The Unsettled Status of Lawyer Advertising After Went For It Decision

By Laurence H. Winer

That his caution unfortunately was justified was soon confirmed: The Supreme Court refused to review the Fourth Circuit’s reaffirmation, on remand after 44 Liquormart, of Baltimore’s ban on billboard advertising of alcohol and tobacco products.

Continuing uncertainty also persists in the commercial speech subcategory of lawyer advertising and soliciting two years after the Court’s curious opinion in Florida Bar v. Went For It, Inc.

Since the Court in 1977 first opened the door to lawyer advertising in Bates v. State Bar of Arizona, there has been an almost uniform expansion in the rights of attorneys to communicate information about their services to the public.

Yet, only a year before the Court’s encomium to commercial speech in 44 Liquormart, in which four Justices even repudiated as erroneous the First Amendment analysis of Posadas, a bare majority in Went For It upheld Florida Bar rules prohibiting lawyers from sending targeted direct mail solicitations to victims and their relatives for 30 days following an accident or disaster.

As the oral arguments seemed to indicate, this should have been an easy case for the Court to reaffirm that lawyers have a right to disseminate, and the public has the right to access, such information about the availability of legal services.

Instead, in all likelihood Justice O’Connor’s opinion for the Court began as a dissent until she picked up a fifth vote from Justice Breyer, and she then traded places with Justice Kennedy who wrote a strong dissent joined by three others. If so, Justice Breyer, especially as he replaces Justice Blackmun’s strong voice protecting commercial speech, is becoming as much of a disappointment on many First Amendment issues (e.g., in Denver Area and Turner Broadcasting) as Justice Kennedy generally has been a delightful surprise.

There are, to be sure, arguably significant differences between 44 Liquormart and Went For It. In 44 Liquormart the Court was troubled by the categorical nature of the prohibitions on advertising the retail price of alcohol beverages, while the 30-day ban in Went For It was limited in time and applied to only one form of communication. The Court stressed that potential clients had access to other forms of information about lawyers’ services.

Still, it is odd First Amendment analysis that allows prohibition of a particularly effective form of communication — targeted direct mail solicitations — because other less effective forms exist. Moreover, the 30-day period immediately following an accident is the most crucial for plaintiffs to gather and preserve important evidence and to deal effectively, without compromising their position, with insurance agents and defense attorneys.

Fundamentally, both cases involve the same substantial public interest in access to accurate commercial information about lawful products and services that the Court has come to value highly and usually protect.

So, in Went For It, the majority relied on dubious rationales peculiar to lawyer solicitation. First, the Court credited the Florida Bar’s asserted interest in protecting the “personal privacy and tranquility of recent accident victims and their relatives” from “crass commercial intrusion by attorneys upon their personal grief in times of trauma” through direct mail solicitations in the wake of accidents.

Secondly, since the Florida Bar claimed such lawyer conduct is “universally regarded as deplorable and beneath common decency,” curbing such solicitations was important to the Bar’s “paramount” objective of “protect[ing] the flagging reputations of Florida lawyers” that purportedly is “negatively affect[ing] the administration of justice.”

To sustain its reliance on a privacy interest, the majority had to distinguish cases such as Bolger v. Youngs Drug Products Corp., which invalidated a federal ban on supposedly “offensive” and “intrusive” direct mail advertisements for contraceptives. Bolger famously held that, rather than allowing government to ban the dissemination of commercial information, the Constitution requires that recipients of objectionable mailings bear the burden of averting their eyes through the “short, though regular, journey from mail box to trash can.”

This surely should have been the end of the matter in Went For It. Instead, Justice O’Connor unpersuasively fashioned an implausible distinction. The mere receipt of a lawyer’s targeted solicitation within days of an accident, regardless of the letter’s specific contents, fosters citizens’ “offense” and the asserted “demonstrable detrimental effects” such offense has on the legal profession.

