OCTOBER TERM, 1993
Syllabus
IBANEZ
v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION, BOARD OF ACCOUNTANCY
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST
DISTRICT
No. 93-639. Argued April 19, 1994-Decided June 13, 1994
Petitioner Ibanez is a member of the Florida Bar; she is also a
Certified Public Accountant (CPA) licensed by respondent Florida
Board of Accountancy (Board), and is authorized by the Certified
Financial Planner Board of Standards, a private organization, to
use the designation "Certified Financial Planner" (CFP). She
referred to these credentials in her advertising and other
communication with the public concerning her law practice, placing
CPA and CFP next to her name in her yellow pages listing and on her
business cards and law offices stationery. Notwithstanding the
apparent truthfulness of the communication-it is undisputed that
neither her CPA license nor her CFP authorization has been
revoked-the Board reprimanded her for engaging in "false,
deceptive, and misleading" advertising. The District Court of
Appeal of Florida, First District, affirmed.
Held: The Board's decision censuring Ibanez is
incompatible with First Amendment restraints on official action.
Pp. 142-149.
(a) Ibanez' use of the CPA and CFP designations qualifies as
"commercial speech." The State may ban such speech only if it is
false, deceptive, or misleading. See,
e. g., Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626,
638. If it is not, the State can restrict it, but only upon a
showing that the restriction directly and materially advances a
substantial state interest in a manner no more extensive than
necessary to serve that interest. See,
e. g., Central Hudson
Gas &
Elec. Corp. v.
Public Servo Comm'n of
N. Y.,
447 U. S.
557, 564, 566. The State's burden is not slight: It must
demonstrate that the harms it recites are real and that its
restrictions will in fact alleviate them to a material degree. See,
e. g., Edenfield v.
Fane, 507 U. S. 761, 771.
Measured against these standards, the order reprimanding Ibanez
cannot stand. Pp. 142-143.
(b) The Board asserts that Ibanez' use of the CPA designation on
her commercial communications is misleading in that it tells the
public she is subject to the Florida Accountancy Act and to the
Board's jurisdiction "when she believes and acts as though she is
not." This position is insubstantial. Ibanez no longer contests the
Board's assertion of juris-
137
diction over her, and in any event, what she "believes"
regarding the reach of the Board's authority is not sanctionable.
See
Baird v.
State Bar of Ariz., 401 U. S. 1,6. Nor can the
Board rest on the bare assertion that Ibanez is unwilling to comply
with its regulation; it must build its case on specific evidence of
noncompliance. It has never even charged Ibanez with an action out
of compliance with the governing statutory or regulatory standards.
And as long as she holds a currently active CPA license from the
Board, it is difficult to see how consumers could be misled by her
truthful representation to that effect. Pp. 143-144.
(c) The Board's justifications for disciplining Ibanez based on
her use of the CFP designation are not more persuasive. The Board
presents no evidence that Ibanez' use of the term "certified"
"inherently mislead[s]" by causing the public to infer state
approval and recognition. See
Peel v.
Attorney
Registration and Disciplinary Comm'n of Ill., 496 U. S. 91
(attorney's use of designation "Certified Civil Trial Specialist By
the National Board of Trial Advocacy" neither actually nor
inherently misleading). Nor did the Board advert to key aspects of
the designation here at issue-the nature of the authorizing
organization and the state of knowledge of the public to whom
Ibanez' communications are directed-in reaching its alternative
conclusion that the CFP designation is "potentially misleading." On
the bare record made in this case, the Board has not shown that the
restrictions burden no more of Ibanez' constitutionally protected
speech than necessary. Pp. 144-149.
621 So. 2d 435, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court with
respect to Part II-B, and the opinion of the Court with respect to
Parts I, II-A, and II-C, in which BLACKMUN, STEVENS, SCALIA,
KENNEDY, SOUTER, and THOMAS, JJ., joined. O'CONNOR, J., filed an
opinion concurring in part and dissenting in part, in which
REHNQUIST, C. J., joined,
post, p. 149.
Silvia Safille Ibanez, pro se, argued the cause for petitioner.
With her on the briefs were J. Lofton Westmoreland and Robert J.
Shapiro.
Lisa S.
