OCTOBER TERM, 1994
Syllabus
FLORIDA BAR
v. WENT FOR IT, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 94-226. Argued January 11, 1995-Decided June 21, 1995
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 Servo 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
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. De
Vault III.
Bruce S.
Rogow argued the cause for respondents.
With him on the briefs were
Beverly A. Pohl and
Howell L.
Ferguson. *
*Briefs of
amici curiae urging reversal were filed for
the Dade County Trial Lawyers Association et al. by
Robert D.
Peltz and
Robert G.
Vial; for the Academy of
Florida Trial Lawyers by C.
Rufus Pennington III; and for
the Association of Trial Lawyers of America by
Jeffrey Robert
White and
Larry S.
Stewart.
Briefs of
amici curiae urging affirmance were filed for
the Institute for Injury Reduction by
Larry E. Coben; for
the Media Institute et al. by
John J.
Walsh, Steven
G.
Brody, Mary Elizabeth Taylor, P. Cameron De Vore, and
David M. Hunsaker; and for Public Citizen by
David C.
Vladeck.
Briefs of amici curiae were filed for the Alabama State Bar
Association et al. by James L. Branton, Broox G. Holmes, Robert L.
Jones III, Miriam Cyrulnik, Frances A. Koncilja, Francisco R.
Angones, R. Franklin Balotti, Floyd Shapiro, Harold Turner Daniel,
Jr., David A. Decker, Nicholas V. Critelli, Jr., Hedo Zacherle,
Henry M. Coxe III, Stephen D. Wolnitzek, Marcia L. Proctor, W Scott
Welch III, Michael B. Martz, Robert J. Phillips, Grace D. Moran,
Benedict J. Pollio, William B. McGuire, Albert L. Bell, J. Rutledge
Young, Jr., John H. Gross, Harris A. Gilbert, and Steven Trost; for
the New York State Bar Association by G. Robert Witmer, Jr.; for
Hyatt Legal Services by Andrew Kohn; and for the Institute for
Access to Legal Services et al. by Bruce J. Ennis, Jr., Donald B.
Verrilli, Jr., and Nory Miller.
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
BarAdvertising 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
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
sub-
622
sequent 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 news-
623
papers 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 commercial speech and, as such, is accorded a measure of First
Amendment protection. See,
e. g., Shapero v.
Kentucky Bar
Assn., 486 U. S.
466, 472 (1988);
Zauderer v.
Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U. S. 626, 637
(1985);
In re R. M. J.,
455 U. S. 191, 199
(1982). Such First Amendment protection, of course, is not
absolute. We have always been careful to distinguish commercial
speech from speech at the First Amendment's core. "'[C]ommercial
speech [enjoys] a limited measure of protection, commensurate with
its subordinate position in the scale of First Amendment values,'
and is subject to 'modes of regulation that might be impermissible
in the realm of noncommercial expression.'''
Board of Trustees
of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 477
(1989), quoting
Ohralik v.
Ohio State Bar Assn.,
436 U. S. 447,
456 (1978). We have observed that" '[t]o require a parity of
constitutional protection for commercial and noncommercial speech
alike could invite dilution, simply by a leveling process, of the
force of the Amendment's guarantee with respect to the latter kind
of speech.''' 492 U. S., at 481, quoting
Ohralik, supra, at
456.
Mindful of these concerns, we engage in "intermediate" scrutiny
of restrictions on commercial speech, analyzing them under the
framework set forth in
Central Hudson Gas &
Elec.
Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980).
Under
Central Hudson, the government may
624
freely regulate commercial speech that concerns unlawful
activity or is misleading.
Id., at 563-564. Commercial
speech that falls into neither of those categories, like the
advertising at issue here, may be regulated if the government
satisfies a test consisting of three related prongs: First, the
government must assert a substantial interest in support of its
regulation; second, the government must demonstrate that the
restriction on commercial speech directly and materially advances
that interest; and third, the regulation must be " 'narrowly
drawn.'''
Id., at 564-565.
B
"Unlike rational basis review, the
Central Hudson
standard does not permit us to supplant the precise interests put
forward by the State with other suppositions,"
Edenfield v.
Fane, 507 U.
S. 761, 768 (1993). The Bar asserts that it has a substantial
interest in protecting the privacy and tranquility of personal
injury victims and their loved ones against intrusive, unsolicited
contact by lawyers. See Brief for Petitioner 8,25-27; 21 F. 3d, at
1043-1044.1 This interest obviously factors into the Bar's
paramount (and repeatedly professed) objective of curbing
activities that "negatively affec[t] the administration of
justice."
The Florida Bar:
Petition to Amend the Rules Regulating the Florida
BarAdvertising Issues, 571 So. 2d, at 455; see also Brief for
Petitioner 7, 14, 24; 21 F. 3d, at 1043 (describing Bar's effort
"to preserve the integrity of the legal profession").
1 At prior stages of this litigation, the Bar asserted a
different interest, in addition to that urged now, in protecting
people against undue influence and overreaching. See 21 F. 3d, at
1042-1043; cf.
Shapero v.
Kentucky Bar Assn.,
486 U. S. 466,
474-476 (1988);
Ohralik v.