Thus, in essence, the majority’s position depends entirely on the Florida Bar’s claimed need to protect the reputation of the legal profession. It is here that a clear difference emerges between Went For It and 44 Liquormart with an important message for First Amendment advocates.

It is by now well settled that to sustain a restriction on commercial speech a state may not rely on “mere speculation and conjecture.” Rather, Florida had the considerable burden of demonstrating that “the harms it recites are real and that its restriction will in fact alleviate them” in a “direct and material way.”

To meet this burden, the Florida Bar relied on a 106-page summary of a two-year study it had completed in 1989 of the effects of lawyer advertising and soliciting on public opinion. Justice O’Connor extensively cited the summary’s statistical and anecdotal data, referring to the latter as “noteworthy for its breadth and detail.”

Now, never mind that Justice Kennedy properly responded that, when examined for its scientific and methodological failings, the Bar’s study in fact is “noteworthy for its incompetence” and that its “most generous reading” on the issue of direct mail solicitations yields nothing more than “a few pages of self-serving and unsupported statements by the State.”

Forget too that, as the dissent appreciated, the Florida Bar’s purported conclusion from its study is refuted by a little common sense: Attorneys soliciting clients would not persist in using a method that actually was offensive to or angered a significant number of potential clients, or fostered negative feelings toward lawyers.

Indeed, both a few months before and a few months after the decision in Went For It, the American Bar Association Commission on Advertising published studies casting significant doubt on the adverse conclusions the Florida Bar reached.

The ABA Commission concluded, first, that the factors contributing to a decline in the public image of lawyers are perceptions about lawyers regarding honesty, caring, and value, not advertising. Second, the Commission concluded there is little nexus between lawyer (television) advertising, even “sensational” such advertising, and public opinions about lawyers in general.

Thus, the most salient legal feature of the Florida Bar’s study, as the crucial linchpin of the majority’s opinion, was that it was unrefuted. Perhaps troubled by Justice Kennedy’s devastating critique, Justice O’Connor three times emphasized that the empirical and anecdotal evidence from the Bar’s study was unrebutted, as if to say: “If it is so bad, why didn’t the plaintiffs demonstrate its failings?”

This is in marked contrast with 44 Liquormart in which four Justices noted the absence of “any evidentiary support whatsoever...that the price advertising ban will significantly advance the State’s interest” in reducing alcohol consumption. Justice O’Connor highlighted this crucial distinction in Went For It when she contrasted the Florida Bar’s 30-day prohibition with another Florida ban on in-person solicitation by CPAs struck down in Edenfield v. Fane. The record in Edenfield also lacked any studies or anecdotal evidence supporting the State’s allegations of harm.

The willingness of courts to sustain some restrictions on free speech based on the slimmest of evidence, or even none, is unfortunately expanding. Lately, one merely has to assert, for example, that the interests of children are at stake to garner substantial judicial support.

The well-being of children, like perhaps the stature of the legal profession simpliciter, well may be a substantial state interest. The crucial question, however, is the relationship, if any, between significantly advancing the asserted state interest and the state regulation of expression at issue.

The D.C. Circuit, for example, recently upheld in Action for Children’s Television a congressional “safe harbor” provision channeling to late night hours television broadcast of so-called “indecent” material. In doing so the court avoided the key empirical issue by denying the need for “clinically measurable injury” to children or expert testimony of psychiatrists and social scientists.

Instead, Congress could simply “take note of the coarsening of impressionable minds” that the amorphous, ill-defined category of broadcast indecency presumably could cause. Such a malleable, standardless approach eviscerates First Amendment protection for speech, be it for broadcasting, commercial speech, or in any other context.

Moreover, the importance of focusing on the empirical evidence at the trial court level is increased by the leverage the Court is willing to apply to such evidence even in evaluating First Amendment claims.

City of Renton v. Playtime Theaters, Inc. involved a challenge to a restrictive zoning ordinance for adult theaters. The City of Renton, Wash., premised its ordinance on the supposed adverse secondary effects of such theaters on the neighborhoods they occupy and on the general quality of urban life.

