FLORIDA BAR v. WENT FOR IT INC.
Went For It, Inc., (a lawyer referral service) and John T. Blakely (a Florida attorney) were sending targeted direct-mail solicitations to victims and their relatives who had been injured in an accident. According to Florida Bar rules, such direct and targeted mailings are prohibited for thirty days following an accident or disaster.
Do the Florida Bar rules prohibiting direct mail solicitation of accident victims violate the free speech of personal injury attorneys?
Legal provision: Amendment 1: Speech, Press, and Assembly
No. Lawyer advertising is commercial speech and as such, is accorded only a limited measure of First Amendment protection. Under this "intermediate scrutiny," restriction on commercial speech 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.
Argument of Barry Scott Richard
Chief Justice Rehnquist: We'll hear argument next in case number 94-226, Florida Bar v. G. Stewart McHenry.
Mr. Richard: Mr. Chief Justice and may it please the Court:
This case arose out of the adoption by the Florida supreme court of a rule which prohibited attorneys from engaging in direct mail solicitation to victims of accidents or their survivors for a period of 30 days after the accident.
The district court declared that the rule was unconstitutional, and the Eleventh Circuit affirmed.
In an unusual postscript to its opinion, the Eleventh Circuit stated that it was disturbed that it was required by this Court's earlier decision in Bates and its progeny to reach that result.
The concern that was expressed by the Eleventh Circuit reflected similar concerns expressed by at least seven justices in full or partial dissents in Bates and the cases following Bates.
Bates itself was a limited decision by its own characterization.
It held only that a State could not entirely prohibit an attorney from engaging in what the Court later in Ohralik referred to as restrained advertising of the rates for routine legal services and nothing more.
A year later, in Ohralik, this Court stated that the States had a critical interest in maintaining the high standards of professionalism in connection with attorney advertising, and in fact it permitted States to prohibit altogether an attorney from engaging in direct, person-to-person solicitation of any nature.
Unknown Speaker: Does Florida permit lawyers to solicit business in person?
Mr. Richard: No, ma'am, it does not.
In doing so, this Court in Ohralik noted that an attorney's interest in his or her remunerative employment was charged with only marginal First Amendment concerns, and that regulation of that type of advertising falls within the State's proper sphere of economic and professional regulation.
In Ohralik, the Court noted a significant distinction between the restrained advertising that the Court had permitted in Bates and what it referred to in an earlier case of Railroad Trainmen v. West Virginia as ambulance chasing.
The case this Court stated in Ohralik did not involve ambulance chasing.
Ten years later, however, in Zauderer and Shapero, the Court prohibited the States from regulating what in essence amounted to ambulance chasing.
In Zauderer, the Court held that States could not prohibit direct solicitation of clients based upon a particular legal problem, and in Shapero, the Court took another giant step forward when it held that States could not regulate the direct, targeted solicitation of particular individuals who had suffered or were about to suffer a particular legal problem.
Unknown Speaker: How do you distinguish this case from that of Shapero?
It seems pretty close.
Mr. Richard: Justice O'Connor, I believe that this case can be distinguished from Shapero on the basis of the fact that it is a reasonable time, place, or manner restriction.
Unknown Speaker: Well, doesn't a time, place, and manner restriction have to be content-neutral?
Mr. Richard: It does, and we believe that--
Unknown Speaker: How is this content-neutral?
Mr. Richard: --Well, we believe it is content-neutral within the scope of what this Court has interpreted as content-neutral.
What it said in Clark v. Community for Creative Nonviolence, and in Ward v. Rock Against Racism, and in Renton v. Playtime Theatres is that the issue, the principal inquiry in determining content neutrality, and I'm quoting from Ward, is whether the Government's purpose in control... is the controlling consideration.
Government regulation of expressive activity is content-neutral, the Court said, so long as it is justified without reference to the content of the regulated speech.
Unknown Speaker: But doesn't this regulation address only certain types of speech, and it's there with reference to a particular kind of speech?
Mr. Richard: Yes, Justice Connor, it does, but this Court has never--
Unknown Speaker: O'Connor.
Mr. Richard: --has never said that simply because you must make reference to the content in order to determine whether or not it falls within the scope of the regulation, that it therefore violates the content-neutral rule.
Unknown Speaker: Yes, but you justify this regulation by what the communication says.
Mr. Richard: We justify it--
Unknown Speaker: And that was not true in the cases that you've cited.
Mr. Richard: --It justifies... I'm sorry.
Unknown Speaker: Here, you do justify the regulation in terms of the content of the communication.
That's the whole point of the case.
Mr. Richard: Well, Just--
Unknown Speaker: Now, you might... you might still prevail, but it's not content-neutral.
Mr. Richard: --Well, Justice Kennedy, I would suggest that it's justified by the nature of the person to whom the communication is sent, the circumstances of that individual.
In Renton, clearly it's necessary to make reference to the nature of the film to determine whether or not it contains adult situations, which is what the Renton ordinance provided, that you had to... you could prohibit it within certain zoned areas.