Ohio State Bar Assn.,
436 U. S. 447,
462 (1978). Because the Bar does not press this interest before us,
we do not consider it. Of course, our precedents do not require the
Bar to point to more than one interest in support of its 30-day
restriction; a single substantial interest is sufficient to satisfy
Central Hudson's first prong. See
Rubin v.
Coors
Brewing Co., 514
U. S. 476, 485 (1995) (deeming only one of the government's
proffered interests "substantial").
625
Because direct-mail solicitations in the wake of accidents are
perceived by the public as intrusive, the Bar argues, the
reputation of the legal profession in the eyes of Floridians has
suffered commensurately. See Pet. for Cert. 14-15; Brief for
Petitioner 28-29. The regulation, then, is an effort to protect the
flagging reputations of Florida lawyers by preventing them from
engaging in conduct that, the Bar maintains, "'is universally
regarded as deplorable and beneath common decency because of its
intrusion upon the special vulnerability and private grief of
victims or their families.'" Brief for Petitioner 28, quoting
In
re Anis, 126 N. J. 448, 458, 599 A. 2d 1265, 1270 (1992).
We have little trouble crediting the Bar's interest as
substantial. On various occasions we have accepted the proposition
that "States have a compelling interest in the practice of
professions within their boundaries, and ... as part of their power
to protect the public health, safety, and other valid interests
they have broad power to establish standards for licensing
practitioners and regulating the practice of professions."
Goldfarb v.
Virginia State Bar, 421 U. S. 773, 792
(1975); see also
Ohralik, supra, at 460;
Cohen v.
Hurley, 366 U. S. 117, 124 (1961). Our precedents also leave
no room for doubt that "the protection of potential clients'
privacy is a substantial state interest." See
Edenfield,
supra, at 769. In other contexts, we have consistently
recognized that "[t]he State's interest in protecting the
well-being, tranquility, and privacy of the home is certainly of
the highest order in a free and civilized society."
Carey v.
Brown, 447 U.
S. 455,471 (1980). Indeed, we have noted that "a special
benefit of the privacy all citizens enjoy within their own walls,
which the State may legislate to protect, is an ability to avoid
intrusions."
Frisby v.
Schultz, 487 U. S. 474, 484485
(1988).
Under
Central Hudson's second prong, the State must
demonstrate that the challenged regulation "advances the
Government's interest 'in a direct and material way.'"
626
Rubin v.
Coors Brewing Co., 514 U. S. 476, 487
(1995), quoting
Edenfield, supra, at 767. That burden, we
have explained, "'is not satisfied by mere speculation or
conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate
them to a material degree.''' 514 U. S., at 487, quoting
Edenfield, supra, at 770-771. In
Edenfield, the Court
invalidated a Florida ban on in-person solicitation by certified
public accountants (CPA's). We observed that the State Board of
Accountancy had "present[ed] no studies that suggest personal
solicitation of prospective business clients by CPA's creates the
dangers of fraud, overreaching, or compromised independence that
the Board claims to fear." 507 U. S., at 771. Moreover, "[t]he
record [did] not disclose any anecdotal evidence, either from
Florida or another State, that validate[d] the Board's
suppositions."
Ibid. In fact, we concluded that the only
evidence in the record tended to "contradic[t], rather than
strengthe[n], the Board's submissions."
Id., at 772. Finding
nothing in the record to substantiate the State's allegations of
harm, we invalidated the regulation.
The direct-mail solicitation regulation before us does not
suffer from such infirmities. The Bar submitted a 106page summary
of its 2-year study of lawyer advertising and solicitation to the
District Court. That summary contains data-both statistical and
anecdotal-supporting the Bar's contentions 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. As of June 1989, lawyers mailed 700,000 direct
solicitations in Florida annually, 40% of which were aimed at
accident victims or their survivors. Summary of the Record in No.
74,987 (Fla.) on Petition to Amend the Rules Regulating Lawyer
Advertising (hereinafter Summary of Record), App. H, p. 2. A survey
of Florida adults commissioned by the Bar indicated that Floridians
"have negative feelings about
627
those attorneys who use direct mail advertising." Magid
Associates, Attitudes & Opinions Toward Direct Mail Advertising
by Attorneys (Dec. 1987), Summary of Record, App. C(4), p. 6.
Fifty-four percent of the general population surveyed said that
contacting persons concerning accidents or similar events is a
violation of privacy.
Id., at 7. A random sampling of
persons who received direct-mail advertising from lawyers in 1987
revealed that 45% believed that directmail solicitation is
"designed to take advantage of gullible or unstable people"; 34%
found such tactics "annoying or irritating"; 26% found it "an
invasion of your privacy"; and 24% reported that it "made you
angry."
Ibid. Significantly, 27% of direct-mail recipients
reported that their regard for the legal profession and for the
judicial process as a whole was "lower" as a result of receiving
the direct mail.
Ibid.
The anecdotal record mustered by the Bar is noteworthy for its
breadth and detail. With titles like "Scavenger Lawyers" (The Miami
Herald, Sept. 29, 1987) and "Solicitors Out of Bounds" (St.