Nelson argued the cause and filed a brief
for respondent. *
*Briefs of
amici curiae urging reversal were filed for
the Alliance of Practicing Certified Public Accountants et al. by
Donald B. Verrilli, Jr., David W DeBruin, and
Maureen
F.
Del Duca; for the American Association of
Attorney-Certified Public Accountants, Inc., by
David
Ostrove,
138
JUSTICE GINSBURG delivered the opinion of the Court. Petitioner
Silvia Safille Ibanez, a member of the Florida Bar since 1983,
practices law in Winter Haven, Florida. She is also a Certified
Public Accountant (CPA), licensed by respondent Florida Board of
Accountancy (Board) 1 to "practice public accounting." In addition,
she is authorized by the Certified Financial Planner Board of
Standards, a private organization, to use the trademarked
designation "Certified Financial Planner" (CFP).
Ibanez referred to these credentials in her advertising and
other communication with the public. She placed CPA and CFP next to
her name in her yellow pages listing (under "Attorneys") and on her
business card. She also used those designations at the left side of
her "Law Offices" stationery. Notwithstanding the apparently
truthful nature of her communication-it is undisputed that neither
her CPA license nor her CFP certification has been revoked-the
Board reprimanded her for engaging in "false, deceptive, and
misleading" advertising. Final Order of the Board of Accountancy
(May 12, 1992) (hereinafter Final Order), App. 178, 194.
The record reveals that the Board has not shouldered the burden
it must carry in matters of this order. It has not
Sydney S.
Traum, and
Philip D. Brent; for
the Certified Financial Planner Board of Standards et al. by
Peter E. Zwanzig; and for the Florida Bar by
Steven E.
Stark and
Scott D. Makar.
Briefs of
amici curiae urging affirmance were filed for
the American Institute of Certified Public Accountants by
Louis
A. Craco, Richard I. Miller, Michael R. Young, and
Kelly M.
Hnatt; and for the Florida Institute of Certified Public
Accountants by
Kenneth R. Hart and
Steven P.
Seymoe.
1 The Board of Accountancy, created by the Florida Legislature,
Fla.
Stat. § 473.303 (1991), is authorized to "adopt all rules
necessary to administer" the Public Accountancy Act (chapter 473 of
the Florida Statutes). Fla. Stat. §473.304 (Supp. 1992). The Board
is responsible for licensing CPA's, see Fla. Stat. §473.308 (1991),
and every licensee is subject to the governance of the Act and the
rules adopted by the Board. Fla. Stat. §473.304 (Supp. 1992).
139
demonstrated with sufficient specificity that any member of the
public could have been misled by Ibanez' constitutionally protected
speech or that any harm could have resulted from allowing that
speech to reach the public's eyes. We therefore hold that the
Board's decision censuring Ibanez is incompatible with First
Amendment restraints on official action.
I
Under Florida's Public Accountancy Act, only licensed CPA's may
"[a]ttest as an expert in accountancy to the reliability or
fairness of presentation of financial information," Fla. Stat.
§473.322(1)(c) (1991),2 or use the title "CPA" or other title
"tending to indicate that such person holds an active license"
under Florida law. §473.322(1)(b). Furthermore, only licensed CPA's
may "[p]ractice public accounting." § 473.322(1)(a). "Practicing
public accounting" is defined as an "offe[r] to perform ... one or
more types of services involving the use of accounting skills, or
... management advisory or consulting services," Fla. Stat. §
473.302(5) (Supp. 1992), made by one who either
is,
§473.302(5)(a), or
"hold[s] himself ... out as,"
§473.302(5)(b) (emphasis added), a certified public
accountant.3
The Board learned of Ibanez' use of the designations CPA and CFP
when a copy of Ibanez' yellow pages listing was mailed,
anonymously, to the Board's offices; it thereupon commenced an
investigation and, subsequently, issued a complaint against her.
The Board charged Ibanez with (1)
2 This "attest" function is more commonly referred to as
"auditing."
3 Florida's Public Accountancy Act is known as a "Title Act"
because, with the exception of the "attest" function, activities
performed by CPA's can lawfully be performed by non-CPA's. See
Brief for Respondent 1112. The Act contains additional restrictions
on the conduct of licensed CPA's. For example, a partnership or
corporation cannot "practice public accounting" unless all partners
or shareholders are CPA's, Fla. Stat. §473.309 (1991), nor may
licensees "engaged in the practice of public accounting" payor
accept referral fees, § 473.3205, or accept contingency fees, §
473.319.
