Bates v. State Bar of Arizona

A year earlier, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court had decided its first landmark commercial speech case. Justice Blackmun, who also wrote the opinion of the Court in the earlier case, had declared unconstitutional a statute barring advertising of prescription drug prices. The commercial speech doctrine provides that advertisements which convey valuable information to consumers merit some First Amendment protection. Such protection does not extend, however, to advertising that is false or misleading; unlike ordinary speech, commercial speech is subject to content regulation.

Bates extended the ruling in Virginia State Board of Pharmacy to attorney advertising. As in the earlier case, the First Amendment protection afforded was limited.

In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way . . . Advertising that is false, deceptive, or misleading of course is subject to restraint . . . In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising . . . As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising.

The Court approved a "time, place, and manner" restriction the very next year in Ohralik v. Ohio State Bar Association (1978), in which a policy of barring all in-person solicitation by lawyers was upheld.

The concern expressed by the Arizona State Bar Association in Bates was that attorney advertising would have an adverse effect on professionalism. It was the same concern expressed by the Virginia Bar Association in Goldfarb v. Virginia State Bar (1975) two years earlier, when the Supreme Court prohibited the bar association from mandating a fee schedule. Just as Chief Justice Burger dismissed such concerns in Goldfarb, so Blackmun dismissed them in Bates. It was anachronistic to assert that lawyers are somehow above the "trade," he wrote, when the ban on advertising was apparently based on an antique British rule of etiquette and not on any ethical considerations. When bar associations object that price competition among lawyers will cut into the quality of lawyering, they are advancing a disingenuous argument in an attempt to perpetuate the comprehensive self-regulation the profession had enjoyed for so long. With Bates, however, consumers were given access to important information that would help them to decide which lawyers were worth their money.