Florida Bar v. Went For It, Inc.: A Thirty-Day Bugaboo?

I.  Introduction

The issue of whether an attorney can send targeted, direct-mail solicitations to personal injury and wrongful death victims was answered in 1995 in Florida Bar v. Went For It, Inc.⁽¹⁾ with a qualified "no."⁽²⁾ In an effort to protect the aggrieved and to help derail the degradation of the legal profession's reputation, the United States Supreme Court ruled that an attorney cannot initiate solicitous, direct-mail communications with potential accident victim-clients for thirty days after an accident has engendered, even though such communications are truthful and non-deceptive.⁽³⁾ Is this short-term freedom of speech restriction alarming censorship or is it merely a bugaboo?

This Comment concentrates on the development and eventual abridgement of commercial speech as it relates to attorneys' rights to solicit business from personal injury and wrongful death victims. Following this Introduction, Part II.A undertakes a brief but important look at the origin of commercial speech.⁽⁴⁾ Surely the notion of censoring speech that does no more than propose a lawful commercial transaction should shock the conscious of any reasonable person. However, one need only look as far back as 1942 in our nation's history to the case of Valentine v. Chrestensen⁽⁵⁾ to find evidence of the Court's distaste for such speech.⁽⁶⁾ Commercial speech, in the words of the famous twentieth century comedian Rodney Dangerfield, "got no respect."⁽⁷⁾

Part II.B examines the defining United States Supreme Court cases, which propelled the Court down the slippery slope of lawyers' advertising rights;⁽⁸⁾ the impetus behind the Court's eventual construct of a commercial speech test.⁽⁹⁾ Part II.C analyzes the commercial speech test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission;⁽¹⁰⁾ the test thereafter became known as the "Central Hudson test."⁽¹¹⁾ The test, still utilized by the Court, is triggered whenever a state action intrudes upon commercial speech, an area of speech that maintains limited protection under the First and Fourteenth Amendments.⁽¹²⁾ If the particular state regulation survives the Central Hudson test, then the regulation is deemed a valid exercise of the state's regulatory power.⁽¹³⁾ Finally, Part II.D explores the seminal Supreme Court cases in the area of lawyer advertising that followed Central Hudson but preceded Florida Bar; a period of time in which the rights of a lawyer to advertise burgeoned.⁽¹⁴⁾

Part III.A.1 traces the state of the Florida law directly at issue in Florida Bar.⁽¹⁵⁾ The Supreme Court of Florida approved the Florida Bar's petition to impose a thirty-day moratorium on lawyers; whereby lawyers are restrained from using direct-mailings to solicit potential personal injury or wrongful death clients for thirty days after an accident has occurred.⁽¹⁶⁾ Eventually, the constitutionality of the thirty-day ban was challenged by a Florida attorney and his lawyer referral agency.⁽¹⁷⁾ Part III.A.2 takes a procedural look at how Florida's attorney advertising prohibition navigated its way to the United States Supreme Court.⁽¹⁸⁾ Next, Part III.B journeys into the thicket of controversy surrounding the thirty-day flat ban.⁽¹⁹⁾ Lastly, Part III.C reviews the holding of the United States Supreme Court on the issue of a state-mandated temporal ban on commercial advertising; advertising that is neither false, misleading, nor deceptive.⁽²⁰⁾ The Court was sharply divided on this issue; four justices sided with Justice O'Connor⁽²¹⁾ in support of the thirty-day ban, and three justices sided with Justice Kennedy in opposition.⁽²²⁾ Parts III.C.1⁽²³⁾ and III.C.2⁽²⁴⁾ summarize the opinions of the majority and the minority, respectively.

Part IV analyzes the majority's application of the Central Hudson test, as applied to the Florida law, to determine whether the Court's holding was proper.⁽²⁵⁾ Finally, Part V concludes with remarks on the potential impact of the Court's decision.⁽²⁶⁾

II.  Commercial Speech

 A.  The Origin

The First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech."⁽²⁷⁾ However, those 1791 guarantees were only applicable to the federal government until the 1925 case of Gitlow v. New York.⁽²⁸⁾ After Gitlow, the guarantees of "[t]he First Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment."⁽²⁹⁾

In 1942, the United States Supreme Court categorized speech into two-levels--speech that is protected by the guarantees of the First Amendment and speech that is unprotected by the guarantees of the First Amendment.⁽³⁰⁾ Under this "two-level theory of speech," the first, higher level, included speech considered worthy of constitutional protection under the First Amendment, and the second, lower level, encompassed forms of speech--such as defamation, obscenity, and "fighting words"--that are so void of social utility as to fall outside First Amendment protection.⁽³¹⁾ Specifically, in Chaplinsky v. New Hampshire,⁽³²⁾ the Court held that three areas of speech were to be afforded no constitutional protection under the First Amendment: defamation and privacy,⁽³³⁾ obscenity,⁽³⁴⁾ and "fighting words" and offensive speech.⁽³⁵⁾ In other words, these forms of speech were vulnerable to regulation by the states provided the states' statute was narrowly drafted to satisfy concerns of constitutional due process.⁽³⁶⁾

Within two months after Chaplinsky, the Court plucked the commercial speech fledgling from the safety of the First Amendment nest. Indeed, in Valentine v. Chrestensen,⁽³⁷⁾ the Court pigeonholed commercial speech into the same constitutional classification as defamation, obscenity, and "fighting words"--for it became unprotected by the guarantees of the First Amendment.⁽³⁸⁾

B.  The Development of Attorney Advertising Under Commercial Speech

In the Valentine opinion, Justice Roberts, writing for a unanimous Court, intimated for the first time that the First Amendment provided no protection to advertising and other forms of commercial speech.⁽³⁹⁾ In this case, F. J. Chrestensen, respondent, was found to have violated § 318 of New York City's Sanitary Code when he attempted to distribute his message in the form of a handbill to passersby on city streets.⁽⁴⁰⁾ The Court avowed that "the Constitution imposes no . . . restraint on government [with] respect[] [to] purely commercial advertising."⁽⁴¹⁾

After Valentine, commercial speech arguably became a Venus's flytrap for every peddler--from the snake oil salesman to the legitimate businessman--because the Supreme Court neglected to define commercial speech and, more importantly, deferred its interpretation to "legislative judgment."⁽⁴²⁾ Consequently, the ensuing three decades left commercial speech wallowing in an abyss of confusion.⁽⁴³⁾ Finally, in 1976 in the case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,⁽⁴⁴⁾ the Supreme Court repudiated its commercial speech position taken in Valentine.

In Virginia State Board of Pharmacy, Appellees, consumers of prescription drugs, petitioned the Court to permit licensed pharmacists to advertise prescription drug prices. Such advertisement had been a direct violation of a Virginia statute prohibiting the exercise thereof.⁽⁴⁵⁾ Unlike past questions before the Court involving the breadth of commercial speech, wherein the Court artfully dodged "the precise extent to which the First Amendment permits regulation of advertising that is related to activities the State may legitimately regulate or even prohibit,"⁽⁴⁶⁾ the Supreme Court, for the first time, purposely confronted "the question [of] whether there is a First Amendment exception for `commercial speech.'"<sup>(47)</sup> The Court explicitly answered no.<sup>(48)</sup> Speech, the Court held, "which does `no more than propose a commercial transaction'"⁽⁴⁹⁾ is not so removed from any "`exposition of ideas'"<sup>(50)</sup> 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."⁽⁵¹⁾

The opinion, written by Justice Blackmun, stated that commercial speech, even if disseminated for purely economic reasons, is protected under the guarantees of the First Amendment.⁽⁵²⁾ The public, the Court opined, has a personal stake in keeping the commercial windpipe of information free from obstructions because the regurgitation of information, "however tasteless and excessive," educates the masses, the lifeline of our free market economy.⁽⁵³⁾ Indeed, the Court noted that there may be circumstances in which an individual's interest in an unregulated flow of commercial announcements "may be as keen, if not keener by far, than his interest in the day's most urgent political debate."⁽⁵⁴⁾ Notwithstanding, Justice Blackmun expressed the Court's unwillingness to grant commercial speech absolute First Amendment protection.⁽⁵⁵⁾ States, he wrote, may regulate commercial speech to the extent of "insuring that the stream of commercial information flow cleanly as well as freely."⁽⁵⁶⁾ The majority opinion made clear that its holding was limited to advertising by pharmacists and did not extend to other professions because "[p]hysicians and lawyers, [unlike pharmacists,] . . . 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."⁽⁵⁷⁾

Following Virginia State Board of Pharmacy, commercial speech was neither wholly outside nor entirely within the protection of the First Amendment, and, thus could have been reasonably regulated by the states.⁽⁵⁸⁾ Indeed, states were able to regulate the time, place, and manner of commercial speech as long as the particular regulations (1) were content neutral; (2) "serve[d] a significant governmental interest"; and (3) provided alternative means for communication.⁽⁵⁹⁾ Moreover, since the First Amendment had never afforded refuge to fraudulent, deceptive, or misleading messages,⁽⁶⁰⁾ or to advertisements for a criminal purpose, states were free to regulate these low-value forms of speech without awakening the guarantees of the First Amendment.⁽⁶¹⁾

One term later, in Bates v. State Bar of Arizona,⁽⁶²⁾ the Supreme Court announced that "truthful advertisement concerning the availability and terms of routine legal services" survived First Amendment scrutiny.⁽⁶³⁾ In Bates, the Arizona State Bar filed a complaint against the appellants, John R. Bates and Van O'Steen, for allegedly violating a disciplinary rule⁽⁶⁴⁾ for placing an advertisement soliciting legal business⁽⁶⁵⁾ in a local Arizona newspaper.⁽⁶⁶⁾ Appellants argued, "among other things, that the disciplinary rule . . . infringed their First Amendment rights."⁽⁶⁷⁾ The majority held in favor of appellants, finding the substance of their message to be legitimate and, hence, within the scope of First Amendment protection.⁽⁶⁸⁾

The then-Justice Rehnquist,⁽⁶⁹⁾ in sharp opposition to the majority, wrote:

[T]he First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services. I would hold quite simply that the appellants' advertisement, however truthful or reasonable it may be, is not the sort of expression that the Amendment was adopted to protect.⁽⁷⁰⁾

Indeed, it would be Chief Justice Rehnquist, along with four other justices, who would later vote to uphold a state regulation aimed at curbing attorney advertising.⁽⁷¹⁾

Within a year of Bates, the Supreme Court extended a lawyer's right to advertise his or her services to a prospective client in Ohralik v. Ohio State Bar Ass'n.⁽⁷²⁾ In Ohralik, the Court addressed one of the questions "expressly reserved" by Bates;⁽⁷³⁾ that is, to what extent can "in-person solicitation of clients--at the hospital room or the accident site, or in any other situation that breeds undue influence--by attorneys or their agents or `runners'"⁽⁷⁴⁾ be regulated?⁽⁷⁵⁾

