the Case
In 1990 the Florida bar adopted a rule limiting the scope of direct-mail solicitation of business by attorneys. In cases of "personal injury," "wrongful death," "accident," or "disaster," lawyers were prohibited from sending targeted advertisements to victims or their relatives for a 30 day period followingthe occurrence of such events. The rule was created after the bar conducteda two-year study of the effect of lawyer advertising on public opinion, whichconcluded in 1989. According to the study, the public found such advertisinghighly offensive, and the rule was enacted in an attempt to improve the reputation of lawyers among the general public.
Went For It, Inc. was a lawyer referral service owned by G. Stewart McHenry.McHenry filed suit in U.S. District Court, claiming the 30-day prohibition ontargeted direct-mail solicitation was an unconstitutional limit on speech. He claimed that he routinely sent such targeted solicitations in order to refer interested parties to lawyers who participated in his referral service andthat he wanted to continue to do so.
Both Went for It and the Florida bar moved for summary judgment, and the district court referred the matter to a magistrate judge. The judge recommended the rule be upheld as constitutional, as a narrowly drawn rule that promoted asubstantial government interest in protecting the privacy and tranquility ofthose who might receive and be offended by such advertisements. The districtcourt, however, granted summary judgment to Went For It, in deference to thedecision in Bates v. State Bar of Arizona (1977), which had struck down the prohibition of advertising the prices charged for certain legal services. The defendants appealed, and the higher court affirmed the judgment, again relying on Bates and Shapero, although it noted that it was "disturbed that Bates and its progeny require the decision." The Courtgranted certiorari in order to decide if the 30-day rule was a constitutionally permissible regulation of speech.
Commercial Speech and the First Amendment
The Court has traditionally construed the First Amendment as primarily protecting political speech, with "commercial" speech enjoying less protection. Aslate as 1942 the Court ruled in Valentine v. Chrestensen, a case involving prohibition of the distribution of handbills on a public street, that the First Amendment does not prohibit government regulation of "purely commercial advertising." This holding was followed until the Court struck down a banon the advertising of prescription drug prices in Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council, Inc. (1976). The following year the Court moved toward greater protection of commercial speech, striking down a ban on advertising the prices of certain legal services in Batesv. Arizona.
The scope of protection of commercial speech was clarified in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), in which the Court laid out a three-pronged test regarding the permissibility of government regulation of such speech: (1) the rule must be in support of a substantial government interest; (2) it must materially advance that interest; and (3) it must be no broader than necessary to accomplish its purpose. After Central Hudson the Court struck down bans on lawyer advertising in Zauder v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) and Shapero v. Kentucky Bar Association (1988). In Shapero a complete ban on direct-mail advertising by lawyers was found not to be an invasion of privacy and was struck down. The Court has also afforded protection to commercial speech in other cases not involving lawyers.
The Majority Decision
A bare 5-4 majority found that the rule was in fact permissible and reversedthe ruling of the court of appeals, although both the majority and minority found the three-pronged test of Central Hudson applicable to the case at hand. The majority accepted the petitioner's claim of damage to the reputation of the bar by targeted direct-mail solicitations and found that the firstrequirement, a substantial state interest, was easily met by the petitioner,and several cases were quoted in which the Court found a substantial state interest in protecting the peace and privacy of citizens, indicating it did not find with the minority that the privacy implications of Shapero werevalid as applied to this case.
In the opinion of the majority, the second prong of the test, that the rule must materially advance that interest, was met as well. The study results submitted by the petitioner well documented the adverse effects on public opinionof the solicitations, and the majority found them to be exhaustive and conclusive, rejecting the respondent's claim that the study had "no factual basis." It also rejected the minority's attack on the study's validity due to its lack of supporting documentation regarding methodology and other matters.
According to the majority, the petitioner's rule also met Central Hudson's final requirement that the regulation be no broader than necessary to accomplish the desired goal. It rejected the respondent's claim that the rule was overbroad because it did not distinguish between major and minor traumas citizens might experience and that such a rule might prevent citizens from quickly learning what their legal options were in such situations. Justice O'Connor noted many other avenues by which citizens needing access to a lawyer could find one, including television and radio advertisements, billboards, non-targeted direct-mail advertisements, and yellow pages listings in telephone directories, and further noted that the prohibition was for a 30-day period only.
The Dissent
The minority opinion, written by Justice Kennedy, began by noting the inconsistency of barring lawyers from contacting a potential client in such a mannerwhen lawyers representing other parties in cases or potential cases were notsimilarly barred from contacting that client. The minority also believed that the privacy interest rejected in Shapero also precluded regulation in this case, noting that "offensiveness" did not constitute grounds for the suppression of speech.