Petersburg Times, Oct. 26, 1987), newspaper editorial pages in
Florida have burgeoned with criticism of Florida lawyers who send
targeted direct mail to victims shortly after accidents. See
Summary of Record, App. B, pp. 1-8 (excerpts from articles); see
also Peltz, Legal Advertising-Opening Pandora's Box, 19 Stetson L.
Rev. 43, 116 (1989) (listing Florida editorials critical of
direct-mail solicitation of accident victims in 1987, several of
which are referenced in the record). The study summary also
includes page upon page of excerpts from complaints of direct-mail
recipients. For example, a Florida citizen described how he was "
'appalled and angered by the brazen attempt'" of a law firm to
solicit him by letter shortly after he was injured and his fiancée
was killed in an auto accident. Summary of Record, App. 1(1), p. 2.
Another found it "'despicable and inexcusable'" that a Pensacola
lawyer wrote to his mother three days after his father's funeral.
Ibid. Another described how she was "'astounded'" and then
"'very angry'" when
628
she received a solicitation following a minor accident.
Id., at 3. Still another described as "'beyond
comprehension'" a letter his nephew's family received the day of
the nephew's funeral.
Ibid. One citizen wrote, "'I consider
the unsolicited contact from you after my child's accident to be of
the rankest form of ambulance chasing and in incredibly poor taste
.... I cannot begin to express with my limited vocabulary the utter
contempt in which I hold you and your kind.' "
Ibid.
In light of this showing-which respondents at no time refuted,
save by the conclusory assertion that the Rule lacked "any factual
basis," Plaintiffs' Motion for Summary Judgment and Supplementary
Memorandum of Law in No. 92-370Civ. (MD Fla.), p. 5-we conclude
that the Bar has satisfied the second prong of the
Central
Hudson test. In dissent, JUSTICE KENNEDY complains that we have
before us few indications of the sample size or selection
procedures employed by Magid Associates (a nationally renowned
consulting firm) and no copies of the actual surveys employed. See
post, at 640. As stated, we believe the evidence adduced by
the Bar is sufficient to meet the standard elaborated in
Edenfield v.
Fane, 507 U. S. 761 (1993). In
any event, we do not read our case law to require that empirical
data come to us accompanied by a surfeit of background information.
Indeed, in other First Amendment contexts, we have permitted
litigants to justify speech restrictions by reference to studies
and anecdotes pertaining to different locales altogether, see
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 50-51
(1986);
Barnes v.
Glen Theatre, Inc., 501 U. S. 560, 584-585
(1991) (SOUTER, J., concurring in judgment), or even, in a case
applying strict scrutiny, to justify restrictions based solely on
history, consensus, and "simple common sense,"
Burson v.
Freeman, 504
U. S. 191, 211 (1992). Nothing in
Edenfield, a case in
which the State offered
no evidence or anecdotes in support
of its restriction, requires more. After scouring the record, we
are satisfied that the ban on direct-
629
mail solicitation in the immediate aftermath of accidents,
unlike the rule at issue in
Edenfield, targets a concrete,
nonspeculative harm.
In reaching a contrary conclusion, the Court of Appeals
determined that this case was governed squarely by
Shapero
v.
Kentucky Bar Assn., 486 U. S. 466 (1988).
Making no mention of the Bar's study, the court concluded that" 'a
targeted letter [does not] invade the recipient's privacy any more
than does a substantively identical letter mailed at large. The
invasion, if any, occurs when the lawyer discovers the recipient's
legal affairs, not when he confronts the recipient with the
discovery.'" 21 F. 3d, at 1044, quoting
Shapero, supra, at
476. In many cases, the Court of Appeals explained, "this invasion
of privacy will involve no more than reading the newspaper." 21 F.
3d, at 1044.
While some of
Shapero's language might be read to support
the Court of Appeals' interpretation,
Shapero differs in
several fundamental respects from the case before us. First and
foremost,
Shapero's treatment of privacy was casual.
Contrary to the dissent's suggestions,
post, at 637-638, the
State in
Shapero did not seek to justify its regulation as a
measure undertaken to prevent lawyers' invasions of privacy
interests. See generally Brief for Respondent in
Shapero v.
Kentucky Bar Assn., O. T. 1987, No. 87-16. Rather, the State
focused exclusively on the special dangers of overreaching inhering
in targeted solicitations.
Ibid. Second, in contrast to this
case,
Shapero dealt with a broad ban on
all
direct-mail solicitations, whatever the time frame and whoever the
recipient. Finally, the State in
Shapero assembled no
evidence attempting to demonstrate any actual harm caused by
targeted direct mail. The Court rejected the State's effort to
justify a prophylactic ban on the basis of blanket, untested
assertions of undue influence and overreaching. 486 U. S., at 475.
Because the State did not make a privacy-based argument at all, its
empirical showing on that issue was similarly infirm.
