Inc. Florida Bar v. Went For It

The minority opinion, written by Justice Kennedy, began by noting the inconsistency of barring lawyers from contacting a potential client in such a manner when lawyers representing other parties in cases or potential cases were not similarly 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 is only 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, or discarded."

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 not accept the study as proof, stating that it contained no "explanation of methodology":

There is no description of the statistical universe or scientific 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 the severity of the trauma the victim experienced, while "criminal law routinely distinguishes 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 someone who offends them. And if such solicitations "reveal the social costs of the tort system as a whole," then energies should be put into reforming the system rather than suppressing that which exposes its weaknesses.