Albert Ohralik, a member of the Ohio Bar, approached two young female accident victims to solicit employment; one while she lay recuperating in her hospital room, the other at her home soon after she had been discharged from the hospital.⁽⁷⁶⁾ Ohralik convinced both women to agree to a contingent fee arrangement whereby Ohralik would serve as their lawyer in exchange for one-third of their recovery.⁽⁷⁷⁾ Later, both women attempted to discharge Ohralik from representing them.⁽⁷⁸⁾ Subsequently, both women filed complaints against Ohralik, which lead to Ohralik being sanctioned by the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio for violating the anti-solicitation provisions⁽⁷⁹⁾ of the Ohio Code of Professional Responsibility.⁽⁸⁰⁾ Ohralik took the position that in-person solicitation of clients, to inform clients "of their legal rights and of the availability of a lawyer to pursue their claims," is no different from lawyers who solicit clients using the newspaper.⁽⁸¹⁾ Consequently, in-person solicitation, Ohralik argued, should be afforded the constitutional protection set forth in Bates.⁽⁸²⁾

Justice Powell, delivering the opinion for the Court, also agreed that in-person solicitation serves a similar purpose to newspaper advertisement in that both "impart[] . . . certain information about [the attorney's] availability and the terms of [the attorney's] proposed legal services."⁽⁸³⁾ The majority, however, was quick to point out that substantial disparities also exist between these two methods of advertising. "Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection."⁽⁸⁴⁾

The Court noted that "the State has a legitimate and indeed `compelling' interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of `vexatious conduct.'"⁽⁸⁵⁾ Indeed, "the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person."⁽⁸⁶⁾ Moreover, "in-person solicitation is not visible or otherwise open to public scrutiny. Often there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place."⁽⁸⁷⁾ The aforementioned concerns gave the Court reason to hold that a state may employ "prophylactic regulation in furtherance of the State's interest in protecting the lay public."⁽⁸⁸⁾ In other words, in-person solicitation by a lawyer for pecuniary gain, replete with possibilities for vexatious misgivings, "falls within the State's proper sphere of economic and professional regulation."⁽⁸⁹⁾

In the companion case to Ohralik, In re Primus,⁽⁹⁰⁾ the Court held that a state could not discipline a cooperating lawyer of the American Civil Liberties Union (ACLU) for writing a follow-up letter⁽⁹¹⁾ to an aggrieved individual, whom the attorney had previously consulted in-person.⁽⁹²⁾ Indeed, the letter at issue merely offered the recipient of the letter free legal services from the ACLU.⁽⁹³⁾ In his decision, Justice Powell, writing for the majority, concluded that the facts and circumstances surrounding the in-person meeting and the subsequent letter, the "centerpiece of this litigation,"⁽⁹⁴⁾ involved none of the substantive evils that justify a state's right to regulate the solicitation activities of attorneys.⁽⁹⁵⁾ Thus, in order for a state to enact legislation to restrict commercial speech, such legislation must be "narrowly drawn" to extend no further than the interest it serves.⁽⁹⁶⁾

After In re Primus, the next meaningful commercial speech case decided by the Court did not involve lawyer advertising. However, the significance of Central Hudson lies in the commercial speech test set forth by the Court.⁽⁹⁷⁾ If the challenged commercial speech regulation fails any part of the Central Hudson test, then the particular state regulation will be struck down as being an unwarranted infringement upon the rights guaranteed under the First Amendment.⁽⁹⁸⁾

C.  The Central Hudson Test for Commercial Speech

In a 1980 decision authored by Justice Powell, the Court fashioned a four-part test to be used when determining the constitutionality of state actions aimed at controlling commercial speech.⁽⁹⁹⁾ At issue in the case was a mandate from the New York Public Service Commission banning all electric utilities in the State from publicizing advertisements, which promote electricity usage.⁽¹⁰⁰⁾ The basis for the prohibition was to conserve energy to meet the upcoming winter fuel demands.⁽¹⁰¹⁾ Appellant, Central Hudson, challenged the ban as a restraint on "commercial speech in violation of the First and Fourteenth Amendments."⁽¹⁰²⁾

The Court devised a four-question test for determining whether a state's regulation of commercial speech passes First Amendment muster: (1) Is the expression protected by the First Amendment in that the expression is not false, fraudulent, misleading, deceptive, or criminal? (2) Is there a substantial governmental interest involved in regulating the particular speech that is protected by the First Amendment? (3) Does the regulation advance the asserted governmental interest? and (4) Is the regulation no more extensive than necessary to achieve the governmental interest asserted?⁽¹⁰³⁾ Indeed, the Central Hudson Court had developed an "intermediate level of scrutiny" whereby "suppression [of commercial speech] is permitted whenever it `directly advances' a `substantial' governmental interest and is `not more extensive than is necessary to serve that interest."⁽¹⁰⁴⁾ Thus, if the Court answers each of the four questions in the affirmative, then the particular speech restriction regulation is deemed to be a valid exercise of a state's regulatory power.⁽¹⁰⁵⁾

Applying the four-part test to the advertising regulation at issue in the instant case, Justice Powell held that the Commission's flat ban on advertising survived parts one, two, and three of the examination.⁽¹⁰⁶⁾ As for part four, the Court found the ban to be "more extensive than necessary to further the State's interest in energy conservation" because it "suppress[ed] information about electric devices or services that would cause no net increase in total energy use."⁽¹⁰⁷⁾ In fact, the majority explained that when a regulation is aimed at suppressing speech, "the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement."⁽¹⁰⁸⁾ Thus, because the regulation failed one of the prongs set forth in the Central Hudson test, the regulation was struck down.⁽¹⁰⁹⁾

Subsequent to the Central Hudson test, whenever a state enacts a statute under its police power⁽¹¹⁰⁾ that impacts upon commercial speech and the statute is challenged as impinging upon the First Amendment, the Court will scrutinize the challenged regulation using the Central Hudson test. In order to survive the Central Hudson test, the particular state action must clear each of the four judicially created hurdles.⁽¹¹¹⁾

D.  Post-Central Hudson Lawyer Advertising Regulations

The first significant case involving attorney advertising rights to come before the Court, after Central Hudson, was the 1982 case of In re R.M.J.⁽¹¹²⁾ The Committee on Professional Ethics and Responsibility of the Supreme Court of Missouri, in response to the Bates decision,⁽¹¹³⁾ revamped its attorney advertising policy so that lawyer advertising was restricted to three forms of print and ten categories of information.⁽¹¹⁴⁾

The individual attorney, appellant, in the case advertised in the local newspapers and the yellow pages.⁽¹¹⁵⁾ Although the attorney utilized the appropriate advertising outlets, his message was deemed to violate the Missouri disciplinary rules, thereby causing the attorney to be sanctioned by the Missouri Supreme Court.⁽¹¹⁶⁾ Specifically, appellant advertised that he was licensed to practice law in Missouri and Illinois and before the United States Supreme Court; he listed areas of practice other than those proscribed by the Advisory Committee; he failed to include the requisite disclaimer in violation of DR 2-101(B); and he mailed announcements to persons other than those proscribed under DR 2-102(A)(2).⁽¹¹⁷⁾ In response, the appellant challenged the constitutionality of the advertising restraints as a violation of his First Amendment right.⁽¹¹⁸⁾

In the unanimous opinion written by Justice Powell, the Court upheld the attorney's advertisements as a valid exercise of his First Amendment right to the free exercise of speech.⁽¹¹⁹⁾ The Court stated that in the area of advertising professional services, the First Amendment protects truthful, non-misleading, non-deceptive advertising.⁽¹²⁰⁾ If a particular advertisement is misleading, a state may restrict the message, but only to the extent that the state-imposed regulation prevents the "deception and confusion."⁽¹²¹⁾ That is, the state action "may be no broader than reasonably necessary to prevent" the perceived evil.⁽¹²²⁾

The majority did, however, caution that advertising by professionals posed special risks of deception due to inherent ideologies of a target audience,⁽¹²³⁾ the "absence of any standardization" of professional services, and "the limited ability of the professions to police themselves."⁽¹²⁴⁾ Concerned that some forms of advertising pose a greater risk of consumer deception than others, the Court reiterated its belief that regulations are proper for "special risk" advertisements to protect the lay-person.⁽¹²⁵⁾

After In re R.M.J., an attorney may advertise his or her areas of practice via general mailings, newspapers, and telephone directories as well as by announcements mailed to target groups.⁽¹²⁶⁾ A state, however, is not without rights. The state may require the attorney to set forth a disclaimer within his or her advertisement informing the audience that the attorney's listed areas of practice are not claims of any certification of experience.⁽¹²⁷⁾ The state may also demand that the particular advertisement disclose the attorney's fee arrangements.⁽¹²⁸⁾

The 1985 case of Zauderer v. Office of Disciplinary Counsel⁽¹²⁹⁾ was the next meaningful link in the chain of attorney-solicitation rights.⁽¹³⁰⁾ Zauderer, an attorney practicing in Ohio, placed an advertisement⁽¹³¹⁾ in numerous Ohio newspapers offering his legal services to women injured as a result of using the Dalkon Shield Intrauterine Device.⁽¹³²⁾ Subsequent to the running of these advertisements, the Office of Disciplinary Counsel filed a complaint against Zauderer alleging that his actions violated various Disciplinary Rules.⁽¹³³⁾

Using its "general approach to restrictions on commercial speech,"⁽¹³⁴⁾ the Court addressed the first factor of whether the particular advertisement was in any way inherently misleading.⁽¹³⁵⁾ The Court noted that the Office of Disciplinary Counsel stipulated that the contents of Zauderer's advertisements were neither false nor misleading.⁽¹³⁶⁾ Indeed, the advertisements merely "reported the indisputable fact that the Dalkon Shield ha[d] spawned an impressive number of lawsuits[,] . . . advised readers that appellant was currently handling such lawsuits[,]" and disclosed that Zauderer "was willing to represent other women asserting similar claims."⁽¹³⁷⁾

The Court then moved to the second factor of whether Ohio's commercial speech restriction directly advanced a substantial state interest.⁽¹³⁸⁾ The State of Ohio maintained that the Ohralik Court's justifications for upholding a prophylactic rule on in-person solicitation by lawyers applied with equal force in the instant case.⁽¹³⁹⁾ In the alternative, the State of Ohio maintained that lawyer advertising, albeit neither false nor deceptive, stirs up meritless litigation.⁽¹⁴⁰⁾ Ohio argued, therefore, that it had a legitimate state interest to impose a flat ban to combat this evil.⁽¹⁴¹⁾

The Court, however, distinguished face-to-face solicitation from print advertisement.⁽¹⁴²⁾ The former, it stated, is fraught "with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud, [which] . . . presents unique regulatory difficulties;" while the latter is more of an arms-length communication "lack[ing] the coercive force of the personal presence of a trained advocate."⁽¹⁴³⁾ In addition, the Court dismissed "the traditional justification for restraints on solicitation--the fear that [the individual attorney's advertisement may] `stir up litigation.'"⁽¹⁴⁴⁾ The mere fact that additional lawsuits may ensue from the reading of a lawyer's advertisement does not justify a state's suppression of the proposed advertisement. To do so would be to deny "citizens accurate information about their legal rights."⁽¹⁴⁵⁾