You must, therefore, make reference to the content of the film to determine whether or not it's subject to the regulation, but what this Court said was that that wasn't the controlling factor if the purpose of it was not to control the content but rather to control the secondary effects of it.
It said the same thing essentially in Ward, that you have to look at whether or not reference to the content was for the purpose of controlling the content.
Here the content is permitted--
Unknown Speaker: But do you think the effect on the person to whom the message is addressed is a secondary effect within the meaning of Renton?
Mr. Richard: --Well, that... that is, Your Honor, if you're talking about the effect upon that individual.
If you're talking about the--
Unknown Speaker: In Renton, you're not talking about the people who wanted to go to these theaters.
Mr. Richard: --Well, you are--
Unknown Speaker: You're talking about what it did to the neighborhood.
Mr. Richard: --You're talking about the effect upon the community and the surrounding area.
Unknown Speaker: Not the audience or the message.
Whereas here, you're talking about the effect of the message on the people who receive it.
Mr. Richard: What we're suggesting, Your Honor, is that the State has the right to determine that it has a secondary effect upon the legal profession as a whole and, in turn, the administration of justice, and that the ability of the State to make that judgment has been entirely removed by this Court's prior opinions.
Unknown Speaker: What the State is saying, then, is that a certain number of lawyers will chase ambulances if we don't prohibit them, and it's going to make the whole bar look bad if they find out that these people are chasing ambulances, therefore we'll prohibit it.
That sounds like an odd justification.
Mr. Richard: What we're talking about, Justice Rehnquist, is the extent to which we are going to permit the States to make these judgments, as opposed to the extent to which the Federal courts are going to micromanage the question of attorney advertising, and what's happened here is that as a matter of law, essentially this Court has said that the question of whether or not a given type of attorney advertising will have an adverse effect upon the view of the public as to lawyers and the institutions that they serve is beyond the scope of State consideration.
Unknown Speaker: Well, but is it really a terribly legitimate State goal to say, we want to protect not the substance of the reputation of the legal profession but the appearance of the reputation?
Mr. Richard: Well, Your Honor, I believe it is.
The justices of this Court and most judges wear black robes.
We hold these proceedings in a magnificent edifice.
We require lawyers to meet certain dress codes.
Why do we do that?
We do that, I would--
Unknown Speaker: Personal injury lawyers, not probate lawyers.
Potential plaintiffs' lawyers, not potential defendants' lawyers.
How can you say this isn't based on content if it is the potential personal injury plaintiff's lawyer that is being stopped within 30 days but not the probate lawyer, not the insurance adjuster, and not the attorney for the potential defendant?
Mr. Richard: --Well, that's indistinguishable, Justice Ginsburg, I would suggest, from the Renton situation with adult films.
What we're really talking about when you ask that question is whether it's underinclusive, which is not a constitutional issue.
You can make reference to the content if your purpose is not to control the content.
Here, the State of Florida doesn't seek to control the content.
Unknown Speaker: I don't see how, in terms of your justification, the privacy of the person, it makes any difference whether the person who is making the solicitation is an insurance adjuster for the other side, or a potential defendant's lawyer, or a probate lawyer.
If the idea is this person should be let alone, should not get lawyer' letters, then I don't understand even the rationale for saying only certain kinds of lawyers.
Mr. Richard: Well, Justice Ginsburg, that may well be true, and it's an issue that was addressed by this Court in Ohralik, where they mentioned precisely what Your Honor is saying with regard to the possibility of adjusters contacting individuals.
What the Court said in Ohralik, which I think is accurate, implicitly what they said was, that's not a constitutional question.
That can be dealt with and, in fact, is dealt with by courts which view with a very dim eye agreements that are entered into by individuals prior to the time that they've had an opportunity to visit with a lawyer, but that's... that is--
Unknown Speaker: Did Ohralik say only personal injury lawyers can't have face-to-face contact, or was this all lawyers?
Mr. Richard: --That is what the rule says, but this Court has said time and time again... well, it doesn't define the lawyer.
It says that you can't contact a person in order to solicit business for a period of 30 days after a personal injury.
Now, that, of course, wouldn't affect an adjuster, who's not a lawyer.
It wouldn't affect a lawyer for an insurance company who is not seeking to solicit business.
But this Court has said time and time again that the State may deal with these issues on a step-to-step basis as it sees a need for it, and that that's not a constitutional issue, so it may well be that the State ought to go back at some point and look at that question as to whether or not it should be expanded, but the constitutional issue before this Court is whether the State can deal with this as to anyone.
Unknown Speaker: Does the State bar regard this Court's decision in Edenfield v. Fane as a guiding light in this area?
You seem to be making a grand scale attack on everything since Bates, so I would like to know in particular, since that has been an important decision in this line of commercial advertising lawyer solicitation cases, Edenfield v. Fane, do you regard that as a precedent that you have no quarrel with?
Mr. Richard: The Edenfield case was a case of limited application, and we do not have a problem with Edenfield.
