FLORIDA BAR, Petitioner
v.
WENT FOR IT, INC., and John T. Blakely.
515 U.S. 618 (1995)
*620 Justice O'CONNOR
delivered the opinion of the Court.
Rules of the
Florida Bar prohibit personal injury lawyers from sending targeted direct-mail
solicitations to victims and their relatives for 30 days following an accident
or disaster. This case asks us to consider whether such Rules violate the First
and Fourteenth Amendments of the Constitution. We hold that in the
circumstances presented here, they do not.
I
In 1989, the
Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising
on public opinion. After conducting hearings, commissioning surveys, and
reviewing extensive public commentary, the Bar determined that several changes
to its advertising rules were in order. In late 1990, the Florida Supreme Court
adopted the Bar's proposed amendments with some modifications. The
Florida Bar: Petition to Amend the Rules Regulating the Florida Bar-Advertising
Issues,
571 So.2d 451 (Fla.1990). Two of these amendments are at issue in this
case. …Together, these Rules create a brief 30-day blackout period after an
accident during which lawyers may not, directly or *621 indirectly,
single out accident victims or their relatives in order to solicit their
business.
In March 1992,
G. Stewart McHenry and his wholly owned lawyer referral service, Went For It,
Inc., filed this action for declaratory and injunctive relief in the United
States District Court for the Middle District of Florida challenging Rules
4-7.4(b)(1) and 4-7.8(a)
as violative of the First and Fourteenth Amendments to the Constitution.
McHenry alleged that he routinely sent targeted solicitations to accident
victims or their survivors within 30 days after accidents and that he wished to
continue doing so in the future. Went For It, Inc, represented that it wished
to contact accident victims or their survivors within 30 days of accidents and
to refer potential clients to participating Florida lawyers…
…The District
Court…entered summary judgment for the plaintiffs. The Eleventh Circuit affirmed on similar
grounds. We granted certiorari, and now reverse.
II
A
Constitutional
protection for attorney advertising, and for commercial speech generally, is of
recent vintage. Until the mid-1970's, we adhered to the broad rule laid out in Valentine
v. Chrestensen,
316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942), that, while the
First Amendment guards against government restriction of speech in most
contexts, “the Constitution imposes no such restraint on government as respects
purely commercial advertising.” In 1976, the Court changed course. In Virginia
Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, we invalidated a state statute
barring pharmacists from advertising prescription drug prices. At issue was
speech that involved the idea that “ ‘I will sell you the X prescription drug
at the Y price.’ ” Id.,
at 761, 96 S.Ct., at 1825. Striking the ban as unconstitutional, we
rejected the argument that such speech “is so removed from ‘any exposition of
ideas,’ and from ‘truth, science, morality, and arts in general, in its
diffusion of liberal sentiments on the administration of Government,’ that it
lacks all protection.” Id.,
at 762, 96 S.Ct., at 1826 (citations omitted).
In Virginia
Bd., the Court limited its holding to advertising by pharmacists,
noting that “[p]hysicians and lawyers ... do not dispense standardized
products; they render professional services of almost infinite variety
and nature, with the consequent enhanced possibility for confusion and
deception if they were to undertake certain kinds of advertising.” Id.,
at 773, n. 25, 96 S.Ct., at 1831 n. 25 (emphasis in original). One year
later, however, the Court applied the Virginia
Bd. principles to invalidate a state rule prohibiting lawyers from
advertising in newspapers*623 and other media. In Bates
v. State Bar of Arizona, supra, the Court struck a ban on price
advertising for what it deemed “routine” legal services: “the uncontested
divorce, the simple adoption, the uncontested personal bankruptcy, the change
of name, and the like.” 433
U.S., at 372, 97 S.Ct., at 2703. Expressing confidence that legal
advertising would only be practicable for such simple, standardized services,
the Court rejected the State's proffered justifications for regulation.
Nearly two
decades of cases have built upon the foundation laid by Bates.