630
We find the Court's perfunctory treatment of privacy in
Shapero to be of little utility in assessing this ban on
targeted solicitation of victims in the immediate aftermath of
accidents. While it is undoubtedly true that many people find the
image of lawyers sifting through accident and police reports in
pursuit of prospective clients unpalatable and invasive, this case
targets a different kind of intrusion. The Bar has argued, and the
record reflects, that a principal purpose of the ban is "protecting
the personal privacy and tranquility of [Florida's] citizens from
crass commercial intrusion by attorneys upon their personal grief
in times of trauma." Brief for Petitioner 8; cf. Summary of Record,
App. 1(1) (citizen commentary describing outrage at lawyers' timing
in sending solicitation letters). The intrusion targeted by the
Bar's regulation stems not from the fact that a lawyer has learned
about an accident or disaster (as the Court of Appeals notes, in
many instances a lawyer need only read the newspaper to glean this
information), but from the lawyer's confrontation of victims or
relatives with such information, while wounds are still open, in
order to solicit their business. In this respect, an untargeted
letter mailed to society at large is different in kind from a
targeted solicitation; the untargeted letter involves no willful or
knowing affront to or invasion of the tranquility of bereaved or
injured individuals and simply does not cause the same kind of
reputational harm to the profession unearthed by the Bar's
study.
Nor do we find
Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60 (1983), dispositive of the issue, despite any
superficial resemblance. In
Bolger, we rejected the Federal
Government's paternalistic effort to ban potentially "offensive"
and "intrusive" direct-mail advertisements for contraceptives.
Minimizing the Government's allegations of harm, we reasoned that
"[r]ecipients of objectionable mailings ... may '''effectively
avoid further bombardment of their sensibilities simply by averting
their eyes."'"
Id., at 72, quoting
Con-
631
solidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N.
Y., 447 U. S. 530, 542
(1980), in turn quoting
Cohen v.
California, 403 U. S. 15, 21 (1971).
We found that the" 'short, though regular, journey from mail box to
trash can ... is an acceptable burden, at least so far as the
Constitution is concerned.''' 463 U. S., at 72 (ellipses in
original), quoting
Lamont v.
Commissioner of Motor
Vehicles, 269 F. Supp. 880, 883 (SDNY), summarily aff'd,
386 F.2d
449 (CA2 1967). Concluding that citizens have at their disposal
ample means of averting any substantial injury inhering in the
delivery of objectionable contraceptive material, we deemed the
State's intercession unnecessary and unduly restrictive.
Here, in contrast, the harm targeted by the Bar cannot be
eliminated by a brief journey to the trash can. The purpose of the
30-day targeted direct-mail ban is to forestall the outrage and
irritation with the state-licensed legal profession that the
practice of direct solicitation only days after accidents has
engendered. The Bar is concerned not with citizens' "offense" in
the abstract, see
post, at 638-639, but with the
demonstrable detrimental effects that such "offense" has on the
profession it regulates. See Brief for Petitioner 7, 14, 24, 28.2
Moreover, the harm posited by the Bar is as much a function of
simple receipt of targeted solicitations within days of accidents
as it is a function of the letters' contents. Throwing the letter
away shortly after opening it may minimize the latter intrusion,
but it does little to combat the former. We see no basis in
Bolger, nor in the other, similar cases cited by the
dissent,
post, at 638-639, for dismissing the Bar's
assertions of harm, particularly
2 Missing this nuance altogether, the dissent asserts
apocalyptically that we are "unsett1[ing] leading First Amendment
precedents,"
post, at 635, 639-640. We do no such thing.
There is an obvious difference between situations in which the
government acts in its own interests, or on behalf of entities it
regulates, and situations in which the government is motivated
primarily by paternalism. The cases cited by the dissent,
post, at 638-639, focus on the latter situation.
632
given the unrefuted empirical and anecdotal basis for the Bar's
conclusions.
Passing to
Central Hudson's third prong, we examine the
relationship between the Bar's interests and the means chosen to
serve them. See
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S., at 480. With respect to this
prong, the differences between commercial speech and noncommercial
speech are manifest. In
Fox, we made clear that the "least
restrictive means" test has no role in the commercial speech
context.
Ibid. "What our decisions require," instead, "is a
'fit' between the legislature's ends and the means chosen to
accomplish those ends,' a fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best
disposition but one whose scope is 'in proportion to the interest
served,' that employs not necessarily the least restrictive means
but ... a means narrowly tailored to achieve the desired
objective."
Ibid. (citations omitted). Of course, we do not
equate this test with the less rigorous obstacles of rational basis
review; in
Cincinnati v.
Discovery Network, Inc.,
507 U. S. 410,
417, n. 13 (1993), for example, we observed that the existence of
"numerous and obvious less-burdensome alternatives to the
restriction on commercial speech ... is certainly a relevant
consideration in determining whether the 'fit' between ends and
means is reasonable."
Respondents levy a great deal of criticism, echoed in the
dissent,
post, at 642-644, at the scope of the Bar's
restriction on targeted mail. "[B]y prohibiting written
communications to all people, whatever their state of mind,"
respondents charge, the Rule "keeps useful information from those
accident victims who are ready, willing and able to utilize a
lawyer's advice." Brief for Respondents 14. This criticism may be
parsed into two components. First, the Rule does not distinguish
between victims in terms of the severity of their injuries.
According to respondents, the Rule is unconstitutionally
overinclusive insofar as it bans targeted mail-
633
ings even to citizens whose injuries or grief are relatively
minor.
Id., at 15. Second, the Rule may prevent citizens
from learning about their legal options, particularly at a time
when other actors-opposing counsel and insurance adjusters-may be
clamoring for victims' attentions. Any benefit arising from the
Bar's regulation, respondents implicitly contend, is outweighed by
these costs.