We believe... and I'm glad you asked the question, because we believe that the essential problem here was created in Zauderer and in Shapero, and not solely because this... and that goes well beyond the question of whether this is a time, place, or manner restriction.
We believe that the decisions that were made in Zauderer and Shapero were blatantly inconsistent with two other lines of cases that this Court had been deciding simultaneously.
One of them was the cases on commercial solicitation, commercial advertising generally, and the other was what we have referred to in our brief as the institutional speech cases.
What this Court said in Central Hudson v. Public Service Commission and in Board of Trustees v. Fox is that the States are entitled to considerable deference in determining where to draw the line on commercial advertising, and when it begins to be too much to meet the requirements of the First Amendment.
In Board of Trustees v. Fox, in addition to saying that there is no least restrictive means test, the Court said this: it said, we have been loath to second-guess the Government's judgment regarding where to draw the line.
We take into account the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires, and provide the legislative and executive branches needed leeway in a field, commercial speech, traditionally subject to Government regulation.
Well, at the same time the Court was saying that, it was saying with respect to lawyers... and this is just commercial solicitation, which in Ohralik the Court said was only marginally charged with First Amendment protection.
At the same time it said that, it essentially, in Zauderer and Shapero, gave the courts... gave the States no leeway... no leeway to deal with this.
It basically said, you don't have a substantial enough interest to consider it.
In fact, in Shapero, in part 3 of Shapero, which represented the views of only four justices but nevertheless was part of the opinion of the Court, it said you couldn't even deal with the format of the letter.
You couldn't even deal with the letter that was essentially a used-car type of an advertisement that said to an individual, free legal services, that made subjective predictions of success, that said, call me now.
Now, In Ohralik, this Court said that the State had a substantial interest in avoiding the potential that a lawyer, because of the lawyer's training and experience, could be overbearing with an individual, and yet, in Shapero, in part 3 of Shapero, it essentially said, you can use any type of enticement to get that individual to call you, and then you're basically free.
Unknown Speaker: So suppose that in Florida... I can... suppose there's been a bad accident, and it involves a man or a woman who knows nothing about law, so obviously they're terribly upset, and I can understand why you might want to keep lawyers away from them for 30 days.
But suppose that man or that woman, who's terribly upset and doesn't have much money and knows nothing about law, would like to find a lawyer.
How, in Florida, can they do it?
That is, what well-known ways are there for people who know nothing about law, who have just been in a bad accident, who think they might need a lawyer, who don't have friends who are lawyers, how do they find out where to go?
Mr. Richard: Well, there are numerous ways to do it.
They can, of course, look in the yellow pages, they can call the local bar, they can call friends who are lawyers, but beyond that, we are not suggesting to this Court--
Unknown Speaker: I'm not asking you... I wanted a factual answer.
That is, I'm... what actually do they do?
They could go to the yellow pages, maybe they have a friend who has a lawyer, and you say, call the bar.
What does that involve?
What does that involve?
Is there a system so that people who don't know how to get to lawyers can?
Mr. Richard: --Both of--
Unknown Speaker: Is there a lawyer referral service--
--Yes, what is there?
Mr. Richard: --Yes, ma'am.
Both at the State level and at the local bar level there are lawyer referral services.
Unknown Speaker: How does it work?
Mr. Richard: You call the bar and they make available to you from a list of lawyers those who have indicated that they handle that type of work.
In addition, Florida recognizes both designation of fields and specialization as certification, so there are a list... lawyers are listed in the yellow pages by designation of a field or by certi... the fact that they've been certified to handle a particular field.
My understanding is that most States now permit lawyers to list in the yellow pages with designations.
Unknown Speaker: Do lawyers advertise on television in Florida?
Mr. Richard: Yes, they do.
Unknown Speaker: Personal injury lawyers?
Mr. Richard: Yes, they do.
Unknown Speaker: And do they advertise on billboards in Florida?
Mr. Richard: I'm not aware of whether or not we have billboard advertising, but this Court's decision in Shapero would not allow the State to control billboard advertising.
In fact, part 3 wouldn't allow the State to control what it looked like.
Unknown Speaker: But should we be con--
--May I ask another question about the Florida practice?
Does the bar routinely either prohibit or encourage letters to accident victims within the first 30 days of the accident?
Mr. Richard: The bar takes no position as to that, because it believes it is not permitted to as a result of this Court's decisions.
Unknown Speaker: Did the bar association... I'm talking about the bar association, not individual lawyers.
Does the bar association affirmatively make an effort to make known to the accident victims that they have this referral service available?
Mr. Richard: Oh, yes, sir, and as a matter of fact it has publications that it attempts to widely distribute, it has public service announcements that it distributes, all of which a bar is entitled to do as a public service in the Florida--
Unknown Speaker: And they mail those to the accident victim within the 30-day period after the accident?
Mr. Richard: --I'm not aware of any practice by the Florida Bar to mail things to any victims.
Unknown Speaker: I'm just wondering if it would be consistent with your position here to say maybe we should prohibit it because they don't want to be... they're... you know, they're emotionally disturbed during that 30-day period.
