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 U.S. District Court. 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 had 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 stemmed from its perception that such solicitation "negatively affects the administration of justice," and hence also the reputation of lawyers as a whole.
In the district court, the Florida Bar had submitted a 106-page report containing "statistical and anecdotal" evidence supporting the contention that the public viewed direct-mail solicitations from lawyers soon after an accident as intrusive. In light of this evidence, the Supreme Court concluded that Florida's blackout period on direct solicitation advanced its interest in protecting the public from unwanted intrusions.
Additionally, the Court believed that the Bar's means of advancing its interest was acceptable. The Court found that the Bar's rule was" 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.
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.
Jim "The Hammer" Shapiro is an American attorney and author who was known in the Rochester and Florida areas for his aggressive television commercials, as well as for a letter of solicitation he sent to a comatose accident victim.
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), was an important case decided by the United States Supreme Court that laid out a four-part test for determining when restrictions on commercial speech violated the First Amendment of the United States Constitution. Justice Powell wrote the opinion of the court. Central Hudson Gas & Electric Corp. had challenged a Public Service Commission regulation that prohibited promotional advertising by electric utilities. Justice Brennan, Justice Blackmun, and Justice Stevens wrote separate concurring opinions, and the latter two were both joined by Justice Brennan. Justice Rehnquist dissented.
Attorney misconduct is unethical or illegal conduct by an attorney. Attorney misconduct may include: conflict of interest, overbilling, false or misleading statements, knowingly pursuing frivolous and meritless lawsuits, concealing evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while neglecting to disclose prior law which might counter the argument, or having sex with a client.
Legal advertising is advertising by lawyers (attorneys), solicitors and law firms. Legal marketing is a broader term referring to advertising and other practices, including client relations, social media, and public relations. It's a type of marketing undertaken by law firms, lawyers (attorneys) and solicitors that aims to promote the services of law firms and increase their brand awareness.
Bates v. State Bar of Arizona, 433 U.S. 350 (1977), was a United States Supreme Court case in which the Court upheld the right of lawyers to advertise their services. In holding that lawyer advertising was commercial speech entitled to protection under the First Amendment, the Court upset the tradition against advertising by lawyers, rejecting it as an antiquated rule of etiquette.
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), was a United States Supreme Court case in which the Court held that a complete ban on the advertising of alcohol prices was unconstitutional under the First Amendment, and that the Twenty-first Amendment, empowering the states to regulate alcohol, did not lessen other constitutional restraints of state power.
Florida Amendment 2 is an amendment made to the constitution of the U.S. state of Florida in 2008. It added Article I, Section 27 to the constitution, which defines marriage as a union only between one man and one woman, and thus bans the creation of similar unions, such as civil unions or same-sex marriage.
Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), was a 1986 appeal to the Supreme Court of the United States to determine whether Puerto Rico's Games of Chance Act of 1948 is in legal compliance with the United States Constitution, specifically as regards freedom of speech, equal protection and due process. In a 5–4 decision, the Supreme Court held that the Puerto Rico government (law) could restrict advertisement for casino gambling from being targeted to residents, even if the activity itself was legal and advertisement to tourists was permitted. The U.S. Supreme Court affirmed the Puerto Rico Supreme Court conclusion, as construed by the Puerto Rico Superior Court, that the Act and regulations do not facially violate the First Amendment, nor did it violate the due process or Equal Protection Clauses of the Fourteenth Amendment.
Lorillard v. Reilly, 533 U.S. 525 (2001), was a 2001 United States Supreme Court case brought by Lorillard Tobacco Company when Massachusetts instituted a ban on tobacco ads and sales of tobacco within 1,000 feet of schools and playgrounds. Lorillard argued that this was an infringement on its First Amendment rights and that the regulation was more extensive than necessary. Applying the Central Hudson Test, the U.S. Supreme Court held that Massachusetts' ban on advertising and tobacco sales was overbroad. The Supreme Court also held that the Massachusetts regulation was preempted by federal law.
In the United States, advertising of services by members of the profession of law is typically permitted but regulated by state court and bar association rules.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
In re Primus, 436 U.S. 412 (1978), was a United States Supreme Court case in which the Court held that solicitation of prospective litigants by nonprofit organizations that engage in litigation as a form of political expression and political association constitutes expressive and associational conduct entitled to First Amendment protection.
The company 1-800-411-PAIN Referral Service was an American medical and lawyer referral service until it closed in December 2018. The firm, based in Davie, Florida, was established in 1995 by Robert Lewin. The organization is an attorney-referral system for victims of motor vehicle accidents, slip and falls work-related injuries, and recreational accidents. The Florida Trend cited it as one of Florida's larger for-profit lawyer referral services, and Biotech Week cited the company as one of America's "leading treatment and lawyer referral resources for people injured in auto accidents."
Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015), was a United States Supreme Court case in which the court held that the First Amendment did not prohibit states from barring judges and judicial candidates from personally soliciting funds for their election campaigns since that specific restriction on candidate's speech was deemed to be narrowly tailored to serve the compelling interest of keeping the judiciary impartial. It is a rare instance of a government regulation passing strict scrutiny.
Packingham v. North Carolina, 582 U.S. 98 (2017), is a case in which the Supreme Court of the United States held that a North Carolina statute that prohibited registered sex offenders from using social media websites was unconstitutional because it violated the First Amendment to the U.S. Constitution, which protects freedom of speech.
Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), was a United States Supreme Court case in which the Court held that states can require an advertiser to disclose certain information without violating the advertiser's First Amendment free speech protections as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. The decision effected identified that some commercial speech may have weaker First Amendment free speech protections than non-commercial speech and that states can compel such commercial speech to protect their interests; future cases have relied on the "Zauderer standard" to determine the constitutionality of state laws that compel commercial speech as long as the information to be disclosed is "purely factual and uncontroversial".
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), was a case in which the United States Supreme Court upheld a city's ban on political advertising within its public transportation system. The Court ruled that ad space on public transit is not a "public forum", meaning that speech within this space receives lower First Amendment protections.
Ohralik v. Ohio State Bar Association, 436 US 447 (1978), was a decision by the Supreme Court of the United States that in-person solicitation of clients by lawyers was not protected speech under the First Amendment of the U.S. Constitution.
Peel v. Attorney Disciplinary Commission of Illinois, 496 US 91 (1990), was a decision of the Supreme Court of the United States that Illinois' rule against attorneys advertising themselves as "certified" violated their freedom of speech under the First Amendment. The Illinois Attorney Registration and Disciplinary Commission (IARDC) had found that Peel's letterhead, which stated that he was "Certified Civil Trial Specialist By the National Board of Trial Advocacy," had broken state professional rules, and the Illinois Supreme Court had adopted their recommendation of public sanction. The U.S. Supreme Court reversed, saying the letterhead was truthful, and the First Amendment favored disclosure over concealing information.
United States v. Hansen, 599 U.S. 762 (2023), was a United States Supreme Court case about whether a federal law that criminalizes encouraging or inducing illegal immigration is unconstitutionally overbroad, violating the First Amendment right to free speech.