We are not persuaded by respondents' allegations of
constitutional infirmity. We find little deficiency in the ban's
failure to distinguish among injured Floridians by the severity of
their pain or the intensity of their grief. Indeed, it is hard to
imagine the contours of a regulation that might satisfy respondents
on this score. Rather than drawing difficult lines on the basis
that some injuries are "severe" and some situations appropriate
(and others, presumably, inappropriate) for grief, anger, or
emotion, the Bar has crafted a ban applicable to all postaccident
or disaster solicitations for a brief 30-day period. Unlike
respondents, we do not see "numerous and obvious less-burdensome
alternatives" to Florida's short temporal ban.
Cincinnati,
supra, at 417, n. 13. The Bar's rule is reasonably well
tailored to its stated objective of eliminating targeted mailings
whose type and timing are a source of distress to Floridians,
distress that has caused many of them to lose respect for the legal
profession.
Respondents' second point would have force if the Bar's Rule
were not limited to a brief period and if there were not many other
ways for injured Floridians to learn about the availability of
legal representation during that time. Our lawyer advertising cases
have afforded lawyers a great deal of leeway to devise innovative
ways to attract new business. Florida permits lawyers to advertise
on prime-time television and radio as well as in newspapers and
other media. They may rent space on billboards. They may send
untargeted letters to the general population, or to discrete
segments thereof. There are, of course, pages upon pages de-
634
voted to lawyers in the Yellow Pages of Florida telephone
directories. These listings are organized alphabetically and by
area of specialty. See generally Rule 4-7.2(a), Rules Regulating
The Florida Bar ("[A] lawyer may advertise services through public
media, such as a telephone directory, legal directory, newspaper or
other periodical, billboards and other signs, radio, television,
and recorded messages the public may access by dialing a telephone
number, or through written communication not involving solicitation
as defined in rule 4-7.4");
The Florida Bar: Petition to Amend
the Rules Regulating the Florida Bar-Advertising Issues, 571
So. 2d, at 461. These ample alternative channels for receipt of
information about the availability of legal representation during
the 30-day period following accidents may explain why, despite the
ample evidence, testimony, and commentary submitted by those
favoring (as well as opposing) unrestricted direct-mail
solicitation, respondents have not pointed to-and we have not
independently found-a single example of an individual case in which
immediate solicitation helped to avoid, or failure to solicit
within 30 days brought about, the harms that concern the dissent,
see
post, at 643. In fact, the record contains considerable
empirical survey information suggesting that Floridians have little
difficulty finding a lawyer when they need one. See,
e. g.,
Summary of Record, App. C(4), p. 7; id., App. C(5), p. 8. Finding
no basis to question the commonsense conclusion that the many
alternative channels for communicating necessary information about
attorneys are sufficient, we see no defect in Florida's
regulation.
III
Speech by professionals obviously has many dimensions.
There are circumstances in which we will accord speech by
attorneys on public issues and matters of legal representation the
strongest protection our Constitution has to offer. See,
e. g.,
Gentile v.
State Bar of Nevada, 501 U. S. 1030
(1991); In re Primus, 436 U. S. 412 (1978).
This case, how-
635
ever, concerns pure commercial advertising, for which we have
always reserved a lesser degree of protection under the First
Amendment. Particularly because the standards and conduct of
state-licensed lawyers have traditionally been subject to extensive
regulation by the States, it is all the more appropriate that we
limit our scrutiny of state regulations to a level commensurate
with the "'subordinate position' " of commercial speech in the
scale of First Amendment values.
Fox, 492 U. S., at 477,
quoting
Ohralik, 436 U. S., at 456.
We believe that the Bar's 30-day restriction on targeted
direct-mail solicitation of accident victims and their relatives
withstands scrutiny under the three-pronged
Central Hudson
test that we have devised for this context. The Bar has substantial
interest both in protecting injured Floridians from invasive
conduct by lawyers and in preventing the erosion of confidence in
the profession that such repeated invasions have engendered. The
Bar's proffered study, unrebutted by respondents below, provides
evidence indicating that the harms it targets are far from
illusory. The palliative devised by the Bar to address these harms
is narrow both in scope and in duration. The Constitution, in our
view, requires nothing more.
The judgment of the Court of Appeals, accordingly, is
Reversed.
JUSTICE KENNEDY, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
Attorneys who communicate their willingness to assist potential
clients are engaged in speech protected by the First and Fourteenth
Amendments. That principle has been understood since
Bates
v.
State Bar of Ariz., 433 U. S. 350 (1977). The
Court today undercuts this guarantee in an important class of cases
and unsettles leading First Amendment precedents, at the expense of
those victims most in need of legal assistance. With all respect
for the Court, in
636
my view its solicitude for the privacy of victims and its
concern for our profession are misplaced and self-defeating, even
upon the Court's own premises.
I take it to be uncontroverted that when an accident results in
death or injury, it is often urgent at once to investigate the
occurrence, identify witnesses, and preserve evidence. Vital
interests in speech and expression are, therefore, at stake when by
law an attorney cannot direct a letter to the victim or the family
explaining this simple fact and offering competent legal
assistance. Meanwhile, represented and better informed parties, or
parties who have been solicited in ways more sophisticated and
indirect, may be at work. Indeed, these parties, either themselves
or by their attorneys, investigators, and adjusters, are free to
contact the unrepresented persons to gather evidence or offer
settlement. This scheme makes little sense. As is often true when
the law makes little sense, it is not first principles but their
interpretation and application that have gone awry.