Accordingly, the Court concluded that Ohio's concerns surrounding print advertisements were not comparable to the dubious misgivings associated with in-person solicitation.⁽¹⁴⁶⁾ Thus, the Court held that an attorney's printed message may provide "truthful and nondeceptive information and advice regarding the legal rights of potential clients."⁽¹⁴⁷⁾

Finally, the Court addressed Ohio's requirement that attorneys who advertise a contingent fee structure must also disclose in the same advertisement that the clients are liable for certain costs even if they lose.⁽¹⁴⁸⁾ In finding for Ohio on this particular issue, the Court pointed out that the State of Ohio, by enforcing the particular rule in question, did not attempt to preclude the individual attorney from advertising his or her services but rather was attempting "to prescribe what shall be orthodox in commercial advertising."⁽¹⁴⁹⁾ In other words, a state may require lawyers to include in their printed message information concerning a client's potential liability for costs incurred by the attorney in representing the client even if the lawyer is unsuccessful in obtaining a judgment in favor of the client.⁽¹⁵⁰⁾

To avoid any misinterpretation, the Court emphasized that its decision to uphold Ohio's disclosure requirement in no way precludes all disclosure requirements from First Amendment scrutiny.⁽¹⁵¹⁾ That is, the Court "recognize[d] that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But . . . an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers."⁽¹⁵²⁾

Three years after Zauderer, the Court, in the 1988 case of Shapero v. Kentucky Bar Ass'n,⁽¹⁵³⁾ addressed the question of whether Kentucky could prohibit lawyers from sending truthful, nondeceptive targeted direct-mail solicitations to potential clients for pecuniary gain.⁽¹⁵⁴⁾ Richard Shapero, a member of the Kentucky Bar, wanted to mail letters "`to potential clients who have had a foreclosure suit filed against them.'"⁽¹⁵⁵⁾ Unsure of whether the contemplated act was ethically allowable, Shapero sought approval from the Kentucky Attorney's Advertising Commission.⁽¹⁵⁶⁾ Although the proposed letter was neither "false" nor "misleading," the Kentucky Attorney's Advertising Commission "declined to approve petitioner's proposal" because it violated Kentucky Supreme Court Rule 3.135(5)(b)(i);⁽¹⁵⁷⁾ the Kentucky Supreme Court upheld the Commission's ruling.⁽¹⁵⁸⁾

In reversing Kentucky Supreme Court's decision, the United States Supreme Court ruled that states may not, consistent with the First Amendment, categorically ban attorneys from sending solicitous truthful and non-deceptive letters to potential clients regardless of whether the motive behind the communication is for purely pecuniary reasons.⁽¹⁵⁹⁾ Moreover, the Court stated, the First Amendment does not support a prohibition on speech merely because it is a more efficient vehicle to reach the messenger's audience.⁽¹⁶⁰⁾ Justice Brennan, writing for the Court, analogized Shapero's targeted letters to print advertising and stated that both "`pose[ ] much less risk of overreaching or undue influence' than does in-person solicitation."<sup>(161)</sup> In addition, "[n]either mode of written communication involves `the coercive force of the personal presence of a trained advocate' [n]or the `pressure on the potential client for an immediate yes-or-no answer to the offer of representation.'"<sup>(162)</sup> Furthermore, "the recipient of a letter and the `reader of an advertisement . . . can "effectively avoid further bombardment of [his or her] sensibilities simply by averting [his or her] eyes."'"⁽¹⁶³⁾ Lastly, Justice Brennan noted that both forms of written communications can, unlike an in-person attorney solicitation, "readily be put into a drawer to be considered later, ignored, or discarded. . . . [That is, they] `conve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney.'"⁽¹⁶⁴⁾ The Court concluded, consistent with the First Amendment, that Kentucky could not categorically prohibit attorneys from target mail advertising for pecuniary gain.⁽¹⁶⁵⁾

The Court was careful not to extend this reasoning to personalized letters.⁽¹⁶⁶⁾ Acknowledging that the use of personalized letters, unlike targeted mail, "presents an increased risk of deception, intentional or inadvertent. . . . [and may, in some] circumstances, lead the recipient to overestimate the lawyer's familiarity with the case or could implicitly suggest that the recipient's legal problem is more dire than it really is."⁽¹⁶⁷⁾

Shapero stands for the proposition that a state may not place a total suppression on truthful, non-deceptive, direct-mail solicitations by lawyers.⁽¹⁶⁸⁾ This holding, however, left open the possibility that the state could implement more carefully drawn restrictions.

Thus, the Supreme Court, in a long line of cases beginning with Bates v. State Bar of Arizona, continuously relaxed the restrictions placed on attorney advertising; that is, until Florida Bar v. Went For It, Inc. Indeed, Bates and its progeny significantly lowered many of the advertising hurdles that once confronted attorneys without sacrificing the level of professionalism and respect that many on the high bench have fought to maintain; specifically providing: (1) States may not prevent attorneys from using newspapers as a media for truthfully advertising the cost of routine legal services;⁽¹⁶⁹⁾ (2) States may enforce a blanket ban on in-person solicitation by attorneys when the impetus for the contact is purely financial;⁽¹⁷⁰⁾ (3) States may not prohibit in-person solicitation by attorneys when the purpose is not motivated by pecuniary gain;⁽¹⁷¹⁾ (4) Although States may not outlaw an attorney from placing a truthful, non-deceptive biography (e.g., name, address, areas of practice) in newspapers or telephone directories, or from sending out general mailings or announcements to a target audience, states may impose reasonable restrictions on attorney advertising to prevent misleading statements;⁽¹⁷²⁾ (5) States may not prevent attorney advertisement that "stir[s] up litigation" and may not discipline an attorney for using "accurate and nondeceptive" illustrations in the advertisement. But states can require the attorney to disclose his or her fee arrangements when rationale for the disclosure requirement is grounded in preventing consumer deception;⁽¹⁷³⁾ and (6) States may not categorically prohibit truthful targeted, direct-mail solicitation by attorneys to clients known to face certain legal dilemmas.⁽¹⁷⁴⁾

III.  Statement of the Case

A.  Historical Facts

1.  State of the Law

In 1987, the Florida Bar commissioned a two-year study to ascertain what effects lawyer advertising had on the public's perception of lawyers.⁽¹⁷⁵⁾ Responding to the results from hearings and surveys,⁽¹⁷⁶⁾ the Florida Bar petitioned the Supreme Court of Florida to amend the rules governing lawyer advertising.⁽¹⁷⁷⁾ Although the Florida Bar's petition proposed several amendments to the rules,⁽¹⁷⁸⁾ only two of the Court's adopted amendments are at issue in this Comment--Rules 4-7.4(b)(1)⁽¹⁷⁹⁾ and 4-7.8(a),⁽¹⁸⁰⁾ which apply to the thirty-day ban and to lawyer referral services, respectively.

The Florida Supreme Court, using the United States Supreme Court's earlier decisions in Shapero⁽¹⁸¹⁾ and Peel⁽¹⁸²⁾ as guideposts, concluded that it lacked the authority to order a flat ban on all direct mail solicitation⁽¹⁸³⁾ to victims or their families "involved in personal injury and wrongful death claims, as set out in rule 4-7.4(b)(1)."⁽¹⁸⁴⁾ Indeed, the court narrowly interpreted Shapero and Peel to mean that only a total prohibition on target mail advertising is unconstitutional.⁽¹⁸⁵⁾ The court opined, however, that a "constitutional[] restrict[ion]" on advertising by mail is within its adjudicatory powers.⁽¹⁸⁶⁾ To this end, the court stepped into the shoes of rule-maker and fashioned its own modification to the proposed amendment "by directing that any mail advertising pertaining to personal injury and wrongful death claims shall be mailed no earlier than thirty days after the incident which precipitated the claim."⁽¹⁸⁷⁾

Consequently, when Rule 4-7.4(b)(1) is read in conjunction with Rule 4-7.8(a), a lawyer is not permitted to initiate communications, "directly or indirectly," with accident or disaster victims or their families for the purpose of soliciting legal business within thirty days from the date of the accident.⁽¹⁸⁸⁾ Thus, the restrictions imposed by Rule 4-7.4(b)(1) are "imputed to lawyer referral services through Rule 4-7.8[(a)]."⁽¹⁸⁹⁾ The new rules took effect on January 1, 1991.⁽¹⁹⁰⁾

2.  Case History

G. Stewart McHenry, a member of the Florida Bar and the owner of Went For It, Inc., a lawyer referral service, regularly used direct mail as a means to solicit legal business from personal injury and wrongful death victims.⁽¹⁹¹⁾ Florida's new rule ordering a thirty-day moratorium on targeted mail advertising adversely impacted McHenry's business because in the normal course of business, but for this prohibition, letters would have been mailed to accident victims within thirty days of the accident.⁽¹⁹²⁾

Accordingly, in 1992, plaintiffs McHenry⁽¹⁹³⁾ and his wholly-owned corporation, Went For It, Inc.,⁽¹⁹⁴⁾ filed a cause of action for "declaratory and injunctive relief in the United States District Court for the Middle District of Florida" against defendants Florida Bar and Susan V. Bloemendaal, Assistant Staff Attorney of the Florida Bar.⁽¹⁹⁵⁾ Plaintiffs sought to enjoin the enforcement of Rules 4-7.4(b)(1)(A) and 4-7.8(a) and to declare the rules an unconstitutional restriction on commercial speech in violation of the First, Fifth,⁽¹⁹⁶⁾ and Fourteenth Amendments to the Constitution.⁽¹⁹⁷⁾

The district court referred the case to the Honorable Charles R. Wilson, United States Magistrate Judge, who found, as a matter of law, Rules 4-7.4(b)(1)(A) and 4-7.8(a) to be constitutional.⁽¹⁹⁸⁾ The Magistrate Judge recommended that the district court grant summary judgment⁽¹⁹⁹⁾ in favor of the Florida Bar.⁽²⁰⁰⁾

Ironically, the district court rejected the Magistrate Judge's report and recommendation, instead holding as a matter of law that Rule 4-7.4(b)(1)(A) violated the guarantees afforded attorney advertising under the First, Fifth, and Fourteenth Amendments.⁽²⁰¹⁾ The court reasoned that the thirty-day chilling period "substantially impair[s] and impede[s] the availability of truthful and relevant information which can make a positive contribution to consumers in need of such legal services."⁽²⁰²⁾ The court's decision was grounded in the notion "`that disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information.'"<sup>(203)</sup> Since, "`[a] principal reason why consumers do not consult lawyers is because they do not know how to find a lawyer able to assist them with their particular problems,'" attorney advertising serves as a valuable mechanism for informing consumers of their legal rights and where to find legal representation.⁽²⁰⁴⁾ Accordingly, summary judgment was granted in favor of Went For It, Inc.⁽²⁰⁵⁾