140
"practicing public accounting" in an unlicensed firm, in
violation of § 473.3101 of the Public Accountancy Act; 4 (2) using
a "specialty designation"-CFp-that had not been approved by the
Board, in violation of Board Rule 24.001(1)(g), Fla. Admin. Code §
61Hl-24.001(1)(g) (1994); 5 and (3) appending the CPA designation
after her name, thereby "impl[ying] that she abides by the
provisions of [the Public Accountancy Act]," in violation of Rule
24.001(1)'s ban on "fraudulent, false, deceptive, or misleading"
advertising. Amended Administrative Complaint (filed June 30,
1991), 1 Record 32-35.
At the ensuing disciplinary hearing, Ibanez argued that she was
practicing law, not "public accounting," and was therefore not
subject to the Board's regulatory jurisdiction. Response to Amended
Administrative Complaint (filed Aug. 26, 1991), , 25, id., at 108.6
Her use of the CPA and CFP designations, she argued further,
constituted "nonmisleading, truthful, commercial speech" for which
she could not be sanctioned. , 24, ibid. Prior to the close of
proceedings before the hearing officer, the Board dropped the
charge that Ibanez was practicing public accounting in an
unlicensed firm. Order on Reconsideration (filed Aug. 22, 1991), ,
2, id., at 103-104. The hearing officer subsequently found in
Ibanez' favor on all counts, and recommended to the Board that,
4 Florida Stat. § 473.3101 (Supp. 1994) requires that "[e]ach
partnership, corporation, or limited liability company seeking to
engage in the practice of public accounting" apply for a license
from the Board, and § 473.309 requires that each such partnership
or corporation hold a current license.
5 Rule 24.001(1) states, in pertinent part, that "[n]o licensee
shall disseminate ... any ... advertising which is in any way
fraudulent, false, deceptive, or misleading, if it ... (g) [s]tates
or implies that the licensee has received formal recognition as a
specialist in any aspect of the practice of public accountancy
unless ... [the] recognizing agency is approved by the Board." Fla.
Admin. Code § 61H1-24.001(1) (1994). The CFP Board of Standards,
the "recognizing agency" in regard to Ibanez' CFP designation, has
not been approved by the Board.
6 Ibanez pointed out that she does not perform the "attest"
function in her law practice, and that no service she performs
requires a CPA license. See supra, at 139, n. 3.
141
for want of the requisite proof, all charges against Ibanez be
dismissed. Recommended Order (filed Jan. 15, 1992), App.147.
The Board rejected the hearing officer's recommendation, and
declared Ibanez guilty of "false, deceptive and misleading"
advertising. Final Order, id., at 194. The Board reasoned, first,
that Ibanez was "practicing public accounting" by virtue of her use
of the CPA designation and was thus subject to the Board's
disciplinary jurisdiction.
Id., at 183. Because Ibanez had
insisted that her law practice was outside the Board's regulatory
jurisdiction, she had, in the Board's judgment, rendered her use of
the CPA designation misleading:
"[Ibanez] advertises the fact that she is a CPA, while
performing the same 'accounting' activities she performed when she
worked for licensed CPA firms, but she does not concede that she is
engaged in the practice of public accounting so as to bring herself
within the jurisdiction of the Board of Accountancy for any
negligence or errors [of which] she may be guilty when delivering
her services to her clients.
"[Ibanez] is unwilling to acquiesce in the requirements of [the
Public Accountancy Act] and [the Board's rules] by complying with
those requirements. She does not license her firm as a CPA firm;
forego certain forms of remuneration denied to individuals who are
practicing public accountancy; or limit the ownership of her firm
to other CPAs .... [She] has, in effect, told the public that she
is subject to the provisions of [the Public Accountancy Act] and
the jurisdiction of the Board of Accountancy when she believes and
acts as though she is not." Id., at 184-185.