Although I agree with the Court that the case can be resolved by
following the three-part inquiry we have identified to assess
restrictions on commercial speech,
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 557,
566 (1980), a preliminary observation is in order. Speech has the
capacity to convey complex substance, yielding various insights and
interpretations depending upon the identity of the listener or the
reader and the context of its transmission. It would oversimplify
to say that what we consider here is commercial speech and nothing
more, for in many instances the banned communications may be vital
to the recipients' right to petition the courts for redress of
grievances. The complex nature of expression is one reason why even
so-called commercial speech has become an essential part of the
public discourse the First Amendment secures. See,
e. g.,
Edenfield v.
Fane, 507 U. S. 761, 766-767
(1993). If our commercial speech rules are to control this case,
then, it is imperative to apply them with exacting care
637
and fidelity to our precedents, for what is at stake is the
suppression of information and knowledge that transcends the
financial self-interests of the speaker.
I
As the Court notes, the first of the
Central Hudson
factors to be considered is whether the interest the State pursues
in enacting the speech restriction is a substantial one.
Ante, at 624. The State says two different interests meet
this standard. The first is the interest "in protecting the
personal privacy and tranquility" of the victim and his or her
family. Brief for Petitioner 8. As the Court notes, that interest
has recognition in our decisions as a general matter; but it does
not follow that the privacy interest in the cases the majority
cites is applicable here. The problem the Court confronts, and
cannot overcome, is our recent decision in
Shapero v.
Kentucky Bar Assn., 486 U. S. 466 (1988). In
assessing the importance of the interest in that solicitation case,
we made an explicit distinction between direct, in-person
solicitations and direct-mail solicitations.
Shapero, like
this case, involved a direct-mail solicitation, and there the State
recited its fears of "overreaching and undue influence."
Id., at 475. We found, however, no such dangers presented by
direct-mail advertising. We reasoned that "[a] letter, like a
printed advertisement (but unlike a lawyer), can readily be put in
a drawer to be considered later, ignored, or discarded."
Id., at 475-476. We pointed out that "[t]he relevant inquiry
is not whether there exist potential clients whose 'condition'
makes them susceptible to undue influence, but whether the mode of
communication poses a serious danger that lawyers will exploit any
such susceptibility."
Id., at 474. In assessing the
substantiality of the evils to be prevented, we concluded that "the
mode of communication makes all the difference."
Id., at
475. The direct mail in
Shapero did not present the
justification for regulation of speech presented in
Ohralik
v.
Ohio State Bar Assn., 436 U. S. 447 (1978)
(a
638
lawyer's direct, in-person solicitation of personal injury
business may be prohibited by the State). See also
Edenfield,
supra (an accountant's direct, in-person solicitation of
accounting business did implicate a privacy interest, though not
one permitting state suppression of speech when other factors were
considered).
To avoid the controlling effect of
Shapero in the case
before us, the Court seeks to declare that a different privacy
interest is implicated. As it sees the matter, the substantial
concern is that victims or their families will be offended by
receiving a solicitation during their grief and trauma. But we do
not allow restrictions on speech to be justified on the ground that
the expression might offend the listener. On the contrary, we have
said that these "are classically not justifications validating the
suppression of expression protected by the First Amendment."
Carey v.
Population Services Int'l, 431 U. S. 678, 701
(1977). And in
Zauderer v.
Office of Disciplinary Counsel
of Supreme Court of Ohio, 471 U. S. 626 (1985),
where we struck down a ban on attorney advertising, we held that
"the mere possibility that some members of the population might
find advertising ... offensive cannot justify suppressing it. The
same must hold true for advertising that some members of the bar
might find beneath their dignity."
Id., at 648.
We have applied this principle to direct-mail cases as well as
with respect to general advertising, noting that the right to use
the mails is protected by the First Amendment. See
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 76 (1983)
(REHNQUIST, J., concurring) (citing
Blount v.
Rizzi,
400 U. S. 410
(1971)). In
Bolger, we held that a statute designed to
"shiel[d] recipients of mail from materials that they are likely to
find offensive" furthered an interest of "little weight," noting
that "we have consistently held that the fact that protected speech
may be offensive to some does not justify its suppression." 463 U.
S., at 71 (citing
Carey, supra, at 701). It is only where an
audience is captive that we will
639
assure its protection from some offensive speech. See
Consolidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N. Y.,
447 U. S. 530, 542
(1980). Outside that context, "we have never held that the
Government itself can shut off the flow of mailings to protect
those recipients who might potentially be offended."
Bolger,
supra, at 72. The occupants of a household receiving mailings
are not a captive audience, 463 U. S., at 72, and the asserted
interest in preventing their offense should be no more controlling
here than in our prior cases. All the recipient of objectional
mailings need do is to take "the 'short, though regular, journey
from mail box to trash can.'''
Ibid. (citation omitted). As
we have observed, this is "an acceptable burden, at least so far as
the Constitution is concerned."
