Professional Advertising

Advertising by ‘‘professionals’’—a term used here to denote occupations licensed by the state such as attorneys and physicians—was virtually prohibited by state laws from the early twentieth century until the U.S. Supreme Court recognized a limited First Amendment right in such activity. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), first explicitly applied free speech rights to the advertisements of professionals— lawyers in that instance.

The Court in Bates ruled that a total prohibition on price advertising of routine services by lawyers, enforced by the Arizona Supreme Court, violated the First Amendment. The Court rejected the argument that advertising by professionals was sufficiently different from other kinds that the decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), did not apply to such advertising. In the Virginia case, the Court overturned its earlier rulings that ‘‘purely commercial’’ speech—that is, speech that simply proposes a commercial transaction—was not covered by the First Amendment. Although false and misleading statements in advertising are unprotected, regulations that ‘‘prohibited the free flow of truthful information’’ via advertising are subject to First Amendment scrutiny. The application of this standard to lawyers in Bates covers advertisements by other members of the licensed occupations, but the vast majority of cases involving professional advertising concern lawyers. In Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), the Court held that in-person solicitation by lawyers was not given the First Amendment protection of lawyer ads because of the intrusive nature of such contacts. However, targeted solicitation of clients by mail was protected in Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988).

Lawyer advertising has always been subject to a standard not applied to other advertisements; statements of comparative quality of legal services are not allowed in lawyer advertisements (and presumably not in advertising by other professionals). The concern is that there is no meaningful measure of quality. In recent years, lawyer advertising has been subject to more intense review by the Court than other forms of advertising. In Florida Bar v. Went- For-It, 516 U.S. 619 (1995), the Court, upheld, by a five-to-four vote, a Florida rule that prohibited personal injury lawyers from sending targeted direct mail solicitations to victims or their relatives for thirty days following an accident or disaster.

There are strong ideological differences among those who advocate greater freedom for lawyer advertising and those who urge strong curbs on its use. The latter see advertising by attorneys as basically not ‘‘professional’’ and believe it is a factor in the low regard for lawyers that many people have. The counterargument is that the advertisements that are most frequently the subject of litigation are those of personal injury lawyers who generally represent lower income clients with less information and access to lawyers than more affluent people, who have access to more information about lawyers. Thus, limiting lawyer advertising will limit information about access to justice to those probably most in need of it.

GERALD THAIN

Cases and Statutes Cited

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• Florida Bar v. Went-For-It, 516 U.S. 619 (1995)
• Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)
• Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988)
• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 478 (1976)