Next, the Board addressed Ibanez' use of the CFP designation. On
that matter, the Board stated that any designation using the term
"certified" to refer to a certifying orga-
142
nization other than the Board itself (or an organization
approved by the Board) "inherently mislead[s] the public into
believing that state approval and recognition exists."
Id.,
at 193-194. Ibanez appealed to the District Court of Appeal, First
District, which affirmed the Board's final order
per curiam
without opinion.
Id., at 196, judgt. order reported at 621
So. 2d 435 (1993). As a result, Ibanez had no right of review in
the Florida Supreme Court. We granted certiorari, 510 U. S. 1067
(1994), and now reverse.
II A
The Board correctly acknowledged that Ibanez' use of the CPA and
CFP designations was "commercial speech." Final Order, App. 186.
Because "disclosure of truthful, relevant information is more
likely to make a positive contribution to decisionmaking than is
concealment of such information,"
Peel v.
Attorney
Registration and Disciplinary Comm'n of Ill., 496 U. S. 91, 108 (1990),
only false, deceptive, or misleading commercial speech may be
banned.
Zauderer v.
Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U. S. 626, 638
(1985), citing
Friedman v.
Rogers, 440 U. S. 1 (1979); see
also
In re R. M. J.,
455 U. S. 191, 203 (1982)
("Truthful advertising related to lawful activities is entitled to
the protections of the First Amendment .... Misleading advertising
may be prohibited entirely.").
Commercial speech that is not false, deceptive, or misleading
can be restricted, but only if the State shows that the restriction
directly and materially advances a substantial state interest in a
manner no more extensive than necessary to serve that interest.7
Central Hudson Gas &
Elec. Corp. v.
Public
Servo Comm'n of N.
Y., 447 U. S. 557, 566
(1980);
7"It is well established that '[t]he party seeking to uphold a
restriction on commercial speech carries the burden of justifying
it.'''
Edenfield V.
Fane, 507 U. S. 761, 770
(1993), quoting
Bolger V.
Youngs Drug Products Corp.,
463 U. S. 60, 71,
n. 20 (1983).
143
see also id., at 564 (regulation will not be sustained if it
"provides only ineffective or remote support for the government's
purpose");
Edenfield v.
Fane, 507 U. S. 761, 767 (1993)
(regulation must advance substantial state interest in a "direct
and material way" and be in "reasonable proportion to the interests
served");
In re R. M. J., 455 U. S., at 203 (State can
regulate commercial speech if it shows that it has "a substantial
interest" and that the interference with speech is "in proportion
to the interest served").
The State's burden is not slight; the "free flow of commercial
information is valuable enough to justify imposing on would-be
regulators the costs of distinguishing the truthful from the false,
the helpful from the misleading, and the harmless from the
harmful."
Zauderer, 471 U. S., at 646. "[M]ere speculation
or conjecture" will not suffice; rather the State "must demonstrate
that the harms it recites are real and that its restriction will in
fact alleviate them to a material degree."
Edenfield, 507 U.
S., at 770, 771; see also
Zauderer, 471 U. S., at 648-649
(State's "unsupported assertions" insufficient to justify
prohibition on attorney advertising; "broad prophylactic rules may
not be so lightly justified if the protections afforded commercial
speech are to retain their force"). Measured against these
standards, the order reprimanding Ibanez cannot stand.
B
We turn first to Ibanez' use of the CPA designation in her
commercial communications. On that matter, the Board's position is
entirely insubstantial. To reiterate, Ibanez holds a currently
active CPA license which the Board has never sought to revoke. The
Board asserts that her truthful communication is nonetheless
misleading because it "[tells] the public that she is subject to
the provisions of [the Accountancy Act] and the jurisdiction of the
Board of Accountancy when she believes and acts as though she is
not." Final Order, App. 185; see also Brief for Respondent 20
("[T]he use
144
of the CPA designation ... where the licensee is unwilling to
comply with the provisions of the [statute] under which the license
was granted, is inherently misleading and may be prohibited.").
Ibanez no longer contests the Board's assertion of jurisdiction,
see Brief for Petitioner 28 (Ibanez "is, in fact, a licensee
subject to the rules of the Board"), and in any event, what she
"believes" regarding the reach of the Board's authority is not
sanctionable. See
Baird v.
State Bar of Ariz., 401 U.
