Florida Bar v. Went For It, Inc.

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), was a United States Supreme Court case in which the Court upheld a state's restriction on lawyer advertising under the First Amendment's commercial speech doctrine. The Court's decision was the first time it did so since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lifted the traditional ban on lawyer advertising.

Background

In 1989, the Florida Bar completed a two-year survey of public opinion of lawyers. It discovered that lawyers had a bad reputation stemming from their advertising activities. Accordingly, the Florida Bar proposed modifications to its rules regulating lawyer advertising in Florida. These modifications had the effect of creating a thirty-day blackout period after an accident or disaster during which lawyers were forbidden from soliciting business from the victims of such accidents or disasters, either directly or through a referral service.

On March 22, 1992, a lawyer named G. Stewart McHenry, together with a lawyer referral service he owned called Went For It, Inc., filed a suit for declaratory and injunctive relief in the United States District Court for the Middle District of Florida. McHenry argued that the 30-day blackout period violated the First Amendment right to free speech, insofar as Went For It sought to contact victims of accidents and disasters within 30 days of the incident. After McHenry was disbarred for unrelated reasons, another lawyer, John Blakely, was substituted for McHenry.

Relying on Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the district court entered summary judgment for Blakely and Went For It, believing that Bates compelled it to set aside the blackout period. The Eleventh Circuit affirmed on similar grounds, although it claimed to be "disturbed that Bates and its progeny required the decision" in the case. The U.S. Supreme Court accepted the Florida Bar's request that it review the case.

Analysis

Advertising by lawyers is commercial speech protected by the First Amendment. The First Amendment allows states to ban commercial speech that is false or misleading. If the speech is not false or misleading, then a state may only regulate or ban the speech if it asserts a substantial interest in support of its regulation, demonstrates that the restriction directly and materially advances that interest, and shows that the regulation is narrowly drawn.

The state, through the Florida Bar, asserted 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." This interest stems from its perception that such solicitation "negatively affects the administration of justice," and hence also the reputation of lawyers as a whole. The Court had "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 apart 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."

In the district court, the Florida Bar had submitted a 106-page report containing "statistical and anecdotal" evidence supporting the contention that the public views direct-mail solicitations from lawyers soon after an accident as intrusive. This report included data from public opinion polls, editorials in various newspapers throughout the state, and excerpts from personal complaints from targets of the unwanted solicitations. "One citizen wrote, 'I consider the unsolicited contact from you [a Florida lawyer] after my child's accident to be of the rankest form of ambulance chasing and in incredibly poor taste. I cannot begin to express with my limited vocabulary the utter contempt in which I hold you and your kind.'" In light of this evidence, the Court concluded that Florida's blackout period on direct solicitation advanced its interest in protecting the public from unwanted intrusions. And although the Court had reasoned that the "short, regular journey from mail box to trash can" was an acceptable burden for citizens subjected to unwanted advertisements for contraceptive devices, solicitation by lawyers so soon after an accident was not. "The purpose of the 30-day targeted direct-mail ban is to forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered." In light of the "unrefuted empirical and anecdotal evidence" in the record documenting this phenomenon, the Court found no trouble with the second prong of the commercial speech analysis.

Finally, the Court believed that the Bar's means of advancing its interest was acceptable. "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." Although Went For It had suggested that the Bar could have banned only solicitations to seriously injured citizens, the Court noted that the commercial speech test did not mandate that a state use the least restrictive means to implement its objective. Furthermore, the blackout period was brief, and there remained other ways for injured Floridians to learn about available legal services during that time. Lawyers may still advertise on television, on billboards, and in the yellow pages during the blackout period. "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," a lack of access to legal services on the part of lesser educated or less sophisticated citizens. For all these reasons, the Court ruled that the First Amendment allowed Florida to impose this blackout period on direct-mail solicitation of accident victims by lawyers.

External links

• Text of the opinion, LII, Cornell University
• Multimedia files, OYEZ project
• Text of the opinion, findlaw.com