But there was no study of Renton’s particular problems or needs in these regards. Rather, Renton relied on the experience of, and studies produced by, the City of Seattle. The Court specifically held that this was sufficient.

In Went For It, Justice O’Connor cited Renton for the adequacy of one locale relying on studies and anecdotes pertaining to quite different locales. The danger, therefore, is that one unrefuted body of empirical evidence, however flawed, may be magnified into a broadly applicable unfortunate precedent.

First Amendment advocates thus cannot afford to treat lightly even apparently shoddy empiricism cited in support of state restrictions on expression. Rather, they must be prepared if necessary to resist the understandable temptation to seek summary judgment, as in Went For It, and instead create a strong factual record at the trial court level.

The aftermath of Went For It supports this conclusion. In the fall of 1996, Congress prohibited lawyers from soliciting victims of airplane accidents or their families for 30 days, but without any apparent, specific justification.

Just after Went For It, the Fifth Circuit in Morales upheld a Texas 30-day ban on direct mail solicitation as applied to lawyers because the Supreme Court opinion controlled and did not require an “overwhelming record.” But as to other licensed groups covered by the Texas statute, such as medical providers and private investigators, the Fifth Circuit remanded for lack of a sufficient evidentiary record.

Two courts have distinguished Went For It. In Curran, Maryland’s 30-day ban on written solicitation applied to potential clients facing criminal prosecutions and thus involved very different issues and interests not supported by the state’s adduced testimony.

In Revo, a state’s temporally unlimited ban on attorney direct mail solicitation of personal injury victims was too broad and unsupported by the state’s bare assertions that such solicitations are inherently misleading.

In another tactic, states have tried to curtail client solicitation by denying lawyers access to information in otherwise public records if the information is to be used for commercial solicitation purposes. But this approach again implicates different First Amendment considerations allowing courts to distinguish Went For It, especially in the absence of evidence supporting the states’ interests.

Finally, even a state statute mandating certain disclosures in lawyers’ television advertisements — the sort of regulation generally easiest to sustain — was invalidated in Miller because the state failed to proffer sufficient data to meets its burdens.

Went For It is rather an aberration in the Court’s 20-year history of allowing lawyer advertising and soliciting, especially given the Court’s expanding protection for commercial speech as in 44 Liquormart. But as the lower court cases of the last two years indicate, Went For It hardly signals as yet any substantial retrenchment.

Those, however, who wish to preserve the right of lawyers to apprise potential clients of their services, and the public’s right to receive such information, will have to be increasingly vigilant and emphatic about challenging each and every aspect of a state’s legal and empirical arguments.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. __, 116 S. Ct. 1495 (1996).

Anheuser-Busch, Inc. v. Schmoke, 116 S. Ct. 1821 (1996), reaff’d, 101 F.3d 325 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997).

Penn Advertising of Baltimore, Inc. v. Schmoke, 116 S. Ct. 2575 (1996), reaff’d, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997).

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

Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986).

Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374 (1996) (Breyer, J., concurring).

Turner Broadcasting System, Inc. v. FCC, 117 S. Ct. 1174, 1203 (1997) (Breyer, J., concurring).

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

Edenfield v. Fane, 113 S. Ct. 1792 (1993).

Action for Children’s Television v. FCC, 58 F.3d 654, 661-62 (D.C. Cir. 1995) (en banc), cert denied, 116 S. Ct. 701 (1996).

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).

Moore v. Morales, 63 F.3d 358 (5th Cir. 1995), cert. denied sub nom. Ventura v. Morales, 116 S. Ct. 917 (1996).

Ficker v. Curran, 950 F. Supp. 123 (D. Md. 1996), aff’d, 1997 WL 409165 (4th Cir. July 23, 1997).

Revo v. Disciplinary Board, 106 F.3d 929 (10th Cir. 1997).

Tillman v. Miller, 24 Med. L. Rptr. 2561 (N.D. Ga. 1996, No. 1:95-CV-1594-CC).