S. 1, 6 (1971) (First Amendment "prohibits a State from excluding a
person from a profession or punishing him solely because ... he
holds certain beliefs"). Nor can the Board rest on a bare assertion
that Ibanez is "unwilling to comply" with its regulation. To
survive constitutional review, the Board must build its case on
specific evidence of noncompliance. Ibanez has neither been charged
with, nor found guilty of, any professional activity or practice
out of compliance with the governing statutory or regulatory
standards.8 And as long as Ibanez holds an active CPA license from
the Board we cannot imagine how consumers can be misled by her
truthful representation to that effect.
C
The Board's justifications for disciplining Ibanez for using the
CFP designation are scarcely more persuasive. The Board concluded
that the words used in the designationparticularly, the word
"certified"-so closely resemble "the terms protected by state
licensure itself, that their use, when not approved by the Board,
inherently mislead[s] the public into believing that state approval
and recognition exists." Final Order, App. 193-194. This conclusion
is difficult to maintain in light of
Peel. We held in
Peel that an attorney's use of the designation "Certified
Civil Trial Specialist By the
8 Notably, the Board itself withdrew the only charge against
Ibanez of this kind, viz., the allegation that she practiced public
accounting in an unlicensed firm. See supra, at 140.
145
National Board of Trial Advocacy" was neither actually nor
inherently misleading. See 496 U. S., at 106 (rejecting contention
that use of National Board of Trial Advocacy certification on
attorney's letterhead was "actually misleading"); id., at 110
("State may not ... completely ban statements that are not actually
or inherently misleading, such as certification as a specialist by
bona fide organizations such as NBTA"); id., at 111 (Marshall, J.,
joined by Brennan, J., concurring in judgment) (agreeing that
attorney's letterhead was "neither actually nor inherently
misleading"). The Board offers nothing to support a different
conclusion with respect to the CFP designation.9 Given "the
complete absence of any evidence of deception," id., at 106, the
Board's "concern about the possibility of deception in hypothetical
cases is not sufficient to rebut the constitutional presumption
favoring disclosure over concealment," id., at 111.10
9 JUSTICE O'CONNOR writes that "[t]he average consumer has no
way to verify the accuracy or value of [Ibanez'] use of the CFP
designation" because her advertising, "[u]nlike the advertisement
in
Peel, ... did not identify the organization that had
conferred the certification."
Post, at 150. We do not agree
that the consumer of financial planning services is thus
disarmed.
To verify Ibanez' CFP credential, a consumer could call the CFP
Board of Standards. The Board that reprimanded Ibanez never
suggested that such a call would be significantly more difficult to
make than one to the certifying organization in
Peel, the
National Board of Trial Advocacy. We note in this regard that the
attorney's letterhead in
Peel supplied no address or
telephone number for the certifying agency. Most instructive on
this matter, we think, is the requirement of the Rules of
Professional Conduct of the Florida Bar, to which attorney Ibanez
is subject, that she provide "written information setting forth the
factual details of [her] experience, expertise, background, and
training" to anyone who so inquires. See Florida Bar, Rule of
Professional Conduct 4-7.3(a)(2).
10 The Board called only three witnesses at the proceeding
against Ibanez, all of whom were employees or former employees of
the Department of Professional Regulation. Neither the witnesses,
nor the Board in its submissions to this Court, offered evidence
that any member of the public has been misled by the use of the CFP
designation. See
Peel, 496 U. S., at 100-101 (noting that
there was "no contention that any potential client
146
The Board alternatively contends that Ibanez' use of the CFP
designation is "potentially misleading," entitling the Board to
"enact measures short of a total ban to prevent deception or
confusion." Brief for Respondent 33, citing
Peel, 496 U. S.,
at 116 (Marshall, J., joined by Brennan, J., concurring in
judgment). If the "protections afforded commercial speech are to
retain their force,"
Zauderer, 471 U. S., at 648-649, we
cannot allow rote invocation of the words "potentially misleading"
to supplant the Board's burden to "demonstrate that the harms it
recites are real and that its restriction will in fact alleviate
them to a material degree."
Edenfield, 507 U. S., at
771.