The Florida Bar appealed the decision to the Eleventh Circuit Court of Appeals.⁽²⁰⁶⁾ The court of appeals affirmed, on similar grounds, the district court's decision to grant summary judgment in favor of Went For It, Inc.⁽²⁰⁷⁾ Subsequently, the Supreme Court of the United States granted Florida Bar's petition for writ of certiorari.⁽²⁰⁸⁾

B.  Skirmish Over the Thirty-Day Prohibition

1.  Arguments in Favor of a Thirty-Day Ban

Proponents of the waiting period stress that the findings of the Florida Bar's study⁽²⁰⁹⁾ are indicative of society's negative perception of lawyers who utilize targeted, direct-mailings to solicit business.⁽²¹⁰⁾ They also claim that lawyers using this media outlet severely undermine the dignity of the profession.⁽²¹¹⁾ Further, proponents argue that states have a substantial interest in preserving "public confidence in the administration of justice."⁽²¹²⁾ They argue that commercial speech is "linked inextricably" with the commercial transaction being proposed.⁽²¹³⁾ Thus, in their opinion, a state's interest in regulating the underlying commercial activity confers a concomitant right upon the state to regulate the commercial expression.⁽²¹⁴⁾ Proponents argue, therefore, that a state may constitutionally restrict a lawyer's message as long as the regulation is narrowly drawn to serve a legitimate state interest.⁽²¹⁵⁾

Proponents of the thirty-day moratorium also insist that the ban be sustained for policy reasons grounded in the notion that a state has a duty to insulate grief-stricken victims of personal injury and wrongful death accidents from an onslaught of intrusive lawyer panhandling.⁽²¹⁶⁾ They stress that individuals, inside the home, are entitled to the most protection against the bombardment of intrusive lawyer solicitation because the home, in their opinion, is sacrosanct.⁽²¹⁷⁾

Finally, proponents of the chilling period contend that the prohibition is constitutional because it is a valid time, place, or manner restriction on speech.⁽²¹⁸⁾ States may place a reasonable time, place, or manner restriction on speech protected under the Constitution providing the restriction is: (1) content-neutral;⁽²¹⁹⁾ (2) "narrowly tailored"⁽²²⁰⁾ to serve a significant State interest; and (3) fashioned such that alternative channels for speech remain open and available.⁽²²¹⁾ The advertising ban, proponents claim, is not directed at the lawyer's message per se, rather the ban is intended to protect the recipient during a very emotional period.⁽²²²⁾ The rule, they assert, is narrowly drawn because the prohibition ceases after thirty days, and it is directed at only one facet of speech--targeted, direct mailings.⁽²²³⁾ Lastly, proponents maintain that during this thirty-day hiatus, lawyers are not without alternative avenues of communication; "`billboards . . . , radio, television and recorded messages the public may access by dialing a telephone number'" remain viable alternatives.⁽²²⁴⁾

2.  Arguments in Opposition of a Thirty-Day Ban

Opponents of the Florida ban argue that the prohibition is content-based rather than content-neutral and thus violates the first prong of any permissible time, place, or manner restriction on speech.⁽²²⁵⁾ That is, they claim that a regulation devoid of content neutrality, the sine qua non for a valid time, place, or manner restriction on speech, cannot survive a constitutional attack.⁽²²⁶⁾ Further buttressing their position that the rule is content specific, opponents question how a wrongful death claimant, the grieving individual in dire need of protection under the thirty-day rule, is somehow emotionally fit to receive a probate lawyer's letter during this same thirty-day moratorium.⁽²²⁷⁾ Yet, that same individual under the Florida rule cannot bear the thought of opening his or her mailbox to find a letter advertising an attorney's willingness to provide legal representation.⁽²²⁸⁾

Opponents of the Florida ban also stress the unintrusive, non-coercive nature of an attorney's solicitous letter.⁽²²⁹⁾ Lawyers, they point out, are required under a Florida statute to clearly mark their direct-mailing envelopes with the word "advertisement" in red ink to sufficiently forewarn the recipients that the contents of the envelopes are of a solicitous nature.⁽²³⁰⁾ Duly alerted to the advertisement, the recipient, according to opponents, can choose to open the letter, set it aside to be read later, or simply discard the material.⁽²³¹⁾ Opponents also maintain that targeted letters do not invade the privacy of lamenting individuals, rather "[t]he invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery."⁽²³²⁾ Direct mailings, opponents contend, are indeed valuable to those most in need of legal assistance because they direct the victim to people who can provide them with legal counseling.⁽²³³⁾ In addition to furnishing the victim with a place to go for legal services, opponents assert that targeted mailings supply recipients with prompt, useful notification that their legal rights have been infringed upon⁽²³⁴⁾ and help to caution them to preserve evidence for a trial, if necessary.⁽²³⁵⁾

Furthermore, opponents of the thirty-day ban are not persuaded that the dignity of the legal profession is compromised by direct-mail solicitation.⁽²³⁶⁾ In fact, opponents point out that since the Bates decision, less than one percent of the reported disciplinary cases against Florida attorneys involved lawyer advertising.⁽²³⁷⁾ Also, according to opponents, there is no evidence to support the notion that thirty days is the quintessential time frame whereby the aggrieved have healed, the misleading letters have ceased to be imposing, and the public's perception of lawyers has been forestalled.⁽²³⁸⁾ Thus, opponents argue that the rule must be eradicated.⁽²³⁹⁾

C.  The Supreme Court's Holding

1.  Majority's Opinion

Justice O'Connor, delivering the opinion of the Court in 1995, with whom Chief Justice Rehnquist and Justices Scalia, Thomas, and Breyer joined, upheld the Florida Rule forbidding lawyers from the solicitous behavior of direct-mailing personal injury or wrongful death victims and their families within thirty days of an accident.⁽²⁴⁰⁾ Mindful that the First Amendment provides limited protection to commercial expressions of this type, which are neither misleading nor unlawful, the Court analyzed the Florida Rule under the standards set forth in Central Hudson using an "intermediate" level of scrutiny.⁽²⁴¹⁾

For Justice O'Connor, the Central Hudson framework consisted of just three related prongs that need summoning only if the expression being regulated is protected by the First Amendment.⁽²⁴²⁾ That is, Justice O'Connor artificially bifurcated the well-established Central Hudson four-part analysis by detaching and separately addressing the first prong from the three remaining prongs.⁽²⁴³⁾ Clearly, once an expression is adjudged to lack protection under the First Amendment, the inquiry ends and any additional judicial analysis is superfluous.⁽²⁴⁴⁾ In other words, if the commercial message is based on half-truths and lies, then First Amendment guarantees are not at issue. The state may therefore regulate the speech, and thus, it becomes pointless to wander down Justice O'Connor's three-part Central Hudson path.⁽²⁴⁵⁾

Relying on Bates and its progeny,⁽²⁴⁶⁾ the Court found that Florida had a substantial interest in curtailing the expression--to protect the privacy and tranquility of the traumatized during moments of emotional frailty and to curb activities corrosive to the integrity of and confidence in the legal profession.⁽²⁴⁷⁾ Validating the penultimate prong of Central Hudson, the Court stated that the purpose of the regulation materially and directly advanced Florida's interest in both safeguarding the solitude of accident victims and bolstering Floridians' perception of the legal profession by instituting a ban on direct-mail solicitation by lawyers for thirty days after an accident has engendered.⁽²⁴⁸⁾ Granted, the jettisoning of the lawyer's mailed message into the trash upon receipt may obviate the pernicious encroachment upon a grieving soul; however, it does nothing to forestall the spite one may feel toward a profession that puts its imprimatur on this type of offensive intrusion.⁽²⁴⁹⁾ Lastly, the majority found that the means (the Florida rule) justified the end (insulating the victims from lawyers' intrusive direct-mail pandering and ameliorating consumer confidence in the legal profession).⁽²⁵⁰⁾

Justice O'Connor observed that the Florida rule was neither overinclusive⁽²⁵¹⁾ nor stifling.⁽²⁵²⁾ That is, the Court found that the rule was not overinclusive even though the thirty-day ban attaches to all personal injury or wrongful death occurrences, irrespective of the gravity involved.⁽²⁵³⁾ Grief, the Court opined, is very subjective, and thus, it would be difficult to fashion a rule that distinguished among injured Floridians based on "the severity of their pain or the intensity of their grief."⁽²⁵⁴⁾ Nonetheless, the Court was persuaded that the "Bar's rule is reasonably well-tailored" to effectuate Florida's interest in a material and direct manner.⁽²⁵⁵⁾ The Court also found that the Florida rule was not stifling because it was not excessively restrictive in that the Bar's rule is merely a brief respite immediately following an accident during which time an attorney is prohibited from pursuing victims of accidents via direct-mail solicitation.⁽²⁵⁶⁾ In addition, the rule in no way precludes a resourceful attorney from using alternative channels of communication during this ephemeral interlude to capture his or her audience.⁽²⁵⁷⁾ Accordingly, the Bar's rule, in the majority's opinion, was narrowly drafted to impinge no more than reasonably necessary to achieve Florida's intended purpose.⁽²⁵⁸⁾ The Court concluded that "Florida's short temporal ban" survived dissection under the Central Hudson test; ergo, the Rule did not violate attorneys' free speech rights under the First Amendment.⁽²⁵⁹⁾

2.  Dissenting Opinion

Joining Justice Kennedy in his dissenting opinion and calling the Florida rule "censorship pure and simple," and an abridgement of information vital to one in need of legal aid, were Justices Stevens, Souter, and Ginsburg.⁽²⁶⁰⁾ Like the majority, the dissent superimposed Florida's thirty-day ban onto the Central Hudson test; however, unlike the majority, the dissent did not find a fit.⁽²⁶¹⁾

Despite the apocalyptic anecdotes advanced by the majority,⁽²⁶²⁾ the dissent argued that the holding from Shapero controlled the outcome of this dispute.⁽²⁶³⁾ Shapero, the dissent maintained, stood for the proposition that targeted mailings by lawyers involve none of the misgivings inherent in direct in-person solicitation--"overreaching and undue influence"--and thus was accorded the protection of the First Amendment.⁽²⁶⁴⁾ Moreover, the dissent was neither impressed nor persuaded by the one-hundred-plus-page summary on lawyer advertisement and societal perceptions thereof submitted by the petitioner and praised by the majority as being "`noteworthy for its breadth and detail."'⁽²⁶⁵⁾ Indeed, the dissent found the study to be both incomplete and misleading.⁽²⁶⁶⁾ Lastly, Justice Kennedy wrote, the Florida rule "prohibits far more speech than necessary to serve the purported state interest."⁽²⁶⁷⁾ Admittedly, alternative channels of communication offer lawyers a forum in which to voice their messages and to allow knowledgeable recipients a means from which to download information.⁽²⁶⁸⁾ The ban, however, strikes at the heart and wallet of those victims who, because of their "lack [of] education, linguistic ability, or familiarity with the legal system," need a direct-mail tickler advising them that legal assistance is both available and warranted.⁽²⁶⁹⁾