Mr. Richard: Well, I would like to address that, Justice Stevens.
In the first place, I think that would... personally, I see nothing wrong with a letter that does not seek to get business for a given lawyer advising an individual that they have rights that they may seek a lawyer for, and in that regard, the Florida Bar is not asking this Court to reverse the holding in Bates.
The holding in Bates simply said that restrained advertising of availability and prices of services for routine legal matters are permissible under the First Amendment.
We don't challenge that, but we believe that the Court should return to the States the ability to manage the degree and the manner in which lawyers proceed to do that, rather than--
Unknown Speaker: Within limits.
You're not quarreling with Ibanez.
Mr. Richard: --That's correct.
Unknown Speaker: Indeed, you supported... you came in as a friend of this Court and said the State is not permitted to have that kind of regulation.
Mr. Richard: --Yes, Justice Ginsburg, and we were happy with the opinion that you wrote in the case, and the opinion was a unanimous opinion, and we had no problem with Ibanez whatsoever.
Ibanez went to an extreme by saying that a person could not even... a lawyer, according to the Board of Accountancy, could not even indicate that that lawyer was also a CPA, a simple, truthful statement which had... which reflected nothing with respect to any substantial State interest, and I can't see how that could, either.
Unknown Speaker: Well, maybe you want to add a word or two.
You're interested very much in all these legal cases, which is right, but I'm interested at the moment in the facts.
That is, on the one hand you're saying what justifies this are lawyers' reputations and the need to give a man or a woman a little... a few days of peace.
On the other hand, they're saying, but how would such a person find a lawyer when they might need one?
Now, so far you've said the yellow pages, which strikes me as not terrific, the... maybe they've seen some ads somewhere, and then there's this thing called the referral service.
But I mean, does the referral service get to people?
Do they know about it?
Is there a way for a human being to find a lawyer when he or she feels he needs one?
Mr. Richard: --Justice Breyer--
Unknown Speaker: One way is they'll write him a letter, and then he'll know somebody's interested.
Mr. Richard: --I'd like to give you several responses to that.
There are those things.
In addition, because we are not asking this Court to overturn Bates, there's no reason why a lawyer who desires to make the public aware of the fact that that lawyer is available and provides services in a given area should not be able to run an ad.
That's not the issue, we believe, in this case.
In addition, we don't believe that it's a proper, constitutional purpose for the Federal courts to micromanage the question you're raising, which is, to what extent should States be able to tell lawyers that they can or cannot engage in these activities?
The one other remark that you made that I would like to respectfully comment on was that the substantial State interest that we were suggesting here was that lawyers be able to protect their reputations, which is what the respondent wishes to suggest is the substantial State interest, and I think that trivializes what we are really suggesting here.
We are not saying that lawyers should be able to protect their reputations, but what we are saying is that we learned several hundred years ago that the manner in which we treat our fundamental institutions, that the dignity which we grant to those institutions, has a great deal to do with the respect the public has in them and their credibility as institutions.
Unknown Speaker: May I follow up on how this works?
Suppose that you do go to the yellow pages and you phone an attorney and you say, I've had a terrible accident, will you please write me a letter about the terms of the employment, and this is all within the first or second day.
Is the lawyer permitted to write the letter?
Mr. Richard: Yes, he is, or she is.
Unknown Speaker: How does... that's... is there some exception to the written communications rule that you quote at page 2?
I mean, I assumed that your answer would be what it is, but I don't get that from reading the regulation at page 2 of your brief.
Mr. Richard: Florida interprets that rule not to prohibit it once a contact has been made with the lawyer and he has a relationship with the potential client.
Florida does not interpret that rule to prohibit a lawyer from responding to a prior request by a client, or a potential client.
Unknown Speaker: What about... suppose a relative of a client writes... tells the attorney please write my nephew?
Mr. Richard: Your Honor, you're asking me questions now that I don't know the answer to.
I don't know whether Florida has addressed that, or the extent to which it has addressed that.
The only concern that I have here is the extent to which the lower court said Florida cannot address it at all.
Unknown Speaker: Well, we have to examine the regulation as it's given to us, and as I read it, at least in the case that I put the lawyer could not write the client, or the proposed client.
Mr. Richard: Florida I can tell you doesn't interpret it that way, but the question of that interpretation was never an issue in this case, and--
Unknown Speaker: Mr. Richard... I'm sorry.
I didn't mean to interrupt you.
Please finish your answer to Justice Kennedy.
Mr. Richard: --I was just going to point out that there's a significant distinction between what Your Honor is suggesting and a mass mailing of innumerable letters to an individual who has just been involved in an accident or a personal tragedy at any point and who has not sought any lawyer, and finds a virtual feeding frenzy taking place as to who that individual is going to select as a lawyer, or whether that individual is going to select anybody, and the issue here which this Court has recognized is that there is a substantial State interest in protecting the professional standards of the bar, and the question is what does that mean, and I would suggest--
Unknown Speaker: I thought your... I thought your primary justification was protecting those who were in shock and grief.