In the minority view, the petitioner's rule also failed all three parts of the Central Hudson test: The first part, a substantial state interest, was not present. The state's interest in protecting the privacy and tranquility of victims of trauma did not extend as far as prohibition of speech: "It isonly where an audience is captive that we will assure its protection from some offensive speech." He quoted the finding in Shapero that "a letter,like a printed advertisement . . . can be put in a drawer . . . ignored, ordiscarded."
The petitioner's claim also did not meet the second requirement, that of materially advancing the interest at hand, according to the minority, who did notaccept the study as proof, stating that it contained no "explanation of methodology":
The petitioner's rule also failed the last requirement, that the regulation be no broader than necessary, in that it was a flat ban without regard to theseverity of the trauma the victim experienced, while "criminal law routinelydistinguishes degrees of bodily harm." Further, those most in need of services, those who "because of lack of education, linguistic ability, or familiarity with the legal system are unable to seek out legal services" are the ones most harmed by such a rule.
The dissent concluded by noting that the problem the Florida bar sought to address was largely "self-policing," since a person is unlikely to hire someonewho offends them. And if such solicitations "reveal the social costs of thetort system as a whole," then energies should be put into reforming the system rather than suppressing that which exposes its weaknesses.
Impact
Florida Bar v. Went For It, Inc. was a reversal of the direction the Court had taken since the 1970s, that of extending further protection to commercial speech. The 5-4 decision of the Court left it unclear, however, how theCourt will view future controversies regarding commercial speech, since onlyone justice viewing even a minor point differently in a different set of facts could conceivably result in a different outcome. In a Villanova Law Review article highly critical of the Florida Bar decision, Tara L. Lattomus claimed that "In the near future, attorneys can expect stricter regulation on advertising and their First Amendment rights relating to commercialspeech."
Related Cases
Florida State Bar
Respondent
Went For It, Inc., a lawyer referral service
Petitioner's Claim
A regulation of the Florida bar prohibiting direct-mail advertising targetingvictims of accidents is an unconstitutional suppression of speech.
Chief Lawyer for Petitioner
Bruce S. Rogow
Chief Lawyer for Respondent
Barry Scott Richard
Justices for the Court
Stephen Breyer, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
21 June 1995
Decision
Within certain limits, states may regulate advertising by lawyers.
Significance
Decision could signal a reversal of the trend during the 1980s and 1990s toward extension of First Amendment protection to commercial speech.
The Facts of the Case
In 1990 the Florida bar adopted a rule limiting the scope of direct-mail solicitation of business by attorneys. In cases of "personal injury," "wrongful death," "accident," or "disaster," lawyers were prohibited from sending targeted advertisements to victims or their relatives for a 30 day period followingthe occurrence of such events. The rule was created after the bar conducteda two-year study of the effect of lawyer advertising on public opinion, whichconcluded in 1989. According to the study, the public found such advertisinghighly offensive, and the rule was enacted in an attempt to improve the reputation of lawyers among the general public.
Went For It, Inc. was a lawyer referral service owned by G. Stewart McHenry.McHenry filed suit in U.S. District Court, claiming the 30-day prohibition ontargeted direct-mail solicitation was an unconstitutional limit on speech. He claimed that he routinely sent such targeted solicitations in order to refer interested parties to lawyers who participated in his referral service andthat he wanted to continue to do so.
Both Went for It and the Florida bar moved for summary judgment, and the district court referred the matter to a magistrate judge. The judge recommended the rule be upheld as constitutional, as a narrowly drawn rule that promoted asubstantial government interest in protecting the privacy and tranquility ofthose who might receive and be offended by such advertisements. The districtcourt, however, granted summary judgment to Went For It, in deference to thedecision in Bates v. State Bar of Arizona (1977), which had struck down the prohibition of advertising the prices charged for certain legal services. The defendants appealed, and the higher court affirmed the judgment, again relying on Bates and Shapero, although it noted that it was "disturbed that Bates and its progeny require the decision." The Courtgranted certiorari in order to decide if the 30-day rule was a constitutionally permissible regulation of speech.
Commercial Speech and the First Amendment
The Court has traditionally construed the First Amendment as primarily protecting political speech, with "commercial" speech enjoying less protection. Aslate as 1942 the Court ruled in Valentine v. Chrestensen, a case involving prohibition of the distribution of handbills on a public street, that the First Amendment does not prohibit government regulation of "purely commercial advertising." This holding was followed until the Court struck down a banon the advertising of prescription drug prices in Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council, Inc. (1976). The following year the Court moved toward greater protection of commercial speech, striking down a ban on advertising the prices of certain legal services in Batesv. Arizona.