In sum, the dissent remarked that Floridians, and not the State of Florida, are empowered by the First Amendment to decide what information survives in their market place of ideas.⁽²⁷⁰⁾ "`[T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented.'"⁽²⁷¹⁾ In the end, if the victim-client found the particular lawyer's piece of mail distasteful and/or intrusive, the victim-client may simply elect not to employ that lawyer and to seek legal representation elsewhere.⁽²⁷²⁾

IV.  Majority's Reasoning: Sound or Flawed?

Justice O'Connor used the Central Hudson test to resolve the constitutionality of Florida's thirty-day prohibition.⁽²⁷³⁾ The Court introduced the regulation to each prong of the test sequentially.⁽²⁷⁴⁾ In the end, the majority found that the regulation met the approval of each prong.⁽²⁷⁵⁾ Based upon the preceding analysis, however, the Court's purported justifications for upholding the regulation were seriously flawed because the Florida regulation failed to clear, not one, but all of the requisite hurdles set out in Central Hudson.⁽²⁷⁶⁾

A.  First Prong: Is There Proof of a Substantial State Interest?⁽²⁷⁷⁾

Florida Bar presented two purposes in support of upholding the Florida statute: (1) to shield victims and their families in the privacy of their home, during a moment of personal grief, from unsolicited direct-mail contact by intrusive lawyers; and (2) to help improve the image of the legal profession by forestalling actions that society views as unscrupulous.⁽²⁷⁸⁾ The Court found both asserted interests to be substantial, although one would have been sufficient,⁽²⁷⁹⁾ to satisfy this prong.⁽²⁸⁰⁾

The majority found the judicial landscape cluttered with precedents recognizing a state's interest in protecting an individual's residential privacy, a privacy right grounded in the deep-rooted belief that the home is sacrosanct.⁽²⁸¹⁾ The majority's reliance on Edenfield, Frisby, and Carey, however, was misplaced.⁽²⁸²⁾ The holdings of those cases centered on the in-person invasion of an unwilling listener while in the privacy of his or her home.⁽²⁸³⁾ In contrast, the issue before the Florida Bar Court concerned direct-mail solicitation and not in-person solicitation.⁽²⁸⁴⁾ In fact, the Court had already examined the issue of in-person solicitation by lawyers and found that a state may categorically ban this practice.⁽²⁸⁵⁾

Strikingly, the majority, in the instant case, self-servingly circumvented "the controlling effect of Shapero" by broadening the scope of an individual's residential privacy interest to include protection from direct-mail advertisements.⁽²⁸⁶⁾ Although the United States Supreme Court is not bound by its prior decisions, "the justices have a prima facie duty to conform to the precedents of the Court."⁽²⁸⁷⁾ One justification advanced for the duty to conform is that adherence to precedent assures "continuity of the law."⁽²⁸⁸⁾ However, "that obligation can be overridden if [the Court] offer[s] a cogent reason for so doing."⁽²⁸⁹⁾

In Shapero, the Court upheld a lawyer's right to direct-mail advertise⁽²⁹⁰⁾ provided that the particular advertisement was neither misleading nor unlawful.⁽²⁹¹⁾ As observed in Shapero, "[t]he relevant inquiry is not whether there existed 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."⁽²⁹²⁾ Although receiving unwanted mail of any sort may be construed as an invasion of privacy,⁽²⁹³⁾ recipients typically toss the pesky literature into the trash without ever opening the envelope.⁽²⁹⁴⁾ Indeed, the recipient of a Florida attorney's solicitous propaganda is sufficiently forewarned that the envelope to be opened, if so desired, contains advertising literature because a Florida statute explicitly requires the attorney to alert the recipient that the parcel and the contents therein are advertising materials.⁽²⁹⁵⁾ Thus, the potential reader need only employ the use of his or her basketball prowess and simply toss the letter into the circular basket to curtail any further intrusion.⁽²⁹⁶⁾

Returning to the majority's basis for finding that Florida had a legitimate and substantial interest in safeguarding Floridians' privacy interest, the Court was persuaded that the outrage expressed by folks who had received solicitous direct-mail communications, soon after an accident engendered, qualified as a substantial concern.⁽²⁹⁷⁾ The Court acknowledged the results gleaned from a two-year study on attorney advertising.⁽²⁹⁸⁾ The majority self-servingly culled out only those excerpts from the empirical study, replete with rancorous complaints from victims and their families who alleged that they received ill-timed, direct-mail solicitations.⁽²⁹⁹⁾

Once again, Justice O'Connor turned a blind-eye toward the doctrine of stare decisis⁽³⁰⁰⁾ by ignoring earlier Supreme Court decisions⁽³⁰¹⁾ that struck down attempts to restrict speech simply because "the expression might offend the listener."⁽³⁰²⁾ Although the Court protects the captive audience "from some offensive speech," in the instant case the Court's paternalistic endeavor to insulate grieving Floridians within their homes from potentially offensive literature is without merit.⁽³⁰³⁾ Indeed, "[t]he occupants of a household receiving mailings are not a captive audience."⁽³⁰⁴⁾ Absent a finding that the audience is captive, the Court has "`never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended.'"⁽³⁰⁵⁾ In the marketplace of ideas, "the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment."⁽³⁰⁶⁾

The other asserted State interest that Justice O'Connor found to be substantial involved Florida's desire "to protect the flagging reputations of Florida lawyers" by restraining activities that tend to denigrate lawyers in the eyes of Floridians.⁽³⁰⁷⁾ Direct-mail solicitation by attorneys just days after a personal tragedy, the Bar posited, only exacerbates an already tarnished image.⁽³⁰⁸⁾ The majority agreed with the Bar's observation, citing numerous primary authority in favor of permitting a state to regulate the practice of the professions it licenses.⁽³⁰⁹⁾

Unfortunately, the Court painted an unflattering portrait of lawyers as a platoon of ambulance-chasing mercenaries fighting to fortify their bank accounts rather than fighting to protect the rights of victims.⁽³¹⁰⁾ While it is true that lawyers advertise to increase revenues,⁽³¹¹⁾ the motive is "economic necessity" because "without clients" the lawyer would surely perish.⁽³¹²⁾ As Justice Holmes astutely remarked, "a page of history is worth a volume of logic."⁽³¹³⁾ The results of a 1993 National Law Journal disclosed that only two percent of the consumer-respondents denounced lawyer advertising as the cause for the public's distrust of attorneys.⁽³¹⁴⁾ Ironically, in that same report, the American Bar Association discovered that lawyers' opinions about lawyer advertising was more negative than the public's opinion.⁽³¹⁵⁾

Florida's motive to unsully the legal profession does not rise to the level of "an interest substantial enough to justify the abridgment of" lawyers' rights under the First Amendment.⁽³¹⁶⁾ Indeed, regulations that attempt to suppress advertising merely because some people might find it undignified to the profession cannot be justified for the same reasons that offensive speech may not be suppressed.⁽³¹⁷⁾ Alternatively, assuming arguendo that the Court found a state had a substantial interest in maintaining a lawyer's dignity, the Court once acknowledged that they were "unpersuaded that undignified behavior [by lawyers] would tend to recur so often as to warrant a prophylactic rule."⁽³¹⁸⁾

B.  Second Prong: Does the Restriction Directly and Materially Advance the State's Substantial Interest?

Heeding the long-standing principle that the party attempting to sustain a commercial speech restriction has the concomitant burden of justifying the regulation,⁽³¹⁹⁾ the Court correctly placed the onus on Florida Bar to establish that the thirty-day ban would effectively achieve its designated purposes.⁽³²⁰⁾ The Court relied on "the standard elaborated in Edenfield"⁽³²¹⁾ to adjudge whether or not the means chosen by Florida Bar, prohibiting lawyers from mailing targeted direct-mail messages to accident victims and their families for 720 hours following an accident, directly and materially advanced the State's asserted interests.⁽³²²⁾

In Edenfield, Justice Kennedy, writing for the majority, held that the Florida Board of Accountancy's rule prohibiting licensed certified public accountants in the State from engaging in "`direct, in-person, uninvited solicitations'" to be unconstitutional.<sup>(323)</sup> The Edenfield Court arrived at its decision after applying the multi-pronged Central Hudson test.<sup>(324)</sup> Most noteworthy from the Edenfield opinion is the standard borrowed by the Florida Bar Court for second-prong analysis; namely, a state does not meet its burden "`"by mere speculation or conjecture; 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."'"⁽³²⁵⁾

Justice O'Connor relied on the petitioner's proffered "2-year study of lawyer advertising and solicitation" as the basis for her decision that "the evidence adduced by the Bar is sufficient to meet the standard elaborated in Edenfield."⁽³²⁶⁾ Indeed, the majority selected a few self-serving statistics from the Florida Bar study to include in the opinion.⁽³²⁷⁾ For instance, the Court noted that forty percent of the roughly 700,000 direct mail solicitation mailed annually "were aimed at accident victims or their survivors"; fifty-four percent of Floridian's "surveyed said that contacting persons concerning accidents or similar events is a violation of privacy"; and "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."⁽³²⁸⁾ However, as the dissent revealed, the Florida Bar study "include[d] no actual surveys, few indications of sample size or selection procedures, no explanations of methodology, and no discussion of excluded results. There [was] no description of the statistical universe or scientific framework that permit[ed] any productive use of the information" gleaned from the study.⁽³²⁹⁾

Further, the majority endeavored to distinguish the advertising ban struck down in Shapero from the thirty-day ban in the case before it.⁽³³⁰⁾ First, the Court noted that Shapero "focused exclusively on the special dangers of overreaching inherent in targeted solicitations."⁽³³¹⁾ However, in Justice O'Connor's attempt to contrast the Shapero facts from the Florida Bar facts in order to validate her conviction, she erred by over simplifying the Shapero holding. Shapero, instead, stands for the much broader proposition that "States may not categorically prohibit lawyers from soliciting business for pecuniary gain by sending personalized letters to potential clients known to face particular legal problems."⁽³³²⁾

The second Shapero v. Florida Bar differentiation offered by the majority concerned the duration of the ban and the composition of the recipients to whom the direct-mailings were forbidden.⁽³³³⁾ In Shapero, the ban was to be eternal and the regulation was to protect all Kentuckians.⁽³³⁴⁾ In Florida Bar, on the other hand, the ban lasted for thirty days and the regulation protected only personal injury and wrongful death accident victims and their relatives.⁽³³⁵⁾ Arguably, Justice O'Connor's point is well placed; however, she failed to offer jurisprudential evidence to support her assertion.⁽³³⁶⁾ That is, the opinion is silent with respect to offering support for the proposition that a thirty-day ban as opposed to a seven-day ban or a one-hundred-and-forty-three day ban would indeed directly and materially advance either of the State's supposed substantial interests.⁽³³⁷⁾ The opinion is equally devoid of justification for why diagnosing all accident victims as thirty-day healers directly advances Florida's asserted interests.⁽³³⁸⁾