Mr. Richard: --Well, we--
Unknown Speaker: And you said, we don't want to trivialize this case by saying we're simply trying to protect the image of the bar.
Mr. Richard: --We see--
Unknown Speaker: I took it from that that your primary justification is the sensibilities of the people to whom the letters would be addressed.
Mr. Richard: --Justice Souter, we have advanced two separate substantial interests.
One of them is the protection of the... or the enhancement of the professional standards of the legal profession, and the second is not so much to protect individuals, but that the State has a substantial interest in maintaining a community standard of privacy and tranquility, the same thing--
Unknown Speaker: Well, if that is the... to the extent that that is the justification, may I take you back to the underinclusiveness point, because the issue that is raised by that is the extent to which the regulation in question really does have any substantial effect in accomplishing your object, and when it is as underinclusive as this is... insurance adjusters can get in touch with them, potential defendants can get in touch with them, probate lawyers can get in touch with them, and so on... isn't that a rather heavy mark against your justification, to be as underinclusive as that?
Mr. Richard: --Well, the Florida supreme court, and the Florida Bar prior to that, perceived a particular problem.
The problem that the bar perceived and that the supreme court perceived was that attorneys were obtaining mass listings from the Department of Motor Vehicles of individuals who had been injured, and sending mass--
Unknown Speaker: Well, I have no doubt of that.
I mean, I will assume that, but there's still the problem of underinclusiveness, because the same people can be victimized by insurance companies and by defendants and by other kinds of lawyers, and how do you deal with the underinclusiveness problem?
Mr. Richard: --Well, this Court has said in a number of cases that underinclusiveness is not itself unconstitutional.
Unknown Speaker: No, but it goes very much to the question of the degree to which your regulation advances the interest that you claim.
Mr. Richard: I think that's correct.
Unknown Speaker: I suppose one reason for the underinclusiveness, if it be that, is that the Florida bar can't regulate insurance adjusters.
Mr. Richard: Well, that is an answer, Your Honor, and that's correct.
It cannot regulate insurance--
Unknown Speaker: No, but it can regulate defense lawyers and probate lawyers.
Mr. Richard: --It can regulate defense lawyers, but Florida apparently has not perceived a problem with defense lawyers inundating an individual who's been... who has been injured.
Unknown Speaker: There can only be one defense lawyer at a time, I suppose.
There wouldn't be a flood of them in any one case.
But it seemed to me it might be equally offensive to the plaintiff.
Mr. Richard: You know, Your Honor, the lower court here didn't strike--
Unknown Speaker: What is the evidence that there's these mass mailings?
Is that really the fact?
I can understand there'd be a lot of them, but what do you mean by mass mailing?
What does a typical injured plaintiff get in the mail, according to their--
Mr. Richard: --That's not in the record, Your Honor, and I don't know the answer to that question.
Unknown Speaker: --Mr. Richard, for purposes of judging this case, do we have to simply... do we not, in fact, simply assume that what is being used here is State power, and therefore it... as a practical matter it's the State rather than a bar association as such which is being judged by First Amendment standards?
Is that a correct assumption?
Mr. Richard: That is correct, Your Honor.
It's the Florida supreme court that adopts this rule.
Through the Florida bar as an arm of the court, the court requests the bar to propose rules to it, but it is the Florida supreme court, after public debate, at which, by the way, the Florida supreme court hears from the public at large... it's not limited... the court will adopt the rule as it sees fit, and will modify the rule that's been proposed.
Unknown Speaker: And one of those justices made the point that several of the questions you've received are trying to get at... Justice Shaw.
How do you answer his concern that this ban will effectively deprive many accident victims of information that would be helpful to them at the most crucial time for them, that that 30-day period may be the most crucial time when they need help most?
Mr. Richard: We think here are numerous ways in which the Florida bar and the Florida supreme court through the bar can remedy that problem, which is essentially a problem of the social question of how we make people aware of the accessibility of legal services.
We do not believe it's necessary to remedy that problem by the Federal courts, and in particular this Court, decreeing that it is beyond the power of the State to consider the strictly commercial implications of certain types of attorney advertising.
Because what's happened here is, it has been raised to a constitutional level, and what has been imposed upon the States in reality is a least restrictive means test and what appears to be pretty close to a clear-and-convincing-evidence test, something that hasn't been done in any of the other commercial fields, and something in fact that hasn't been done in fields involving political and ideological speech when it comes to issues of protecting public privacy and public tranquility and issues involving matters that may affect the mission of other fundamental public institutions in which this Court has said considerable deference must be granted to the States to make this decision.
Instead, when it comes to attorney advertising, the Court has interjected itself and Federal courts have interjected themselves to the point of saying, we will manage this issue, and we will allow the States whatever the other problems may be that the States ought to be able to address.