The Board points to Rule 24.001(1)(j), Fla. Admin. Code §
61Hl-24.001(1)(j) (1994), which prohibits use of any "specialist"
designation unless accompanied by a disclaimer, made "in the
immediate proximity of the statement that implies formal
recognition as a specialist"; the disclaimer must "stat[e] that the
recognizing agency is not affiliated with or sanctioned by the
state or federal government," and it must set out the recognizing
agency's "requirements for recognition, including, but not limited
to, educatio[n], experience[,] and testing." See Brief for
Respondent 33-35. Given the state of this record-the failure of the
Board to point to any harm that is potentially real, not purely
hypothetical-we are satisfied that the Board's action is
unjustified. We express no opinion whether, in other situations or
on a different record, the Board's insistence on a disclaimer might
serve as an appropriately tailored check against deception or
confusion, rather than one imposing "unduly burdensome disclosure
requirements [that] offend the First Amendment."
Zauderer,
471 U. S., at 651. This much is plain, however:
The detail required in the disclaimer currently described by the
Board effectively rules out notation of the "specialist"
or person was actually misled or deceived," nor "any factual
finding of actual deception or misunderstanding").
147
designation on a business card or letterhead, or in a yellow
pages listing. 11
The concurring Justices, on whom the Board relies, did indeed
find the "[NBTA] Certified Civil Trial Specialist" statement on a
lawyer's letterhead "potentially misleading," but they stated no
categorical rule applicable to all specialty designations. Thus,
they recognized that "[t]he potential for misunderstanding might be
less if the NBTA were a commonly recognized organization and the
public had a general understanding of its requirements."
Peel, 496 U. S., at 115. In this regard, we stress again the
failure of the Board to back up its alleged concern that the
designation CFP would mislead rather than inform.
The Board never adverted to the prospect that the public
potentially in need of a civil trial specialist, see
Peel,
supra, is wider, and perhaps less sophisticated, than the
public with financial resources warranting the services of a
planner. Noteworthy in this connection, "Certified Financial
Planner" and "CFP" are well-established, protected federal
trademarks that have been described as "the most recognized
designation[s] in the planning field." Financial Planners:
Report of Staff of United States Securities and Exchange
Commission to the House Committee on Energy and Commerce's
Subcommittee on Telecommunications and Finance 53 (1988), reprinted
in Financial Planners and Investment Advisors, Hearing before the
Subcommittee on Consumer Affairs of the Senate Committee on
Banking, Housing and Urban Affairs, 100th Cong., 2d Sess., 78
(1988). Approxi-
11 Under the Board's regulations, moreover, it appears that even
a disclaimer of the kind described would not have saved Ibanez from
censure. Rule 24.001(i) flatly bans "[s]tat[ing] a form of
recognition by any entity other than the Board that uses the ter[m]
'certified.'" Separate and distinct from that absolute prohibition,
the regulations further proscribe "[s]tat[ing] or impl[ying] that
the licensee has received formal recognition as a specialist in any
aspect of the practice of public accounting, unless the statement
contains" a copiously detailed disclaimer. Rule 24.001(j).
148
mately 27,000 persons have qualified for the designation
nationwide. Brief for Certified Financial Planner Board of
Standards, Inc., et al. as
Amici Curiae 3. Over 50
accredited universities and colleges have established courses of
study in financial planning approved by the CFP Board of Standards,
and standards for licensure include satisfaction of certain core
educational requirements, a passing score on a certification
examination "similar in concept to the Bar or CPA examinations,"
completion of a planning-related work experience requirement,
agreement to abide by the CFP Code of Ethics and Professional
Responsibility, and an annual continuing education requirement.
Id., at 10-15.
Ibanez, it bears emphasis, is engaged in the practice of law and
so represents her offices to the public. Indeed, she performs work
reserved for lawyers but nothing that only CPA's may do. See
supra, at 139, n. 3. It is therefore significant that her
use of the designation CFP is considered in all respects
appropriate by the Florida Bar. See Brief for Florida Bar as
Amicus Curiae 9-10 (noting that Florida Bar, Rules of
Professional Conduct, and particularly Rule 4-7.3, "specifically
allo[w] Ibanez to disclose her CPA and CFP credentials [and]
contemplate that Ibanez must provide this information to
prospective clients (if relevant)").