Lastly, the Court observed that in Shapero the State failed to offer "evidence attempting to demonstrate any actual harm caused by targeted direct mail."⁽³³⁹⁾ Conversely, in the instant case, the Florida Bar submitted a two-year study to support its allegation that Floridian's view "direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the [legal] profession."⁽³⁴⁰⁾ In reality, however, Justice O'Connor appears to have overlooked the substance-over-form⁽³⁴¹⁾ doctrine.⁽³⁴²⁾ The Florida Bar study largely addressed modes of advertising different from direct mailings; namely, telephone books and television.⁽³⁴³⁾ Indeed, only two pages in the entire one-hundred-plus-page summary discuss Floridians' attitudes toward lawyers who use targeted direct-mail solicitation.⁽³⁴⁴⁾ Moreover, during oral argument, Mr. Barry Richard, lawyer on behalf of the Petitioner, was asked by the Court "[w]hat . . . a typical injured plaintiff gets in the mail[?]," his response was: "That is not in the record . . . and I don't know the answer to that question."⁽³⁴⁵⁾ Undoubtedly, the majority's reliance on the State's evidence was misplaced; the State fell "well short of demonstrating that the harms it was trying to redress [were] real, let alone that the regulation directly and materially advance[d] the State's interests."⁽³⁴⁶⁾

C.  Third Prong: Is the Regulation Narrowly Drawn?

To overcome the third and final prong, the Court must find that a reasonable "`fit'" exists "between the legislature's ends and the means chosen to accomplish those ends."⁽³⁴⁷⁾ The Florida Bar Court found a reasonable fit.⁽³⁴⁸⁾ Highly probative in making this determination is whether or not "numerous and obvious less-burdensome alternatives to the restriction on commercial speech" exist.⁽³⁴⁹⁾ The statutory chilling period, according to the majority, was sufficiently brief enough and appropriately encompassing such that the Florida rule was no more extensive than necessary to accomplish the State's purpose.⁽³⁵⁰⁾

Opponents of the thirty-day ban argued that: (1) the regulation was "overinclusive insofar as it bans targeted mailings even to citizens whose injuries or grief are relatively minor"; and (2) the regulation suppressed valuable, time-sensitive information from reaching those individuals most in need of legal assistance.⁽³⁵¹⁾ Each criticism was independently dismissed by Justice O'Connor, and thus, in following the Court's paradigm, each claim will be analyzed separately.

First, the majority found the breadth of the regulation acceptable, despite the reality that not all post-accident grief is homogeneous.⁽³⁵²⁾ Rather than requiring that the rule quantify heartache and apply only to some quantum grief, the Court was satisfied that the ban applied "to all postaccident or disaster solicitations."⁽³⁵³⁾ Indeed, fashioning a grief standard that impinges no more than is necessary is difficult, if not impossible, since grief cannot be quantified in terms of severity or duration because every human copes with sorrow in his or her own individual way.⁽³⁵⁴⁾ By approving a prohibition that is arguably overinclusive, Justice O'Connor unwittingly created a quagmire for the majority.⁽³⁵⁵⁾ Indeed, earlier in the Florida Bar opinion Justice O'Connor asserted that the Shapero ban on all direct-mail solicitations, unlike the temporal ban in the instant case, was too broad because it lacked time and recipient restrictions.⁽³⁵⁶⁾ Later in the opinion, however, Justice O'Connor seemingly supported a blanket temporal ban that affects all personal injury and wrongful death clients, despite acknowledging that personal grief comes in a myriad of intensities, because such a ban conveniently served the Court's agenda.⁽³⁵⁷⁾

Perhaps Justice O'Connor, to validate this restraint, interjected her own psychoanalytical diagnosis into the opinion.⁽³⁵⁸⁾ How else could Justice O'Connor have concluded that the once frail and emotionally distraught can miraculously muster the strength, between the postman's visit on day thirty and the delivery of mail on day thirty-one, to withstand the distinct possibility that lurking inside their mailboxes is an envelope sporting prominent red letters indicating a lawyer's solicitation?⁽³⁵⁹⁾ Similarly, the majority, without explanation, opined that a thirty-day abstention would surreptitiously curb Floridian's evil perception of lawyers.⁽³⁶⁰⁾

In addition, Justice O'Connor maintained that the number of alternative advertising outlets available to lawyers, coupled with the fact that the ban operates "for a brief 30-day period," mitigated any concern that personal injury and wrongful death victims and their families might not find out "about their legal options."⁽³⁶¹⁾ The Court conceded that the opponents of the Bar's rule would have a leg to stand on if indeed the ban "were not limited to a brief period" and if alternative means of learning about legal assistance were unavailable during that short temporal ban.⁽³⁶²⁾ Therefore, the crux of the majority's contention hinges on the reasonableness of the Florida ban.⁽³⁶³⁾

The temporal nature of the ban is, at most, a tenuous nexus between the interests of Florida and the advertising ban.⁽³⁶⁴⁾ The proponents of the thirty-day ban offered no evidence to show that a more limited restriction on the time component of the ban would not adequately serve the State's interests.⁽³⁶⁵⁾ Indeed, "speech jurisprudence requires"⁽³⁶⁶⁾ the state to "show[] that more limited speech regulation would be ineffective" before the Court will approve restrictions on commercial speech.⁽³⁶⁷⁾ That is, the Bar advanced no legal theory or evidence to demonstrate that thirty days equalled a reasonable waiting period and that a lesser number of days would not achieve the same desired results.⁽³⁶⁸⁾

While it is true that lawyers have other avenues besides direct-mail solicitation to attain clients, the function of direct-mailings is to alert the injured party in a timely manner that he or she may have a legal claim against the tortfeasor and that legal assistance is available.⁽³⁶⁹⁾ Conversely, generalized advertisements to the masses fall well short of helping those individuals most in need of legal advice.⁽³⁷⁰⁾ Mass media advertising does not consider the individual recipient's "education, linguistic ability, or familiarity with the legal system."⁽³⁷¹⁾ A direct-mailing, unlike a general advertisement, is a rather efficient mechanism for contacting people who may presently require legal representation but who are unaware of their rights.⁽³⁷²⁾ The First Amendment, in fact, "does not permit a ban on certain speech merely because it is more efficient[. Also,] the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable."⁽³⁷³⁾

V.  Conclusion

"`Thirty days hath November, April, June, and September . . . .'"⁽³⁷⁴⁾ As well--Thirty days hath lawyers delay, Before direct-mail is deemed O.K.⁽³⁷⁵⁾ The second phrase is seemingly as innocuous as the first. Indeed, the Court could claim that its holding, regardless of whether one views it as sound or flawed, has only limited repercussions. The Florida Bar decision does not impinge upon a lawyer's access to alternative channels of communication during that temporal ban; it does not last for more than thirty days after an accident has engendered; and it does not protect individuals other than personal injury and wrongful death victims and their families⁽³⁷⁶⁾--much ado about nothing?⁽³⁷⁷⁾

Starting with Bates and continuing until Florida Bar, the Court had consistently acknowledged that truthful, non-deceptive lawyer advertising was protected by the guarantee of free speech,⁽³⁷⁸⁾ one of six substantive rights under the First Amendment.⁽³⁷⁹⁾ Then along came the Florida Bar decision; wherein the Court, for the first time since Bates, carved out an exception from the general proposition that truthful, non-misleading advertising was within the realm of First Amendment protection.⁽³⁸⁰⁾ The majority justified its holding based, in part, upon two proffered State interests: privacy and professional reputation.⁽³⁸¹⁾

The notion that the gatekeepers of the profession, the Florida Bar in this case, want to polish the trade's tarnished image and to find ways to reign in the gate-crashers, the so-called heartless ambulance-chasers, is praiseworthy. Notwithstanding, the mechanism or mechanisms employed to alleviate the Bar's anxieties should be directed at the entire legal profession and not simply a microcosm therein. Leveling sanctions against lawyers practicing law in only one area of the legal profession, personal-injury, seems inherently unfair and prejudicial. Moreover, the majority of lawyers who choose to practice their craft in the area of personal-injury are not the problem; rather, like most of life's situations, a few sour grapes will spoil the wine.⁽³⁸²⁾

While there is some truth to the adage that "an ounce of prevention is worth a pound of cure,"⁽³⁸³⁾ certainly the Court could not have presumed that a thirty-day ban on a single activity would result in an angelic metamorphosis of the profession's reputation, nor would the plethora of lawyer jokes suddenly be re-directed to some other loathed profession; e.g., student loan officers.

Inexplicably, the Court abruptly curtailed the well-established lawyer advertising right set forth in Shapero.⁽³⁸⁴⁾ In its opinion, the majority made a feeble attempt to reconcile why the controversy before it was unlike the settled principle decided in Shapero.⁽³⁸⁵⁾ Yet, at its core, the Florida Bar issue mirrored the Shapero issue.⁽³⁸⁶⁾ Therefore, one may query what is behind the parchment. The Court was outwardly compelled to confine its analysis to the Bar's proffered substantial interests.⁽³⁸⁷⁾ Indeed, the majority observed that "`the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions.'"⁽³⁸⁸⁾

However, one could easily imagine the Court stealthily factoring into its analysis the realism that the State of Florida is the retirement mecca of America's elderly.⁽³⁸⁹⁾ Because the Florida landscape is alive with senior citizens, who, sadly, are preyed on by every con-artist and huckster inside the panhandle,⁽³⁹⁰⁾ the majority may have implicitly added its own concerns atop the Bar's to give the regulation an emotional and paternalistic boost over the Central Hudson hurdles.

Indeed, state rules governing lawyers who solicit business using targeted direct mailings are not unique to Florida.⁽³⁹¹⁾ Massachusetts, for example, took notice of the Florida decision.⁽³⁹²⁾ Although Massachusetts' ethic rules are silent regarding the practice of lawyers sending out solicitous mailers to accident victims soon after a mishap occurs, "[t]he Massachusetts Bar Association is considering strengthening its proposal to limit lawyer adverting by banning personal-injury solicitation within 30 days of an accident."⁽³⁹³⁾ And, while the State bar has no immediate plans to go before the Massachusetts Supreme Judicial Court (SJC) to get the SJC's approval on a lawyer advertising ban, such a ban would fit neatly into the Bar's overall scheme of eliminating any ambiguousness in the ethical obligations of Massachusetts attorneys.⁽³⁹⁴⁾

In closing, one should ponder the timeless words of the late Justice Hugo L. Black: "[T]he creation of `tests' by which speech is left unprotected under certain circumstances is a standing invitation to abridge it."⁽³⁹⁵⁾ A thirty-day ban on certain attorney advertising may not seem officious because of its short temporal span and its breadth, however, any impingement upon truthful, non-deceptive speech strikes at the core of our First Amendment. Thus, this is not a bugaboo; this is censorship, "and censorship is antithetical to the first principles of free expression."⁽³⁹⁶⁾

Matthew E. Saunders^(*)

1. 115 S. Ct. 2371 (1995).

2. See id. at 2374.

3. See id. at 2382-83.

4. See infra notes 27-38 and accompanying text.

5. 316 U.S. 52 (1942).

6. See id. at 55.

7. The comedian, Rodney Dangerfield, used a trademark line in his act--"I don't get no respect."

8. See infra notes 39-98 and accompanying text.

9. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980).

