515 U.S. 618 (1995), 94-226, Florida Bar v. Went For It, Inc.

Docket Nº:Case No. 94-226
Citation:515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541, 63 U.S.L.W. 4644
Party Name:FLORIDA BAR v. WENT FOR IT, INC., et al.
Case Date:June 21, 1995
Court:United States Supreme Court
 
FREE EXCERPT

Page 618

515 U.S. 618 (1995)

115 S.Ct. 2371, 132 L.Ed.2d 541, 63 U.S.L.W. 4644

FLORIDA BAR

v.

WENT FOR IT, INC., et al.

Case No. 94-226

United States Supreme Court

June 21, 1995

Argued January 11, 1995

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Syllabus

Respondent lawyer referral service and an individual Florida attorney filed this action for declaratory and injunctive relief challenging, as violative of the First and Fourteenth Amendments, Florida Bar (Bar) Rules prohibiting personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. The District Court entered summary judgment for the plaintiffs, relying on Bates v. State Bar of Ariz., 433 U.S. 350, and subsequent cases. The Eleventh Circuit affirmed on similar grounds.

Held:

In the circumstances presented here, the Bar Rules do not violate the First and Fourteenth Amendments. Pp. 622-635.

(a) Bates and its progeny establish that lawyer advertising is commercial speech and, as such, is accorded only a limited measure of First Amendment protection. Under the "intermediate" scrutiny framework set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, a restriction on commercial speech that, like the advertising at issue, does not concern unlawful activity and is not misleading is permissible if the government: (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is " 'narrowly drawn,' " id., at 564-565. Pp. 622-624.

(b) The Bar's 30-day ban on targeted direct-mail solicitation withstands Central Hudson scrutiny. First, the Bar has substantial interest both in protecting the privacy and tranquility of personal injury victims and their loved ones against invasive, unsolicited contact by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. Second, the fact that the harms targeted by the ban are quite real is demonstrated by a Bar study, effectively unrebutted by respondents below, that contains extensive statistical and anecdotal data suggesting that the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession. Edenfield v. Fane, 507 U.S. 761, 771-772; Shapero v. Kentucky Bar Assn., 486 U.S. 466, 475-476; and Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72, distinguished. Third, the ban's scope is reasonably well

Page 619

tailored to its stated objectives. Moreover, its duration is limited to a brief 30-day period, and there are many other ways for injured Floridians to learn about the availability of legal representation during that time. Pp. 624-634.

21 F.3d 1038, reversed.

O' Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Thomas, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 635.

Barry Scott Richard argued the cause for petitioner. With him on the briefs were William F. Blews and John A. DeVault III.

Bruce S. Rogow argued the cause for respondents. With him on the briefs were Beverly A. Pohl and Howell L. Ferguson. [*]

Page 620

Justice O'Connor delivered the opinion of the Court.

Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not.

I

In 1989, the Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising on public opinion. After conducting hearings, commissioning surveys, and reviewing extensive public commentary, the Bar determined that several changes to its advertising rules were in order. In late 1990, the Florida Supreme Court adopted the Bar's proposed amendments with some modifications. The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar— Advertising Issues, 571 So.2d 451 (Fla. 1990). Two of these amendments are at issue in this case. Rule 4-7.4(b)(1) provides that "[a] lawyer shall not send, or knowingly permit to be sent, . . . a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication." Rule 4-7.8(a) states that "[a] lawyer shall not accept referrals from a lawyer referral service unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer." Together, these Rules create a brief 30-day blackout period after an accident during which lawyers may not, directly or

Page 621

indirectly, single out accident victims or their relatives in order to solicit their business.

In March 1992, G. Stewart McHenry and his wholly owned lawyer referral service, Went For It, Inc., filed this action for declaratory and injunctive relief in the United States District Court for the Middle District of Florida challenging Rules 4-7.4(b)(1) and 4-7.8(a) as violative of the First and Fourteenth Amendments to the Constitution. McHenry alleged that he routinely sent targeted solicitations to accident victims or their survivors within 30 days after accidents and that he wished to continue doing so in the future. Went For It, Inc., represented that it wished to contact accident victims or their survivors within 30 days of accidents and to refer potential clients to participating Florida lawyers. In October 1992, McHenry was disbarred for reasons unrelated to this suit, Florida Bar v. McHenry, 605 So.2d 459 (Fla.1992). Another Florida lawyer, John T. Blakely, was substituted in his stead.

The District Court referred the parties' competing summary judgment motions to a Magistrate Judge, who concluded that the Bar had substantial government interests, predicated on a concern for professionalism, both in protecting the personal privacy and tranquility of recent accident victims and their relatives and in ensuring that these individuals do not fall prey to undue influence or overreaching. Citing the Bar's extensive study, the Magistrate Judge found that the Rules directly serve those interests and sweep no further than reasonably necessary. The Magistrate recommended that the District Court grant the Bar's motion for summary judgment on the ground that the Rules pass constitutional muster.

The District Court rejected the Magistrate Judge's report and recommendations and entered summary judgment for the plaintiffs, 808 F.Supp. 1543 (MD Fla. 1992), relying on Bates v. State Bar of Ariz., 433 U.S. 350 (1977), and subsequent

Page 622

cases. The Eleventh Circuit affirmed on similar grounds, McHenry v. Florida Bar, 21 F.3d 1038 (1994). The panel noted, in its conclusion, that it was "disturbed that Bates and its progeny require the decision" that it reached, 21 F.3d, at 1045. We granted certiorari, 512 U.S. 1289(1994), and now reverse.

II

A

Constitutional protection for attorney advertising, and for commercial speech generally, is of recent vintage. Until the mid-1970's, we adhered to the broad rule laid out in Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), that, while the First Amendment guards against government restriction of speech in most contexts, "the Constitution imposes no such restraint on government as respects purely commercial advertising." In 1976, the Court changed course. In Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, we invalidated a state statute barring pharmacists from advertising prescription drug prices. At issue was speech that involved the idea that " 'I will sell you the X prescription drug at the Y price.' " Id., at 761. Striking the ban as unconstitutional, we rejected the argument that such speech "is so removed from 'any exposition of ideas,' and from 'truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' that it lacks all protection." Id., at 762 (citations omitted).

In Virginia Bd., the Court limited its holding to advertising by pharmacists, noting that "[p]hysicians and lawyers . . . do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." Id., at 773, n. 25 (emphasis in original). One year later, however, the Court applied the Virginia Bd. principles to invalidate a state rule prohibiting lawyers from advertising in newspapers

Page 623

and other media. In Bates v. State Bar of Arizona, supra, the Court struck a ban on price advertising for what it deemed "routine" legal services: "the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like." 433 U.S., at 372. Expressing confidence that legal advertising would only be practicable for such simple, standardized services, the Court rejected the State's proffered justifications for regulation.

Nearly two decades of cases have built upon the foundation laid by Bates. It is now well established that lawyer advertising is...

To continue reading

FREE SIGN UP