Beyond question, this case does not fall within the caveat noted
in
Peel covering certifications issued by organizations that
"had made no inquiry into petitioner's fitness," or had "issued
certificates indiscriminately for a price"; statements made in such
certifications, "even if true, could be misleading." 496 U. S., at
102. We have never sustained restrictions on constitutionally
protected speech based on a record so bare as the one on which the
Board relies here. See
Edenfield, 507 U. S., at 771
(striking down Florida ban on CPA solicitation where Board
"presents no studies that suggest personal solicitation ... creates
the dangers ... the Board claims to fear" nor even "anecdotal
evidence ... that validates the Board's suppositions");
Zauderer, 471 U. S., at
149
648-649 (striking down restrictions on attorney advertising
where "State's arguments amount to little more than unsupported
assertions" without "evidence or authority of any kind"). To
approve the Board's reprimand of Ibanez would be to risk toleration
of commercial speech restraints "in the service of ... objectives
that could not themselves justify a burden on commercial
expression."
Edenfield, 507 U. S., at 171.
Accordingly, the judgment of the Florida District Court of
Appeal is reversed, and the case is remanded for proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring
in part and dissenting in part.
Once again, we are confronted with a First Amendment challenge
to a state restriction on professional advertising. Petitioner, who
has been licensed as an attorney and as a certified public
accountant (CPA) by the State of Florida, and who also has been
recognized as a "Certified Financial Planner" (CFP) by a private
organization, identified herself in telephone listings under the
"attorneys" heading as "IBANEZ SILVIA S CPA CFP." App.4.
Respondent, the Florida Board of Accountancy, determined that
petitioner's use of both the CPA and the CFP designations was
inherently misleading, and sanctioned her for false advertising.
Fla. Stat. § 473.323(1)(f) (1991) (accountants subject to
disciplinary action if they "[a]dvertis[e] goods or services in a
manner which is fraudulent, false, deceptive, or misleading in form
or content").
I
Because petitioner's use of the CFP designation is both
inherently and potentially misleading, I would uphold the Board's
sanction of petitioner. I therefore respectfully dissent from Parts
II-A and II-C of the opinion of the Court.
150
Opinion of O'CONNOR, J.
A
States may prohibit inherently misleading speech entirely.
In re R. M. J.,
455 U. S. 191, 203
(1982). In
Peel v.
Attorney Registration and Disciplinary
Comm'n of Ill., 496 U. S. 91 (1990), we
considered an attorney advertisement that proclaimed the lawyer to
be a "'Certified Civil Trial Specialist By the National Board of
Trial Advocacy.''' See id., at 96. A majority of the Court
concluded that this statement was not inherently misleading,
although the discussion of this issue was joined by only four
Justices. See id., at 100-106 (plurality opinion); id., at 111
(Marshall, J., concurring in judgment). The plurality reasoned that
the certification was a statement of verifiable fact; that the
certification had been conferred by a reputable organization that
had applied objectively clear standards to determining the
attorney's qualifications; and that consumers would not confuse the
attorney's claim of certification as a specialist with formal state
recognition.
Although the Certified Financial Planner Board of Standards,
Inc., appears to be a reputable organization that applies
objectively clear standards before conferring the CFP designation
on accountants, the other factors relied on by the
Peel
plurality are not present in this case. First, it was important in
Peel that "[t]he facts stated on [the attorney's] letterhead
are true
and verifiable." Id., at 100 (emphasis added); see
also id., at 101 ("A lawyer's certification by [the recognizing
organization] is a verifiable fact, as are the predicate
requirements for that certification"). Of course, petitioner's
recognition as a CFP can be verified-but only if the consumer knows
where to call or write. Unlike the advertisement in
Peel,
petitioner's advertisements did not identify the organization that
had conferred the certification. The average consumer has no way to
verify the accuracy or value of petitioner's use of the CFP
designation.
Related to this point is the fact that, in the absence of an
identified conferring organization, the consumer is likely to
151
conclude that the CFP designation is conferred by the State. The
Peel plurality stressed that "it seems unlikely that [the
attorney's] statement about his certification as a 'specialist'
by an identified national organization necessarily would be
confused with formal state recognition."