10. 447 U.S. 557 (1980).

11. See id. at 566; see also infra Part II.C.

12. See infra notes 99-111 and accompanying text.

13. See infra notes 99-111 and accompanying text.

14. See infra notes 112-74 and accompanying text.

15. See infra notes 175-90 and accompanying text.

16. See Florida Bar: Petition to Amend the Rules Regulating the Florida Bar--Advertising Issues, 571 So. 2d 451, 459 (Fla. 1990); see also infra notes 177-92 and accompanying text.

17. See McHenry v. Florida Bar, 808 F. Supp. 1543, 1544 (M.D. Fla. 1992), aff'd, 21 F.3d 1038 (11th Cir.), and rev'd sub nom., Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1994); see also infra Part III.A.2.

18. See infra notes 191-208 and accompanying text.

19. See infra notes 209-39 and accompanying text.

20. See infra notes 240-72 and accompanying text.

21. See infra notes 240-59 and accompanying text.

22. See infra notes 260-72 and accompanying text.

23. See infra notes 240-59 and accompanying text.

24. See infra notes 260-72 and accompanying text.

25. See infra notes 273-374 and accompanying text.

26. See infra notes 375-96 and accompanying text.

27. U.S. CONST. amend. I. For an insightful look into the historical background of free speech see David A.J. Richards, A Theory of Free Speech, 34 UCLA L. REV. 1837 (1987); see also JOHN MILTON, AREOPAGITICA 26-29 (Edward Arber ed., 1868) (1644) (stating John Milton's theory of speech as a battle between truth and falsehood each fighting for survival; where the victor becomes the new truth, the orthodoxy). "Milton maintains that truth will emerge in a free and open encounter." STEVEN H. SHIFFRIN & JESSE H. CHOPER, THE FIRST AMENDMENT: CASES-COMMENTS-QUESTIONS 16 (1991).

28. 268 U.S. 652 (1925). Benjamin Gitlow was indicted for violating New York's criminal syndicalism statute. See id. at 654. The Supreme Court found the specific statute to be a valid exercise of New York's police power, and thus, the statute was held to be constitutional. See id. at 670, 672. Gitlow, however, is significant not for its holding but rather for the proposition that the First Amendment guarantee of free speech is incorporated into the Fourteenth Amendment. See id. at 660. Justice Sanford, writing for the majority, announced that First Amendment freedoms of expression "are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Id. at 666. That is, when you speak about freedom of speech vis-a-vis the state, you must implicate both the First and the Fourteenth Amendment because without the Fourteenth Amendment and its liberty guarantee, the First Amendment is not applicable to the states. See id.

29. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976). The Fourteenth Amendment provides in pertinent part that: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1.

30. See generally Harry Kalven, Jr., The Metaphysics of the Law of Obscenity, 1960 SUP. CT. REV.. 1. Hereinafter, it shall be implicit, unless this Comment notes otherwise, that all references to the First Amendment shall mean to also include by incorporation the protection of the Fourteenth Amendment from invasion by state action.

31. See id. at 11.

32. 315 U.S. 568 (1942).

33. See id. at 572. "[A] communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 111, at 774 (5th ed. 1984).

In New York Times v. Sullivan, a public-official/public-concern case (that is, a case involving a public official and a public forum), the Court held that the public official alleging defamation must prove actual malice to recover damages. See New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). Actual malice means that the publication was made with the "knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 280. The Court did not provide a precise definition of who qualifies as a "Public Official" but held that "respondent's position as an elected city official clearly made him a public official." Id. at 283 n.23; see also Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967) (extending the New York Times holding to include public figures); Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (noting that a "`public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct or governmental affairs").

In Gertz v. Robert Welch, Inc., a private-individual/public-concern case, the Court held that the private individual alleging defamation must prove actual damages and some kind of fault as defined by the individual state under the state's tort law to recover damages. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). The private individual can recover actual damages upon proof of fault. See id. at 348-49. However, the private individual must prove actual malice to recover presumed and/or punitive damages. See id. at 349; see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61 (1985) (finding that in a private-individual/private-concern case, the private individual alleging defamation need only prove fault to recover actual, presumed, and punitive damages).

For a more thorough analysis of defamation and privacy law see Keeton, supra §§ 111-116A. For additional discussions concerning the aforementioned cases see generally Harry Kalven, Jr., The New York Times Case: A Note on "the Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191; Melville B. Nimmer, The Right to Speak from Times to Time, First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935 (1968); Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 CAL. L. REV. 691 (1986); Steven Shiffrin, Defamatory Non-Media Speech and First Amendment Methodology, 25 UCLA L. REV. 915 (1978).

34. "Material is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex or excretion, and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters." BLACK'S LAW DICTIONARY 1077 (6th ed. 1990).

In Miller v. California, the Supreme Court formulated an obscenity standard that allows the states to regulate material depicting or describing "patently offensive . . . sexual conduct." Miller v. California, 413 U.S. 15, 24 (1973). According to the Miller standard, the particular state regulation is valid and thus the material is without the protection of the First Amendment if: (1) the material has been "specifically defined by the applicable state law"; (2) the material, "taken as a whole, appeals to the prurient interest"; (3) the material portrays sexual conduct "in a patently offensive way"; and (4) the material is devoid of "serious literary, artistic, political, or scientific value." Id.

For additional insight into obscenity law see generally Harry M. Clor, Obscenity and the First Amendment: Round Three, 7 LOY. L.A. L. REV. 207 (1974); William B. Lockhart, Escape from the Chill of Uncertainty: Explicit Sex and the First Amendment, 9 GA. L. REV. 533 (1975).

35. In Chaplinsky v. New Hampshire, the Supreme Court stated:

The word "offensive" is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are "fighting words" when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker--including "classical fighting words", words in current use less "classical" but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.

Chaplinsky, 315 U.S. at 573.

For further discussion on "fighting words" and offensive speech see generally Mark C. Rutzick, Offensive Language and the Evolution of First Amendment Protection, 9 HARV. C.R.-C.L. L. REV. 1 (1974).

36. See Chaplinsky, 315 U.S. at 571-72. The Chaplinsky Court dictum stated that:

[T]he right of free speech is not absolute. . . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words . . . .

Id. (footnote omitted). Thus, the Supreme Court decided that some types of speech are unworthy of First Amendment protection because "any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 572.

In Chaplinsky, Walter Chaplinsky stopped a city marshal in the street and said to him "`You are a God damned racketeer' and `a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.'" Id. at 569. Chaplinsky's speech violated a state statute prohibiting the addressing of "`any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, [or] call[ing] him by any offensive or derisive name.'" Id. at 569 (quoting N.H. Pub. Laws, ch. 378, § 2 (1926) (codified as amended at N.H. REV. STAT. Ann. § 644.2(II)(b) (Michie 1996)). The Supreme Court validated the New Hampshire statute as being neither a substantial nor an unreasonable infringement upon one's privilege of free speech. See id. at 574.

37. 316 U.S. 52 (1942).

38. See id. at 54.

39. See id. at 54-55.

40. See id. at 53. The particular ordinance in question attempted to proscriptively regulate the free exercise "of communicating information and disseminating opinion" by prohibiting the distribution "of commercial and business advertising matter" in city streets. Id at 53-54.

41. Id. at 54; see also Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 758 (1976) ("There can be no question that in past decisions the Court has given some indication that commercial speech is unprotected."). But see Bigelow v. Virginia, 421 U.S. 809, 820 (1975) (holding that Chrestensen did not stand "for the proposition that all statutes regulating commercial advertising are immune from constitutional challenge. The case [Chrestensen] obviously does not support any sweeping proposition that advertising is unprotected per se").

42. Valentine, 316 U.S. at 54.

43. See, e.g., Martin v. City of Struthers, 319 U.S. 141, 149 (1943) (holding that the door-to-door distribution of leaflets advertising a religious meeting was a freedom protected by the First Amendment). But see Breard v. Alexandria, 341 U.S. 622, 642-43 (1951) (holding that the door-to-door selling of magazine subscriptions violated an ordinance prohibiting same because "[t]he selling . . . brings into the transaction a commercial feature").

44. 425 U.S. 748 (1976).

45. See id. at 749-50. The particular statute in question provides, in part, that a licensed pharmacist in the State of Virginia is "guilty of unprofessional conduct if he `(3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms [for professional services of for drugs containing narcotics or] . . . for any drugs which may be dispensed only by prescription.'" Id. (quoting VA. CODE ANN. § 54-524.35 (Michie 1974) (current version at Va. Code Ann. § 54.1-3315 (Michie 1994)). Appellees brought suit against the Virginia State Board of Pharmacy arguing that the Virginia statute violated the First Amendment. See id. at 749-50.

46. Bigelow v. Virginia, 421 U.S. 809, 825 (1975).

47. Virginia State Bd. of Pharmacy, 425 U.S. at 760.

48. See id. at 762.

49. Id. (quoting Pittsburg Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973)).

50. Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

51. Id. (quoting Roth v. United States, 354 U.S. 476, 484 (1957) (quoting 1 JOURNALS OF THE CONTINENTAL CONGRESS 108 (1774)).

52. See id. "[S]peech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. . . . [L]ikewise [speech] is protected even though it is carried in a form that is `sold' for profit, . . . and even though it may involve a solicitation to purchase or otherwise pay or contribute money." Id. at 761 (citations omitted).

53. Virginia State Bd. of Pharmacy, 425 U.S. at 764-65; see also Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.").

54. Virginia State Bd. of Pharmacy, 425 U.S. at 763.

55. See id. at 770.

56. Id. at 771-72.

57. Id. at 773 n.25.

58. See id. at 770.

59. Id. at 771.

60. See Virginia Bd. of Pharmacy, 425 U.S. at 771 ("Untruthful speech, commercial or otherwise, has never been protected for its own sake."). The Court foresaw "no obstacle to a State's" regulating false or misleading advertisements. Id.

61. See id. at 772; see also Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 391 (1973) (holding that a city ordinance prohibiting sex-designated advertising for jobs does not violate the advertiser's First Amendment rights).

62. 433 U.S. 350 (1977).

63. See id. at 384. The Bates holding was "narrow" in scope. Id. at 366. The Court emphasized that the issue before them concerned solely the regulation of truthful, non-extravagant, non-misleading, and non-deceptive advertising by licensed attorneys. See id.

64. Arizona's disciplinary rule provides in pertinent part:

(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisement, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.

17A ARIZ. REV. STAT. § 29(B) (Supp. 1976) (current version at 17A ARIZ. REV. STAT. ANN. § 323(B) (West 1988)).

65. See Bates, 433 U.S. at 354 ("[T]he advertisement stated that appellants were offering `legal services at very reasonable fees,' and listed their fees for certain services.").