The scope of protection of commercial speech was clarified in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), in which the Court laid out a three-pronged test regarding the permissibility of government regulation of such speech: (1) the rule must be in support of a substantial government interest; (2) it must materially advance that interest; and (3) it must be no broader than necessary to accomplish its purpose. After Central Hudson the Court struck down bans on lawyer advertising in Zauder v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) and Shapero v. Kentucky Bar Association (1988). In Shapero a complete ban on direct-mail advertising by lawyers was found not to be an invasion of privacy and was struck down. The Court has also afforded protection to commercial speech in other cases not involving lawyers.
The Majority Decision
A bare 5-4 majority found that the rule was in fact permissible and reversedthe ruling of the court of appeals, although both the majority and minority found the three-pronged test of Central Hudson applicable to the case at hand. The majority accepted the petitioner's claim of damage to the reputation of the bar by targeted direct-mail solicitations and found that the firstrequirement, a substantial state interest, was easily met by the petitioner,and several cases were quoted in which the Court found a substantial state interest in protecting the peace and privacy of citizens, indicating it did not find with the minority that the privacy implications of Shapero werevalid as applied to this case.
In the opinion of the majority, the second prong of the test, that the rule must materially advance that interest, was met as well. The study results submitted by the petitioner well documented the adverse effects on public opinionof the solicitations, and the majority found them to be exhaustive and conclusive, rejecting the respondent's claim that the study had "no factual basis." It also rejected the minority's attack on the study's validity due to its lack of supporting documentation regarding methodology and other matters.
According to the majority, the petitioner's rule also met Central Hudson's final requirement that the regulation be no broader than necessary to accomplish the desired goal. It rejected the respondent's claim that the rule was overbroad because it did not distinguish between major and minor traumas citizens might experience and that such a rule might prevent citizens from quickly learning what their legal options were in such situations. Justice O'Connor noted many other avenues by which citizens needing access to a lawyer could find one, including television and radio advertisements, billboards, non-targeted direct-mail advertisements, and yellow pages listings in telephone directories, and further noted that the prohibition was for a 30-day period only.
The Dissent
The minority opinion, written by Justice Kennedy, began by noting the inconsistency of barring lawyers from contacting a potential client in such a mannerwhen lawyers representing other parties in cases or potential cases were notsimilarly barred from contacting that client. The minority also believed that the privacy interest rejected in Shapero also precluded regulation in this case, noting that "offensiveness" did not constitute grounds for the suppression of speech.
In the minority view, the petitioner's rule also failed all three parts of the Central Hudson test: The first part, a substantial state interest, was not present. The state's interest in protecting the privacy and tranquility of victims of trauma did not extend as far as prohibition of speech: "It isonly where an audience is captive that we will assure its protection from some offensive speech." He quoted the finding in Shapero that "a letter,like a printed advertisement . . . can be put in a drawer . . . ignored, ordiscarded."
The petitioner's claim also did not meet the second requirement, that of materially advancing the interest at hand, according to the minority, who did notaccept the study as proof, stating that it contained no "explanation of methodology":
There is no description of the statistical universe orscientific framework that permits any productive use of the information the so-called Summary of Record contains . . . Our cases require something more than a few pages of self-serving and unsupported statements by the State to demonstrate that a regulation directly and materially advances the elimination of a real harm when the State seeks to suppress truthful and nondeceptive speech.
The petitioner's rule also failed the last requirement, that the regulation be no broader than necessary, in that it was a flat ban without regard to theseverity of the trauma the victim experienced, while "criminal law routinelydistinguishes degrees of bodily harm." Further, those most in need of services, those who "because of lack of education, linguistic ability, or familiarity with the legal system are unable to seek out legal services" are the ones most harmed by such a rule.
The dissent concluded by noting that the problem the Florida bar sought to address was largely "self-policing," since a person is unlikely to hire someonewho offends them. And if such solicitations "reveal the social costs of thetort system as a whole," then energies should be put into reforming the system rather than suppressing that which exposes its weaknesses.
Impact
Florida Bar v. Went For It, Inc. was a reversal of the direction the Court had taken since the 1970s, that of extending further protection to commercial speech. The 5-4 decision of the Court left it unclear, however, how theCourt will view future controversies regarding commercial speech, since onlyone justice viewing even a minor point differently in a different set of facts could conceivably result in a different outcome. In a Villanova Law Review article highly critical of the Florida Bar decision, Tara L. Lattomus claimed that "In the near future, attorneys can expect stricter regulation on advertising and their First Amendment rights relating to commercialspeech."
Related Cases
- Valentine v. Chrestensen, 316 U.S. 52 (1942).
- Bigelow v. Virginia, 421 U.S. 809 (1975).
- Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- In re Primus, 436 U.S. 412 (1978).
- Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
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