The real question here is, shouldn't the States be able to address whether or not an attorney, by the manner in which he is approaching individuals with whom he has no prior relationship, by the manner in which he is presenting himself and, in turn, the legal profession, and perhaps in turn the administration of justice, shouldn't the State be able to consider whether or not that has an unduly adverse effect upon not only that individual, not only a community standard of propriety in terms of privacy and tranquility, but upon the entire--
Unknown Speaker: Thank you, Mr. Richard.
Your time has expired.
Mr. Richard: --Thank you, Mr. Chief Justice.
Unknown Speaker: Mr. Rogow.
Argument of Bruce S. Rogow
Mr. Rogow: Mr. Chief Justice, and may it please the Court:
The fundamental premise of the commercial speech cases is that truthful, nonmisleading information is of great benefit to the listener, and that's what this case is about.
The letters at issue in this case are highly regulated by the Florida Bar.
At page 12-A of the appendix to our brief, we set forth the extensive regulations about these letters... what they must contain, what they must say, the fact that the envelope and each page must be stamped "Advertisement".
These are the least intrusive, the most discreet forms of communication, and the question is whether or not that mode of communication can be precluded by the Florida Bar for a period of 30 days during the time, as then Chief Justice Shaw of the Florida supreme court said, during the time when a person is most in need of the information.
And yes, the question of underinclusiveness, as Mr. Richard I think has now conceded, goes to whether or not this regulation directly and materially advances substantial State interests, and if one of those State interests is this theoretical privacy right, then how is that State interest directly and materially advanced by a rule which precludes the lawyer from sending a letter informing a person of his or her rights but allows the insurance adjuster or the defense lawyer to communicate with that person any time.
Unknown Speaker: Well, certainly some of our cases, Mr. Rogow, in the commercial speech area have said that the Government can confront evils one step at a time.
It doesn't have to regulate the whole waterfront before it addresses a single evil that it perceives.
Mr. Rogow: It is true, Mr. Chief Justice, but there are several problems with this.
One, the evil, if, indeed, it is an evil to hear truthful, nonmisleading information, and we don't subscribe to the notion that that's evil or injurious in any way, but that evil, if it's going to be directly and materially stopped, if a State regulation is going to accomplish that, has to be even-handed.
It has to be fair.
Unknown Speaker: Why can't they say--
--Of course, at the time the First Amendment was adopted, all advertising by lawyers could have been restricted.
I mean, this is a... the change was effected by our decision in Bates.
I don't know that the change has to go so far as to say that you cannot in any respect treat lawyers differently.
Mr. Rogow: Justice Scalia, the change--
Unknown Speaker: That's been a long tradition.
Mr. Rogow: --It has, and lawyers are treated differently.
Indeed... indeed, the regulations that the Florida Bar imposes are different.
Unknown Speaker: So at least insurance adjusters are irrelevant.
Mr. Rogow: No, I don't think they're irrelevant when the purpose stated by the bar, Justice Scalia, is to protect the privacy of people at moments when they've had an accident.
Unknown Speaker: That's one purpose.
The other purpose is the decorum that's appropriate to the instrumentalities of justice.
Mr. Rogow: The State has made this argument, which basically is an image and dignity argument.
There is absolutely nothing in this record that supports the notion that truthful, nonmisleading letters sent to people, highly regulated letters, have any impact upon the administration of justice.
That's a hollow argument.
It's a shallow argument that's been made.
The lesson from Virginia Board of Pharmacy and Central Hudson is that commercial speech is of value, and if it is of value, then it must have protection.
All I hear... I hear no rule suggested by the bar.
I hear this kind of vague leave it to the States, but--
Unknown Speaker: Well, Mr. Rogow, supposing the bar were to conclude, and the Florida supreme court should agree, that this kind of solicitation gives an impression to people who receive it that lawyers are extremely greedy, and very anxious to make a lot of money.
Do you think the State or the bar has any... consistent with the First Amendment could somehow try to prevent that image from prevailing?
Mr. Rogow: --I do not think it could try to prevent that image by trying to preclude truthful, nonmisleading speech.
There are ways to try to preclude it.
President Bushnell of the ABA in this month's ABA Journal, in his president's letter, says we should address the good things that we do.
That is the high road.
The high road is to let the public know, as the bar in Florida and other States have done, that lawyers serve important purposes righting wrongs, redressing grievances, not to--
Unknown Speaker: Well, what if the Florida State Bar tries that and it just doesn't work.
People still think lawyers are greedy.
Mr. Rogow: --We have fought an image issue for a long time, Mr. Chief Justice.
It's not going to be remedied simply by precluding these letters, certainly not under the constitutional standards that have been set by this Court.
Unknown Speaker: We should probably pass a statute saying you can't say un-nice things about lawyers.
And not read Dickens or Shakespeare.
I wondered if that was them.
And not admit greedy people to practice law.
Mr. Rogow: I'm sorry, Mr. Justice Souter?
Unknown Speaker: Not admit greedy people to practice law.
Mr. Rogow: Justice Breyer--
Unknown Speaker: I'm certainly glad I never passed through the stage of being a lawyer before--
It might have helped you, actually.