66. See id. at 353-55.

67. Id. at 356. The appellants also argued "that the disciplinary rule violated §§ 1 and 2 of the Sherman [Antitrust] Act because of [the rule's] tendency to limit competition." Id. The Supreme Court held that appellants' Sherman Act argument was without merit based on "the Parker v. Brown exemption." Id. at 363. The Parker v. Brown exemption, an outgrowth of the Supreme Court's holding in Parker v. Brown, 317 U.S. 341 (1943), provided that if the action in question is one that the Sherman Act was not intended to prohibit, then the state, as a sovereign, may regulate such action. See Bates, 433 U.S. at 359.

68. See Bates, 433 U.S. at 384.

69. Justice Rehnquist became Chief Justice Rehnquist of the United States Supreme Court on September 26, 1986. See WILLIAM COHEN AND JONATHAN D. VARAT, CONSTITUTIONAL LAW: CASES AND MATERIAL 1701 (9th ed. 1993).

70. Bates, 433 U.S. at 404 (Rehnquist, J., dissenting in part). Justice Rehnquist stated that his inability to agree with the majority stemmed from many of the same reasons opined in his dissenting remarks in Virginia State Board of Pharmacy. See id. (Rehnquist, J., dissenting in part) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 781-90 (1976) (Rehnquist, J., dissenting)). In Virginia State Board of Pharmacy, Justice Rehnquist wrote that "`[l]egitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from the present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.'" Virginia State Bd. of Pharmacy, 425 U.S. at 789-90 (Rehnquist, J., dissenting) (quoting American Communication Ass'n v. Douds, 339 U.S, 382, 399 (1950)). Concluding, the Justice penned "[t]he Valentine distinction was constitutionally sound and practically workable, and I am still unwilling to take even one step down the `slippery slope' away from it." Bates, 433 U.S. at 405 (Rehnquist, J., dissenting in part). That is, Justice Rehnquist longed for the return of the simpler times of 1942 when commercial speech, for the most part, was unprotected by the guarantees of the First Amendment. See id. at 405 (Rehnquist, J., dissenting in part).

71. See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995).

72. 436 U.S. 447 (1978).

73. See Bates, 433 U.S. at 366.

74. A runner is a "[p]erson who solicits business for attorney from accident victims." BLACK'S LAW DICTIONARY 1333 (6th ed. 1990).

75. Ohralik, 436 U.S. at 449 (quoting Bates, 433 U.S. at 366). The other issue left unresolved from Bates concerned the validity of "advertising claims relating to the quality of legal services." Bates, 433 U.S. at 366.

76. See Ohralik, 436 U.S. at 450-51.

77. See id. at 449-52.

78. See id. at 453 n.10.

79. OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 2-103(A) (Supp. 1996). Disciplinary Rule 2-103(A) provides: "A lawyer shall not recommend employment, as a private practitioner, of himself or herself, his or her partner, or associate to a non-lawyer who has not sought the lawyer's advice regarding employment of a lawyer." Id.

Disciplinary Rule 2-104(A) provides in relevant part:

(A) A lawyer who has given unsolicited advice to a nonlawyer that the nonlawyer should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:

(1) A lawyer may accept employment by a close friend, relative, former client, if the advice is germane to the former employment, or one whom the lawyer reasonably believes to be a client.

OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 2-104(A) (Supp. 1996).

80. See Ohralik, 436 U.S. at 452-53.

81. Id. at 455.

82. See id.; see also supra note 63 and accompanying text.

83. Ohralik, 436 U.S. at 457.

84. Id.

85. Id. at 462.

86. Id. at 465.

87. Id. at 466.

88. Id. at 468.

89. Ohralik, 436 U.S. at 459.

In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions. "The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been `officers of the courts.'"

Id. at 460 (citations omitted) (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)).

90. 436 U.S. 412 (1978). Ohralik and Primus were decided on the same day--May 30, 1978. See id at 412; see also Ohralik, 436 U.S. at 447.

91. See In re Primus, 436 U.S. at 416 n.6 (reproducing the letter from Edna Smith, ACLU cooperating lawyer, to Mrs. Marietta Williams, the injured party).

92. See id. at 439.

93. See id. at 416. Appellant, Edna Smith, at the behest of the South Carolina Council on Human Relations, a non-profit organization, met with Mrs. Marietta Williams, among others, to advise Williams of her "legal rights and suggest[] the possibility of a lawsuit." Id. Williams had been sterilized "as a condition of the continued receipt of medical assistance under the Medicaid program." Id. at 415. As a follow-up to the in-person meeting, Smith sent Williams a letter to express the ACLU's willingness to offer Williams "free legal representation." Id. at 416. Thereafter, Smith was reprimanded by the Board of Commissioners of Grievances and Discipline of the Supreme Court of South Carolina for sending out a client solicitation letter "in violation of the Canons of Ethics." Id. at 417.

94. Id. at 416-17.

95. See id. at 434-38. "[S]ubstantive evils of solicitation . . . [consist of]: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation." Ohralik, 436 U.S. at 461.

96. In re Primus, 436 U.S. at 438.

97. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980); see also infra note 103 and accompanying text.

98. See Central Hudson Gas & Elec. Corp., 447 U.S. at 566; see also infra notes 110-11 and accompanying text.

99. See Central Hudson Gas & Elec. Corp., 447 U.S. at 566.

100. See id. at 558.

101. See id. at 559.

102. Id. at 560.

103. See id. at 566.

104. Id. at 573 (Blackmun, J., concurring).

105. See Central Hudson Gas & Elec. Corp., 447 U.S. at 566-71.

106. See id. at 566-69.

107. Id. at 569-70.

108. Id. at 572.

109. See id. at 571.

110. See U.S. CONST. amend. X. A State receives its police powers from the Tenth Amendment which provides in relevant part that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively." Id.

111. See Central Hudson Gas & Elec. Corp., 447 U.S. at 566.

112. 455 U.S. 191 (1982).

113. See supra notes 62-68 and accompanying text.

114. See In re R.M.J., 455 U.S. 191, 194 (1982). The statute permitted attorneys to advertise in newspapers, magazines, and the yellow pages section of the telephone book. See id. The message, however, was limited to disclosure of the attorney's "name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain specified `routine' legal services." Id. Indeed, the rule does not explicitly confine the attorney to the above-stated advertising limitations. See id. However, both the Supreme Court of Missouri and the Advisory Committee, charged with enforcement of the rule, interpreted the rule to mean an attorney's advertisement was restricted to the proscribed informational categories and media outlets. See id. An addendum to the rule qualified how a lawyer could describe his or her practice and recognized a limited number of areas of practice suitable for inclusion in the advertisement. See id. at 194-95.

115. See id. at 196.

116. See id. at 197-98.

117. See id.

118. See id. at 198. The appellant did not challenge the constitutionality of the disclaimer requirement. See id.

119. See id. at 207.

120. See In re R.M.J., 455 U.S. at 203.

121. Id.

122. Id.

123. See id. at 202; see also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 465 n.24 (1978) ("Most lay persons are unfamiliar with the law, with how legal services normally are procured, and with typical arrangements between lawyer and client.").

124. In re R.M.J., 455 U.S. at 202.

125. Id. In support of this notion, the majority referenced the ABA's Model Rules of Professional Conduct definition of misleading advertising which provides in a part that advertising is misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about the results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

Id. at 201 n.14 (quoting MODEL RULES OF PROFESSIONAL CONDUCT RULE 7.1 (1982)). Further, commentary after the Rule intimates that the Rule also prohibits "`advertisements about results obtained on behalf of a client, . . . or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements.'" Id. (quoting MODEL RULES OF PROFESSIONAL CONDUCT 7.1 (1982)).

126. See id. at 206-07.

127. See id. at 195.

128. See id. at 199-200.

129. 471 U.S. 626 (1985).

130. See id. This case involved two separate advertising issues; one pertaining to Zauderer's advertisement soliciting individuals accused of drunk driving; the other involving Zauderer's advertisement soliciting individuals injured by the Dalkon Shield. See id. at 629-30. The United States Supreme Court decided the former issue against Zauderer, affirming the Ohio Supreme Court's decision to publicly reprimand Zauderer for the potentially misleading nature of his advertisement. See id. at 655-56.

131. See id. at 630-31. The advertisement contained a drawing of the Dalkon Shield accompanied by text that discussed the "alleged" problems caused by use of the device; notified the reader that legal recourse against the manufacturer was available; stated that appellant's firm was currently "representing women on such cases"; noted the fee arrangement used by appellant's firm; and listed the name and address of the appellant's law firm and a telephone number to call to receive "free information." Id. at 631.

132. See id. at 630. An intrauterine device (IUD) is a contraception device used by women. See id. at 630 n.2.

133. See id. at 631. DR 2-101(B) prohibits attorneys from including illustrations in their message. See id. at 632. Indeed, the Rule limits the content of an attorney's advertisement. See id. at 632 n.4.

DR 2-103(A) makes unlawful the attorney practice of "recommend[ing] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer." Id. at 633 (quoting OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 2-103(A) (1979)).

DR 2-104(A) provides in relevant part that a "lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice." Id. at 633 (quoting Ohio Code of Professional Responsibility DR 2-104(B) (1979)).

DR 2-101(B)(15) provides in pertinent part that if an attorney's message discusses contingent-fee rates then the advertisement must also "disclos[e] whether percentages are computed before or after deduction of court costs and expenses." Id. at 633 (quoting Ohio Code of Professional Responsibility DR 2-101(B)(15) (1979)). Moreover, an advertisement devoid of language informing prospective customers of their obligation to pay for expenses, regardless of the outcome of their lawsuit, violates DR 2-101(A) because it is deceptive. See id. at 635.

134. Id. at 638. The Court noted that "[t]he States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction." Id. (citations omitted). Indeed, "[c]ommercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id. (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n 477 U.S. 557, 566 (1980)).

135. See Zauderer, 471 U.S. at 639-41.

136. See id. at 634, 639.

137. Id. at 640.

138. See id. at 641.

139. See id. at 641-42.

140. See id. at 642.

141. See Zauderer, 471 U.S. at 642-43.

142. See id. at 642.

143. Id. at 641-42.

144. Zauderer, 471 U.S. at 642.

145. Id. at 643.

146. See id. at 641-42. The Court underscored its basic philosophy that commercial speech is "grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators [i.e., the states] the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful." Id. at 646.

147. Id. at 647. In Part IV of the Court's opinion, the Court stated that state imposed flat ban restrictions on illustrations used in attorney advertising, "must survive scrutiny under the Central Hudson test." Id. The Court maintained that "[t]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly." Id. The Court opined that the Ohio rule failed to pass the Central Hudson test and thus invalidated the ban. See id. at 649.

148. See Zauderer, 471 U.S. at 650; see also supra note 133.

149. Zauderer, 471 U.S. at 651.

150. See id.

151. See id.

152. Id. (footnote omitted).

153. 486 U.S. 466 (1988).

154. See id. at 468 (Brennan, J., for a plurality).

155. Id. at 469 (Brennan, J., for a plurality).

156. See id. (Brennan, J., for a plurality).

157. See id. at 469-70 (Brennan, J., for a plurality) Kentucky Supreme Court Rule 3.135(5)(b)(i) provides in its entirety:

A written advertisement may be sent or delivered to an individual