Ibid. If these cases
forbidding restrictions on speech that might be offensive are to be
overruled, the Court should say so.
In the face of these difficulties of logic and precedent, the
State and the opinion of the Court turn to a second interest:
protecting the reputation and dignity of the legal profession. The
argument is, it seems fair to say, that all are demeaned by the
crass behavior of a few. The argument takes a further step in the
amicus brief filed by the Association of Trial Lawyers of
America. There it is said that disrespect for the profession from
this sort of solicitation (but presumably from no other sort of
solicitation) results in lower jury verdicts. In a sense, of
course, these arguments are circular. While disrespect will arise
from an unethical or improper practice, the majority begs a most
critical question by assuming that direct-mail solicitations
constitute such a practice. The fact is, however, that direct
solicitation may serve vital purposes and promote the
administration of justice, and to the extent the bar seeks to
protect lawyers' reputations by preventing them from engaging in
speech some deem offensive, the State is doing nothing more (as
amicus the Association of Trial Lawyers of America is at
least candid enough to admit) than manipulating the public's
opinion by suppressing speech
640
that informs us how the legal system works. The disrespect
argument thus proceeds from the very assumption it tries to prove,
which is to say that solicitations within 30 days serve no
legitimate purpose. This, of course, is censorship pure and simple;
and censorship is antithetical to the first principles of free
expression.
II
Even were the interests asserted substantial, the regulation
here fails the second part of the
Central Hudson test, which
requires that the dangers the State seeks to eliminate be real and
that a speech restriction or ban advance that asserted state
interest in a direct and material way.
Edenfield, 507 U. S.,
at 771. The burden of demonstrating the reality of the asserted
harm rests on the State.
Ibid. Slight evidence in this
regard does not mean there is sufficient evidence to support the
claims. Here, what the State has offered falls well short of
demonstrating that the harms it is trying to redress are real, let
alone that the regulation directly and materially advances the
State's interests. The parties and the Court have used the term
"Summary of Record" to describe a document prepared by the Florida
Bar (Bar), one of the adverse parties, and submitted to the
District Court in this case. See
ante, at 626. This document
includes no actual surveys, few indications of sample size or
selection procedures, no explanations of methodology, and no
discussion of excluded results. 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. The majority describes this anecdotal matter as
"noteworthy for its breadth and detail,"
ante, at 627, but
when examined, it is noteworthy for its incompetence. The selective
synopses of unvalidated studies deal, for the most part, with
television advertising and phone book listings, and not direct-mail
solicitations. Although there may be issues common to various kinds
of attorney advertising and solicitation, it is not clear what
would follow from
641
that limited premise, unless the Court means by its decision to
call into question all forms of attorney advertising. The most
generous reading of this document permits identification of 34
pages on which direct-mail solicitation is arguably discussed. Of
these, only two are even a synopsis of a study of the attitudes of
Floridians towards such solicitations. The bulk of the remaining
pages include comments by lawyers about direct mail (some of them
favorable), excerpts from citizen complaints about such
solicitation, and a few excerpts from newspaper articles on the
topic. 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. See,
e. g.,
Edenfield, 507 U.
S., at 771-772.
It is telling that the essential thrust of all the material
adduced to justify the State's interest is devoted to the
reputational concerns of the Bar. It is not at all clear that this
regulation advances the interest of protecting persons who are
suffering trauma and grief, and we are cited to no material in the
record for that claim. Indeed, when asked at oral argument what a
"typical injured plaintiff get[s] in the mail," the Bar's lawyer
replied: "That's not in the record ... and I don't know the answer
to that question." Tr. of Oral Arg. 25. Having declared that the
privacy interest is one both substantial and served by the
regulation, the Court ought not to be excused from justifying its
conclusion.
III
The insufficiency of the regulation to advance the State's
interest is reinforced by the third inquiry necessary in this
analysis. Were it appropriate to reach the third part of the
Central Hudson test, it would be clear that the relationship
between the Bar's interests and the means chosen to serve them is
not a reasonable fit. The Bar's rule creates a fiat
642
ban that prohibits far more speech than necessary to serve the
purported state interest. Even assuming that interest were
legitimate, there is a wild disproportion between the harm supposed
and the speech ban enforced. I t is a disproportion the Court does
not bother to discuss, but our speech jurisprudence requires that
it do so.
Central Hudson, 447 U. S., at 569-571;
Board of
Trustees of State Univ. of N.
Y.
To begin with, the ban applies with respect to all accidental
injuries, whatever their gravity. The Court's purported
justification for the excess of regulation in this respect is the
difficulty of drawing lines between severe and less serious
injuries, see
ante, at 633, but making such distinctions is
not important in this analysis. Even were it significant, the
Court's assertion is unconvincing. After all, the criminal law
routinely distinguishes degrees of bodily harm, see,
e. g.,
United States Sentencing Commission, Guidelines Manual § 1B1.1,
comment., n. l(b), (h), (j) (Nov. 1994), and if that delineation is
permissible and workable in the criminal context, it should not be
"hard to imagine the contours of a regulation" that satisfies the
reasonable fit requirement.
Ante, at 633.