Id., at 104-105
(emphasis added). Because here there is no such identification, the
converse is true. It is common knowledge that "many States
prescribe requirements for, and 'certify' public accountants as,
'Certified Public Accountants.'"
Id., at 113 (Marshall, J.,
concurring in judgment). Petitioner has of course been licensed as
a CPA by the State of Florida. But her use of the CFP designation
in close connection with the identification of herself as a CPA
("IBANEZ SILVIA S CPA CFP") would lead a reasonable consumer to
conclude that the two "certifications" were conferred by the same
entitythe State of Florida.
The Board of Accountancy has recognized this likelihood of
consumer confusion: "[The term 'certified'] in conjunction with the
term 'CPA' and the practice of public accounting, [is] so close to
the terms protected by state licensure itself, that [its] use, when
not approved by the Board, inherently mislead[s] the public into
believing that state approval and recognition exists." App.
193-194. For this reason, the Board's regulations provide that an
advertisement will be deemed misleading if it "[s]tates a form of
recognition by any entity other than the Board that uses the ter[m]
'certified.'" Fla. Admin. Code 61Hl-24.001(1)(i) (1994).
Petitioner's advertising is in clear violation of this prohibition.
Because the First Amendment does not prevent a State from
protecting consumers from such inherently misleading advertising,
in my view the Board's blanket prohibition on the use of the term
"certified" in CPA advertising is constitutional as applied to
petitioner.
B
But even if petitioner's use of "certified" was not inherently
misleading, it seems clear beyond cavil that
some con-
152
Opinion of O'CONNOR, J.
sumers would conclude that the State conferred the CFP
designation, just as it does the CPA license, and thus that the
advertisement is
potentially misleading. Indeed, this
conclusion follows
a fortiori from
Peel, where five
Justices concluded that the attorney's specialty designation was at
least potentially misleading. See 496 U. S., at 118 (White, J.,
dissenting). The advertisement in
Peel, which identified the
certifying organization, provided substantially more information to
consumers than does petitioner's advertisement; if the one was
potentially misleading (and we said that it was), so too is the
other.
States may not completely ban potentially misleading commercial
speech if narrower limitations can ensure that the information is
presented in a nonmisleading manner.
In re R. M. J.,
supra, at 203. But if a professional's certification claim
has the potential to mislead, the State may "requir[e] a disclaimer
about the certifying organization or the standards of a specialty."
Peel, 496 U. S., at 110 (plurality opinion); see also id.,
at 116-117 (Marshall, J., concurring in judgment);
In re R.
M. J.,
supra, at 203. The Board has done just that: An
advertisement that "[s]tates or implies that the licensee has
received formal recognition as a specialist in any aspect of the
practice of public accounting" will be deemed false or misleading,
"unless the statement contains a disclaimer stating that the
recognizing agency is not affiliated with or sanctioned by the
state or federal government." Fla. Admin. Code 61Hl-24.001(1)(j)
(1994). "The advertisement must also contain the agency's
requirements for recognition, including, but not limited to,
educatio[n], experience and testing. These statements must be in
the immediate proximity of the statement that implies formal
recognition as a specialist."
Ibid. There is no question but
that the CFP designation "implies that [petitioner] has received
formal recognition as a specialist" in financial planning, an
"aspect of the practice of public accounting," and her
advertisements do not contain the required disclaimer. If the
ab-
153
solute prohibition on the use of the term "certified" cannot be
applied to petitioner (as the Court today holds), then the
disclaimer requirement applies to petitioner's advertising that she
is a specialist in financial planning. Because petitioner failed to
comply with it, the Board properly disciplined her.
II
Petitioner
is a certified public accountant, and her use
of the CPA designation in advertising conveyed this truthful
information to the public. I agree with the Court that the State of
Florida may not prohibit petitioner's use of the CPA designation
under the circumstances in which this case is presented to us, and
I therefore join Part II-B of the Court's opinion. I would only
point out that it is open to the Board to proceed against
petitioner for practicing public accounting in violation of
statutory or regulatory standards applicable to Florida
accountants. See Brief for Petitioner 28 ("Petitioner is, in fact,
a licensee subject to the rules of the Board of Accountancy"). And
if petitioner's public accounting license is revoked, the State may
constitutionally prohibit her from advertising herself as a
CPA.
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