It is now well established that lawyer advertising is commercial speech and, as
such, is accorded a measure of First Amendment protection. See, e.g., Shapero
v. Kentucky Bar Assn.,
486 U.S. 466, 472, 108 S.Ct. 1916, 1921, 100 L.Ed.2d 475 (1988); Zauderer
v. Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U.S. 626, 637, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985); In
re R.M.J.,
455 U.S. 191, 199, 102 S.Ct. 929, 935, 71 L.Ed.2d 64 (1982). Such First
Amendment protection, of course, is not absolute. We have always been careful
to distinguish commercial speech from speech at the First Amendment's core. “
‘[C]ommercial speech [enjoys] a limited measure of protection, commensurate
with its subordinate position in the scale of First Amendment values,’ and is
subject to ‘modes of regulation that might be impermissible in the realm of noncommercial
expression.’ ” Board
of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 477, 109 S.Ct. 3028, 3033, 106 L.Ed.2d 388 (1989), quoting Ohralik
v. Ohio State Bar Assn.,
436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). We have observed
that “ ‘[t]o require a parity of constitutional protection for commercial and
noncommercial speech alike could invite dilution, simply by a leveling process,
of the force of the Amendment's guarantee with respect to the latter kind of
speech.’ ” 492
U.S., at 481, 109 S.Ct., at 3035, quoting Ohralik,
supra,
436 U.S., at 456, 98 S.Ct., at 1918.
Mindful of
these concerns, we engage in “intermediate” scrutiny of restrictions on commercial
speech, analyzing them under the framework set forth in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y.,
447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under Central
Hudson, the government may *624 freely regulate commercial
speech that concerns unlawful activity or is misleading. Id.,
at 563-564, 100 S.Ct., at 2350. Commercial speech that falls into neither
of those categories, like the advertising at issue here, may be regulated if
the government satisfies a test consisting of three related prongs: First, the
government must assert a substantial interest in support of its regulation;
second, the government must demonstrate that the restriction on commercial
speech directly and materially advances that interest; and third, the regulation
must be “ ‘narrowly drawn.’ ” Id.,
at 564-565, 100 S.Ct., at 2350-51.
B
“Unlike rational basis review, the Central
Hudson standard does not permit us to supplant the precise interests
put forward by the State with other suppositions,” Edenfield
v. Fane,
507 U.S. 761, 768, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993). The Bar asserts
that it has a substantial interest in protecting the privacy and tranquility of
personal injury victims and their loved ones against intrusive, unsolicited
contact by lawyers. See Brief for Petitioner 8, 25-27; 21
F.3d, at 1043-1044. This interest
obviously factors into the Bar's paramount (and repeatedly professed) objective
of curbing activities that “negatively affec[t] the administration of justice.”
…*625 Because direct-mail solicitations in the wake of accidents are
perceived by the public as intrusive, the Bar argues, the reputation of the
legal profession in the eyes of Floridians has suffered commensurately. The regulation, then, is an effort to protect
the flagging reputations of Florida lawyers by preventing them from engaging in
conduct that, the Bar maintains, “ ‘is universally regarded as deplorable and
beneath common decency because of its intrusion upon the special vulnerability
and private grief of victims or their families.’ ” Brief for Petitioner 28,
quoting In
re Anis,
126 N.J. 448, 458, 599 A.2d 1265, 1270 (1992).
We have little
trouble crediting the Bar's interest as substantial. On various occasions we
have accepted the proposition that “States have a compelling interest in the
practice of professions within their boundaries, and ... as part of their power
to protect the public health, safety, and other valid interests they have broad
power to establish standards for licensing practitioners and regulating the
practice of professions.”
…Under Central
Hudson's
second prong, the State must demonstrate that the challenged regulation
“advances the Government's interest ‘in a direct and material way.’ ” *626
Rubin
v. Coors Brewing Co.,
514 U.S. 476, 487, 115 S.Ct. 1585, 1592, 131 L.Ed.2d 532 (1995), quoting Edenfield,
supra,
507 U.S., at 767, 113 S.Ct., at 1798. That burden, we have explained, “ ‘is
not satisfied by mere speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on commercial speech must demonstrate that the
harms it recites are real and that its restriction will in fact alleviate them
to a material degree.’ ” 514
U.S., at 487, 115 S.Ct., at 1592, quoting Edenfield,
supra,
507 U.S., at 770-771, 113 S.Ct., at 1800.
The
direct-mail solicitation regulation before us does not suffer from…infirmities.
The Bar submitted a 106-page summary of its 2-year study of lawyer advertising
and solicitation to the District Court. That summary contains data-both
statistical and anecdotal-supporting the Bar's contentions that the Florida
public views direct-mail solicitations in the immediate wake of accidents as an
intrusion on privacy that reflects poorly upon the profession. …The study
summary also includes page upon page of excerpts from complaints of direct-mail
recipients.
In light of
this showing…we conclude that the Bar has satisfied the second prong of the Central
Hudson test.
