Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio

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Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued January 7, 1985
Decided May 28, 1985
Full case nameZauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio
Citations471 U.S. 626 ( more )
105 S. Ct. 2265; 85 L. Ed. 2d 652
Case history
PriorOffice of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 461 N.E.2d 883 (1984); probable jurisdiction noted, 469 U.S. 813(1984).
Holding
A State may require advertisers to include "purely factual and uncontroversial" disclosures without violating the First Amendment rights of the advertiser as long as the disclosure is in the State's interest in preventing deception of consumers.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan Jr.  · Byron White
Thurgood Marshall  · Harry Blackmun
Lewis F. Powell Jr.  · William Rehnquist
John P. Stevens  · Sandra Day O'Connor
Case opinions
MajorityWhite, joined by Blackmun, Stevens (in full), Brennan, Marshall (Parts I, II, III, and IV), Burger, Rehnquist, O'Connor (Parts I, II, V, and VI)
Concur/dissentBrennan, joined by Marshall
Concur/dissentO'Connor, joined by Burger, Rehnquist

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. [1] 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".

Contents

Background

Philip Q. Zauderer was an attorney practicing in Columbus, Ohio. To expand his business, in 1981, he had an advertisement printed in The Columbus Citizen-Journal offering to represent clients charged with drunk driving, with language stating that their legal fees would be refunded if they were convicted of drunk driving. On the second day the ad was run, the Office of Disciplinary Counsel for the Supreme Court of Ohio contacted Zauderer, stating that the ad appeared to suggest he would represent criminal defendants on a contingent-fee basis, which violated the state's Code of Professional Responsibility. Zauderer immediately withdrew the ad and stated he would not take any cases from people responding to the ad.

Later, in 1982, Zauderer took another advertisement in several Ohio newspapers, this time offering his services on a contingent-fee basis for any women that may have been injured by the Dalkon Shield intrauterine device. His ad included an illustration of the Dalkon Shield, and descriptive language of the alleged injuries that women may have suffered from the device. While the ad successfully drew him clients, the Office of Disciplinary Counsel took further issue with this ad, and formally filed a complaint against Zauderer resulting from ads for violating several Ohio Disciplinary Rules. Among several complaints, the Office specifically called to the illustration and language that Zauderer used within the Dalkon ad as failing to be "dignified". Other violations asserted by the state including the misleading information on the drunk driving ad, how he offered his services in the Dalkon ad, and choice of language to represent his contingent-fee basis, including omission that clients may still be liable for costs, in and above attorney fees, even if they would lose the case. The Office specifically noted that they did not consider other information and advice in the Dalkon ad to be fraudulent or misleading.

At his hearing at the Board of Commissioners on Grievances and Discipline for the Ohio Supreme Court, Zauderer stated that Ohio's Disciplinary Rules related to the content of advertisements violated his rights to advertise under the First Amendment, as previously decided by Bates v. State Bar of Arizona , 433 U.S. 350(1977), and In re R.M.J., 455 U.S. 191(1982). The Board rejected Zauderer's defense, and on his appeal, the Supreme Court of Ohio upheld the conclusions from the Board, specifically noting that Bates and In re R.M.J. were aimed towards preventing deceptive advertising. The Supreme Court of Ohio also stated that In re R.M.J. suggested that states could regulate non-deceptive advertising to serve a narrow state interest; in this case, requiring disclosure of contingent-fee arrangements was deemed necessary by the state to assure potential clients would not misled.

Supreme Court

Zauderer petitioned to the Supreme Court on several issued raised by the case, which accepted the case and heard oral arguments on January 7, 1985. The Court issued its decision on May 25, 1985. While the Court reversed some of the disciplinary actions against Zauderer by the Supreme Court of Ohio, it affirmed that court's decision that the state could regulate commercial speech. With Justice Lewis F. Powell Jr. not participating in the case, the opinion of a generally-unanimous count was written by Justice Byron White, joined in full by Justices Blackmun and Stevens, and in part by Brennan and Marshall (both who joined a concurrence in part and dissent in part) and in part by Burger, Rehnquist and O'Connor (who also joined in a separate concurrence in part and dissent in part).

The principal matter of Zauderer centered on the requirement of Ohio's Disciplinary Rules for disclosure of contingent-fee arrangements. White wrote:

The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [B]ecause disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, “warning[s] or disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.

Due to this reasoning, the Court upheld the disciplinary action against Zauderer for failing to disclose the contingent-fee terms from both ads, while following similar logic, found that the state had no protected interest against the use of factual illustrative material nor claims of representation, and overturned the Office's actions on these points. [2]

Impact

Zauderer has led to the establishment of the "Zauderer standard" to determine when a state's interest in compelling parts of commercial speech is valid. This test employs the "purely factual and uncontroversial information" language from the Zauderer decision to judge if such disclosure requirements are constitutional compelled commercial speech. The standard is frequently used in cases involving the labeling of food or other products. [3] [4] [5] [6] [7]

The Zauderer standard has generally been held for when the government is seeking to prevent deception, but within the 21st century, a number of cases heard at the Circuit courts have considered the Zauderer standard applied to government language that is not strictly to prevent deception, creating a precedent. Such cases include:

The Supreme Court case of National Institute of Family and Life Advocates v. Becerra 585 U.S. ___(2018) established that there is a limit to how much Zauderer can apply; the Court ruled that required signage to be posted at crisis pregnancy centers notifying potential patients of state-provided abortion services did not fall under the Zauderer standard as it was unjustified and imposed a burden on a specific targeted set of speakers. [11] The Court subsequently ordered the CTIA case, which had been petitioned to the Supreme Court, to be reconsidered in light of the National Institute of Family and Life Advocates decision. [12] The appeals court reconsidered and reaffirmed its previous conclusion, stating that Berkeley's warning is “literally true,” promotes public health and does not require retailers to post messages that violate their beliefs. [13] The Supreme Court then rejected a subsequent telecommunications industry challenge. [14] [15]

Related Research Articles

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In law, commercial speech is speech or writing on behalf of a business with the intent of earning revenue or a profit. It is economic in nature and usually attempts to persuade consumers to purchase the business's product or service. The Supreme Court of the United States defines commercial speech as speech that "proposes a commercial transaction".

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.

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Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), deals with First Amendment rights and unions in public employment.

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.

Valentine v. Chrestensen, 316 U.S. 52 (1942), was a case in which the Supreme Court of the United States ruled that commercial speech in public thoroughfares is not constitutionally protected.

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Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), was a United States Supreme Court case that dealt with the authority of states to regulate the electoral process, and the point at which state regulations of the electoral process violate the First Amendment freedoms.

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Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), was a landmark decision of the US Supreme Court that struck down a 2005 California law banning the sale of certain violent video games to children without parental supervision. In a 7–2 decision, the Court affirmed the lower court decisions and nullified the law, ruling that video games were protected speech under the First Amendment as other forms of media.

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Compelled speech is a transmission of expression required by law. A related legal concept is protected speech. Just as freedom of speech protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which that individual disagrees.

National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755 (2018), was a case before the Supreme Court of the United States addressing the constitutionality of California's FACT Act, which mandated that crisis pregnancy centers provide certain disclosures about state services. The law required that licensed centers post visible notices that other options for pregnancy, including abortion, are available from state-sponsored clinics. It also mandated that unlicensed centers post notice of their unlicensed status. The centers, typically run by Christian non-profit groups, challenged the act on the basis that it violated their free speech. After prior reviews in lower courts, the case was brought to the Supreme Court, asking "Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the Fourteenth Amendment."

Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018), abbreviated Janus v. AFSCME, is a landmark decision of the US Supreme Court on US labor law, concerning the power of labor unions to collect fees from non-union members. Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be allowed by state law. The Supreme Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overruling the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.

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References

  1. ↑ Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).
  2. ↑ Greenhouse, Linda (May 29, 1985). "Supreme Court Roundup; Justices Rule That Lawyers Can Advertise For Specific Cases". The New York Times . Retrieved July 2, 2018.
  3. ↑ Alison Frankel (April 24, 2017). "When the government can make businesses talk". Reuters. Retrieved June 28, 2018.
  4. ↑ "- The Washington Post". washingtonpost.com. Retrieved June 28, 2018.
  5. ↑ "Repackaging Zauderer". Harvard Law Review. January 5, 2017. Retrieved June 28, 2018.
  6. ↑ "scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3412&context=penn_law_review". scholarship.law.upenn.edu. Retrieved June 28, 2018.
  7. ↑ "openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1910&context=law_journal_law_policy". openscholarship.wustl.edu. Retrieved June 28, 2018.
  8. ↑ Adler, Jonathan (July 30, 2014). "En banc D.C. Circuit upholds USDA country-of-origin labeling rule". Washington Post . Retrieved June 28, 2018.
  9. ↑ "NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION v. Conservation Law Foundation, Inc., Vermont Public Interest Research Group, Vermont Natural Resources Council, Inc., National Wildlife Federation, Lake Champlain Committee, New Hampshire, State of, New Hampshire Department of Environmental Services, Mercury Policy Project, Movants". FindLaw. Retrieved July 6, 2018.
  10. ↑ Frankel, Alison (April 24, 2017). "When the government can make businesses talk". Reuters . Retrieved June 28, 2018.
  11. ↑ Volokh, Eugene (June 26, 2018). "NIFLA v. Becerra and Speech Compulsions". Reason . Retrieved June 28, 2018.
  12. ↑ "Miscellaneous Order (06/28/2018) (ORDER LIST: 585 U.S.)" (PDF). June 27, 2018. Retrieved July 6, 2018.
  13. ↑ CTIA-The Wireless Association vs. Berkeley ( United States Court of Appeals for the Ninth Circuit 3 July 2019)("The text of the compelled disclosure is literally true.").
  14. ↑ Egelko, Bob (December 9, 2019). "Berkeley's cell-phone health warning survives Supreme Court challenge". San Francisco Chronicle.
  15. ↑ Davis, Devra (December 10, 2019). "Supreme Court Rejects Cell Phone Industry Challenge To Berkeley Ordinance". International Business Times.
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