The... what I wondered was this.
It seemed to me they're... a) I don't know if they're arguing this as their strongest justification, but it did make an impression upon me that a man or a woman who has just suffered a serious accident, maybe has lost a husband or a wife, is not a model of a rational consumer, and so what they're saying is, protect that person for 30 days both from harassment and so that when a choice of lawyer is made it's more rational.
You can tell them during that 30 days who's available.
You can refer them to the referral service.
You could keep big lists of people.
You could keep all the advertising material in one place and tell them, go there, but for 30 days, leave them alone so that they have a chance to make this decision more rationally.
Now, that I took it, at least to me, was a fairly powerful justification.
Now, what's wrong with it?
Mr. Rogow: --Well, Justice Breyer, grief is not the gravamen of this rule and, indeed, there are two other portions of the rule that address that.
One precludes harassment, and the other says that if a person... if a lawyer knows or should know that a person is not able to make a principled decision, then that person should not be contacted.
But remember, this rule applies to all accidents, not just the grief-stricken situation, and I think that people who are in grief need some information, too.
The suggestion that a letter, which can be discarded, and this Court has said that in both Bolger Drugs and in Shapero, the suggestion that a letter which can be discarded somehow intrudes upon that grief I think stretches the notion of this mode of communication.
Unknown Speaker: Yes, but your opponent says it's not one letter, it's a flood of letters, and as I understand it you said there's nothing in the record, and I haven't read this, but they do refer to a study that the bar made that indicated that this was regarded as a problem of some magnitude.
Mr. Rogow: The study that the bar made was made of 200 people in 1987 who apparently received direct mail letters, and something like 11 percent, or 21, said that they were offended by receiving the direct mail letters.
Now, that is not the kind of burden of proof that the bar would have to carry under Ibanez or any of the First Amendment cases dealing with this.
But even if some people are offended... and I'm sensitive to the good manners of respecting grief.
Even if they are--
Unknown Speaker: Well, do you think your client is sensitive to such matters?
Perhaps you are, Mr. Rogow, but this... now, who is it you're presently representing?
It's not a lawyer, it's some entity, as I understand--
Mr. Rogow: --It is a lawyer, Justice O'Connor.
John Blakely is a lawyer who sends direct mail advertising, and he is a plaintiff in the case along with Went For It, Inc., which is a referral service.
Unknown Speaker: --Went For It, Inc., and do you represent Went For It, Inc.?
Mr. Rogow: I do, and--
Unknown Speaker: And would you describe for us just what it is that Went For It, Inc. does in Florida to contact accident victims?
Does it study police reports and get information about any incidents and then identify the people and write letters?
Mr. Rogow: --It does not, Justice O'Connor, because as a referral agency, all it can do is identify people who may be in need of this information and then a lawyer can obtain that information from the referral service, but the referral service is bound by the same rules as the lawyer is, and that's why Went For It, Inc. is a plaintiff also in the case.
Unknown Speaker: Yes, but I... it gets information about accidents and then--
Mr. Rogow: Shares them with lawyers.
Unknown Speaker: --shares that with lawyers who send letters to these victims.
Mr. Rogow: Yes, Justice O'Connor, letters that are highly regulated by the bar that must include a statement of the lawyer's qualifications that are at the same moment--
Unknown Speaker: And what does it do?
It looks at police reports or something?
Mr. Rogow: --Police reports, accident reports, which are matters of public record.
Unknown Speaker: And presumably it also runs ads, does it?
Mr. Rogow: It does not.
It does not, no.
Unknown Speaker: Do the lawyers run some ads, do you--
Mr. Rogow: Well, some lawyers may run advertisements of different sorts, but whether or not they run an advertisement of their availability is different from running an advertisement saying, I am in the referral business.
Unknown Speaker: --The service Went For It provides is finding names of victims and furnishing them to lawyers who pay them for that information--
Mr. Rogow: Yes, Justice O'Connor.
Unknown Speaker: --is that it?
Mr. Rogow: Yes.
The commercial speech cases that we rely upon, Bates--
Unknown Speaker: Mr. Rogow, maybe you could just go back and amplify your statement that these letters are highly regulated.
Now, there isn't a form letter that the bar association gives out.
Mr. Rogow: --Well, actually, there is, Justice Ginsburg, although it's not in this record.
The bar has recently promulgated a handbook for lawyer advertising which contains forms of suggested different kinds of communications that would meet bar standards, but no, the regulation that is before the Court sets out 15 or 16, and they were summarized by the court of appeals, regulations upon the letters.
Unknown Speaker: Could... does the bar, or could it, consistent with the First Amendment, require pre-screening of letters, solicitation letters that are going to be sent out within the first 30 days, or ever?
Mr. Rogow: I don't think the bar could... could require pre-screening, and one of the problems is, is that this delay in the access to information is inconsistent with the notion that it is important for people to have information quickly, and I think that the bar agrees, and has stated in its brief, that it is important to communicate to people the availability of legal services.
But there is no pre-screening, but there is a contemporary submission.