Passing to Central
Hudson's
third prong, we examine the relationship between the Bar's interests and the
means chosen to serve them. “What our decisions require, is a ‘fit’ between the
legislature's ends and the means chosen to accomplish those ends,” a fit that
is not necessarily perfect, but reasonable; that represents not necessarily the
single best disposition but one whose scope is ‘in proportion to the interest
served,’ that employs not necessarily the least restrictive means but ... a
means narrowly tailored to achieve the desired objective.” Ibid.
(citations omitted).
Respondents
levy a great deal of criticism, at the scope of the Bar's restriction on targeted
mail. “[B]y prohibiting written communications to all people, whatever their
state of mind,” respondents charge, the Rule “keeps useful information from
those accident victims who are ready, willing and able to utilize a lawyer's
advice.” Brief for Respondents 14. This criticism may be parsed into two
components. First, the Rule does not distinguish between victims in terms of
the severity of their injuries. According to respondents, the Rule is
unconstitutionally overinclusive insofar as it bans targeted mailingseven *633
to citizens whose injuries or grief are relatively minor. Id., at 15.
Second, the Rule may prevent citizens from learning about their legal options,
particularly at a time when other actors-opposing counsel and insurance
adjusters-may be clamoring for victims' attentions. Any benefit arising from
the Bar's regulation, respondents implicitly contend, is outweighed by these
costs.
We are not
persuaded by respondents' allegations of constitutional infirmity. We find little
deficiency in the ban's failure to distinguish among injured Floridians by the
severity of their pain or the intensity of their grief. Indeed, it is hard to
imagine the contours of a regulation that might satisfy respondents on this
score. Rather than drawing difficult lines on the basis that some injuries are
“severe” and some situations appropriate (and others, presumably,
inappropriate) for grief, anger, or emotion, the Bar has crafted a ban
applicable to all postaccident or disaster solicitations for a brief 30-day
period. Unlike respondents, we do not see “numerous and obvious less-burdensome
alternatives” to Florida's short temporal ban. Cincinnati,
supra,
at 417, n. 13, 113 S.Ct., at 1510, n. 13. The Bar's rule is reasonably well
tailored to its stated objective of eliminating targeted mailings whose type
and timing are a source of distress to Floridians, distress that has caused
many of them to lose respect for the legal profession.
Respondents'
second point would have force if the Bar's Rule were not limited to a brief
period and if there were not many other ways for injured Floridians to learn
about the availability of legal representation during that time. Our lawyer
advertising cases have afforded lawyers a great deal of leeway to devise
innovative ways to attract new business. Florida permits lawyers to advertise
on prime-time television and radio as well as in newspapers and other media.
They may rent space on billboards. They may send untargeted letters to the
general population, or to discrete segments thereof. There are, of course,
pages upon pages devoted*634 to lawyers in the Yellow Pages of Florida
telephone directories. These listings are organized alphabetically and by area
of specialty. See generally …These ample alternative channels for receipt of
information about the availability of legal representation during the 30-day
period following accidents may explain why, despite the ample evidence,
testimony, and commentary submitted by those favoring (as well as opposing)
unrestricted direct-mail solicitation, respondents have not pointed to-and we
have not independently found-a single example of an individual case in which
immediate solicitation helped to avoid, or failure to solicit within 30 days
brought about, the harms that concern the dissent, see post, at 2385. In
fact, the record contains considerable empirical survey information suggesting
that Floridians have little difficulty finding a lawyer when they need one.
See, e.g., Summary of Record, App. C(4), p. 7; id., App. C(5), p.
8. Finding no basis to question the commonsense conclusion that the many
alternative channels for communicating necessary information about attorneys
are sufficient, we see no defect in Florida's regulation.
III
We believe
that the Bar's 30-day restriction on targeted direct-mail solicitation of accident
victims and their relatives withstands scrutiny under the three-pronged Central
Hudson test that we have devised for this context. The Bar has
substantial interest both in protecting injured Floridians from invasive
conduct by lawyers and in preventing the erosion of confidence in the
profession that such repeated invasions have engendered. The Bar's proffered
study, unrebutted by respondents below, provides evidence indicating that the
harms it targets are far from illusory. The palliative devised by the Bar to
address these harms is narrow both in scope and in duration. The Constitution,
in our view, requires nothing more.
The judgment
of the Court of Appeals, accordingly, is Reversed.
Justice
KENNEDY’s dissent omitted.