There is, moreover, simply no justification for assuming that in
all or most cases an attorney's advice would be unwelcome or
unnecessary when the survivors or the victim must at once begin
assessing their legal and financial position in a rational manner.
With regard to lesser injuries, there is little chance that for any
period, much less 30 days, the victims will become distraught upon
hearing from an attorney. It is, in fact, more likely a real risk
that some victims might think no attorney will be interested enough
to help them. It is at this precise time that sound legal advice
may be necessary and most urgent.
Even as to more serious injuries, the State's argument fails,
since it must be conceded that prompt legal representation is
essential where death or injury results from accidents.
643
The only seeming justification for the State's restriction is
the one the Court itself offers, which is that attorneys can and do
resort to other ways of communicating important legal information
to potential clients. Quite aside from the latent protectionism for
the established bar that the argument discloses, it fails for the
more fundamental reason that it concedes the necessity for the very
representation the attorneys solicit and the State seeks to ban.
The accident victims who are prejudiced to vindicate the State's
purported desire for more dignity in the legal profession will be
the very persons who most need legal advice, for they are the
victims who, because they lack education, linguistic ability, or
familiarity with the legal system, are unable to seek out legal
services. Cf.
Trainmen v.
Virginia ex rel. Virginia State
Bar, 377 U. S.
1, 3-4 (1964).
The reasonableness of the State's chosen methods for redressing
perceived evils can be evaluated, in part, by a commonsense
consideration of other possible means of regulation that have not
been tried. Here, the Court neglects the fact that this problem is
largely self-policing: Potential clients will not hire lawyers who
offend them. And even if a person enters into a contract with an
attorney and later regrets it, Florida, like some other States,
allows clients to rescind certain contracts with attorneys within a
stated time after they are executed. See,
e. g., Rules
Regulating the Florida Bar, Rule 4-1.5 (Statement of Client's
Rights) (effective Jan. 1, 1993). The State's restriction deprives
accident victims of information which may be critical to their
right to make a claim for compensation for injuries. The telephone
book and general advertisements may serve this purpose in part; but
the direct solicitation ban will fall on those who most need legal
representation: for those with minor injuries, the victims too ill
informed to know an attorney may be interested in their cases; for
those with serious injuries, the victims too ill informed to know
that time is of the essence if counsel is to assemble evidence and
warn them not to enter into settle-
644
ment negotiations or evidentiary discussions with investigators
for opposing parties. One survey reports that over a recent 5-year
period, 68% of the American population consulted a lawyer. N. Y.
Times, June 11, 1995, section 3, p. 1, col. 1. The use of modern
communication methods in a timely way is essential if clients who
make up this vast demand are to be advised and informed of all of
their choices and rights in selecting an attorney. The very fact
that some 280,000 direct-mail solicitations are sent to accident
victims and their survivors in Florida each year is some indication
of the efficacy of this device. Nothing in the Court's opinion
demonstrates that these efforts do not serve some beneficial role.
A solicitation letter is not a contract. Nothing in the record
shows that these communications do not at the least serve the
purpose of informing the prospective client that he or she has a
number of different attorneys from whom to choose, so that the
decision to select counsel, after an interview with one or more
interested attorneys, can be deliberate and informed. And if these
communications reveal the social costs of the tort system as a
whole, then efforts can be directed to reforming the operation of
that system, not to suppressing information about how the system
works. The Court's approach, however, does not seem to be the
proper way to begin elevating the honor of the profession.
IV
It is most ironic that, for the first time since
Bates v.
State Bar of Arizona, the Court now orders a major retreat
from the constitutional guarantees for commercial speech in order
to shield its own profession from public criticism. Obscuring the
financial aspect of the legal profession from public discussion
through direct-mail solicitation, at the expense of the least
sophisticated members of society, is not a laudable constitutional
goal. There is no authority for the proposition that the
Constitution permits the State to promote the public image of the
legal profession by suppressing informa-
645
tion about the profession's business aspects. If public respect
for the profession erodes because solicitation distorts the idea of
the law as most lawyers see it, it must be remembered that real
progress begins with more rational speech, not less. I agree that
if this amounts to mere "sermonizing," see
Shapero, 486 U.
S., at 490 (O'CONNOR, J., dissenting), the attempt may be futile.
The guiding principle, however, is that full and rational
discussion furthers sound regulation and necessary reform. The
image of the profession cannot be enhanced without improving the
substance of its practice. The objective of the profession is to
ensure that "the ethical standards of lawyers are linked to the
service and protection of clients."
Ohralik, 436 U. S., at
461.
Today's opinion is a serious departure, not only from our prior
decisions involving attorney advertising, but also from the
principles that govern the transmission of commercial speech. The
Court's opinion reflects a new-found and illegitimate confidence
that it, along with the Supreme Court of Florida, knows what is
best for the Bar and its clients. Self-assurance has always been
the hallmark of a censor. That is why under the First Amendment the
public, not the State, has the right and the power to decide what
ideas and information are deserving of their adherence. "[T]he
general rule is that the speaker and the audience, not the
government, assess the value of the information presented."
Edenfield, 507 U. S., at 767. By validating Florida's rule,
today's majority is complicit in the Bar's censorship. For these
reasons, I dissent from the opinion of the Court and from its
judgment.
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