Unknown Speaker: Not letter-by-letter, but the attorney's own form letter.
Mr. Rogow: I... perhaps the bar could request these letters and look at them.
There is a contemporary filing of each letter with the Florida Bar Advertising Commission, I think it is, so a lawyer is obligated to also send a copy of the letter after it's been out, and so the bar would have an opportunity to review these letters, but it would not be prior to the submission of these letters, to the depositing of them in the mailbox.
We rely upon the commercial speech cases which form the underpinnings of the decision below and have been consistent.
There is no reason to retreat, and the bar has really offered no principled reason to retreat from the line of cases, beginning with Virginia Board of Pharmacy, running through Central Hudson, Bates, Zauderer, RMJ, which are on the foundation that I have said, that truthful, nonmisleading information conveyed in a mode, and the mode the Court described in Shapero, the most unobtrusive mode of communication, conveyed in a mode which the bar has now even taken a step beyond and regulated and required that they be stamped with "Advertisement", that these are threatening to any substantial State interest.
Basically, the bar's argument is, is that that line of cases from Central Hudson through Ibanez should be discarded, or at least discarded as to lawyers, and that Bates, RMJ, and Zauderer were wrongly decided, and that really is the essence of what the bar is saying, and its other suggestions... the measure of an argument oftentimes is how far one must stretch to make it, and when the bar likens these lawyers' letters to sound trucks and residential picketers, trying to draw strength from residential privacy, from those kinds of analogies, I think that demonstrates how far the bar must reach to try to get around what the established jurisprudence is.
And when the bar says lawyers are like prisoners and military personnel and schoolchildren and the institutional speech cases should somehow or other be applied to lawyers, I think that, too, demonstrates how difficult the bar's case is, but it is--
Unknown Speaker: What do you refer to as the institutional speech cases, Mr. Rogow?
Mr. Rogow: --Pardon me, Mr. Chief Justice?
Unknown Speaker: You referred to the institutional speech cases.
What cases are those?
I'm not sure I know exactly what you mean.
Mr. Rogow: Kuhlmeier, Hazelwood v. School District, whether or not schoolchildren can publish things, Goldman, the yarmulke case in the military, situations in which there is custody and control in employment and property interests at stake of the Government.
I think those analogies just reach too far.
The bottom line in this case is whether truthful, nonmisleading, carefully tailored information regulated by the bar harms any substantial State interest.
Unknown Speaker: Do you think there's room for any more regulation under the commercial speech doctrine for people who are licensed by the State to carry out their duties?
It isn't as though a lawyer is a totally free agent.
The lawyer, presumably in Florida as in most States, must be licensed by the State, and the State thereby gains more control over that person than over somebody who goes into the business of selling shoes, for example.
Mr. Rogow: --It is true, Justice O'Connor, and they are more highly regulated, and yet that regulation must be delicate, because the lawyer's work informing people of their rights, remedying wrongs, redressing grievances, may be more important than selling shoes, and so it needs to be able to be communicated if it's truthful and nonmisleading, and that's exactly what this case is about.
There is no issue in this case about anything being untruthful or anything being misleading.
This information is important.
It needs to be protected.
The court of appeals decision should be affirmed.
Chief Justice Rehnquist: Thank you, Mr. Richard.
The case is submitted.
Unknown Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.
Argument of Speaker
Mr. Speaker: The opinion of the court in number 94-226 Florida Bar v. Went For It Inc. will be announced by Justice O’Connor.
Argument of Justice O'Connor
Mr. O'Connor: This case comes here on writ of Certiorari to The United States Court of Appeals for the Eleventh Circuit.
The respondents challenge rules of the Florida Bar Association that prohibit lawyers from sending targeted direct mail solicitation letters to accident victims and their relatives.
For 30 days following an accident or a disaster and fighting several of this court’s precedence the District Court held that the state bars 30 day ban was unconstitutional.
The Eleventh Circuit Court of Appeals affirmed.
In an opinion filed today, we reverse.
Under the Central Hudson Standard that we have devised for the commercial speech context, a restriction on commercial speech that does not concern unlawful activity and is not misleading, is permissible if the government asserts a substantial interest in support of its regulation establishes that the restriction directly and materially advances that interest and demonstrates that the regulation is narrowly drawn.
We believe that the Florida Bar’s short ban on targeted mailings to accident victims withstands this scrutiny under the Central Hudson Gas.
First, the Bar has substantial interests in promoting professionalism and preventing lawyers from engaging an invasive conduct during periods of grief, bereavement or injury.
Second, statistical and anecdotal data compiled by the Florida Bar suggested the Florida public to use direct mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects clearly on the legal profession.
Third, the ban scope is reasonably well tailored to its objectives.
We find it significant that the ban is limited to a 30 day period and that there are many other ways for like injured victims to learn about the availability of legal representation during that time for example, by way of Yellow Pages and other advertising and billboards and the like.
Justice Kennedy has filed a dissenting opinion which is joined by Justices Stevens, Souter and Ginsburg.