By David L. Hudson Jr., First Amendment Scholar
Updated December 2008
Attorney ads are everywhere, featured on television, the Yellow Pages, direct-mail solicitation letters, billboards, Web sites, and the backs of bus-stop benches. They flood the marketplace, informing consumers of their choices of legal counsel. “Protect Your Rights,” “We’ll Fight for You,” and “Don’t Settle for Less” have become familiar refrains.
Such was not always the case. For most of the 20th century, attorney advertising was forbidden by bar associations. For many years, the only form of permissible advertising was business cards. In fact, the American Bar Association’s first ethics code, adopted in 1908, allowed just printed cards.
Though restricting advertising obviously infringes on the freedom of speech, for a long time the U.S. Supreme Court found no First Amendment violation in such restrictions. In its 1942 decision Valentine v. Chrestensen, the Court wrote: “We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”
It was not until the 1970s that the Court ruled that so-called commercial speech — or speech that does no more than propose a commercial transaction — was entitled to some degree of First Amendment protection.
In 1976, the Court struck down a Virginia law forbidding pharmacists from advertising prescription drug prices. In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., Justice Harry Blackmun wrote that “the free flow of commercial information is indispensable.” He added that “[a]s to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”
Bates v. State Bar of Arizona
The very next year the Court first determined that attorney advertising was a form of commercial speech entitled to some degree of First Amendment protection in Bates v. State Bar of Arizona. The dispute in Bates began when two Arizona attorneys placed an ad in The Arizona Republic newspaper. The ad quoted prices for certain routine legal services.
This action violated an attorney disciplinary rule that provided: “A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.”
The president of the Arizona bar filed a complaint against the two lawyers, who argued that the ban on attorney ads in newspapers violated the First Amendment. The case eventually reached the U.S. Supreme Court. The Court sided with the attorneys: “Like the Virginia statutes (at issue in Virginia State Bd. of Pharmacy and Bigelow v. Virginia), the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.”
The Arizona bar made several arguments against the attorney newspaper ads, including that they:
The Supreme Court rejected all of these arguments by a 5-4 vote. The majority found “the postulated connection between advertising and the erosion of true professionalism to be severely strained.” It also described the historical aversion to attorney ads as a “rule of etiquette” rather than a “rule of ethics.”
The Court reasoned that “the prohibition of advertising serves only to restrict the information that flows to consumers” and that “advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.”
Though it ruled in favor of the attorneys, the majority cautioned that not all advertising by attorneys should receive First Amendment protection. False, deceptive or misleading attorney advertising is unprotected, the Court said. Warnings or disclaimers may be required in some attorney ads. The Court also noted that restraints on in-person solicitation may be appropriate.
The Bates decision led to an increase in attorney advertising. Then, in a series of later cases, the Supreme Court struck down even more restrictions. From 1977 until 1995, the only time the Court upheld a restriction on attorney speech, it involved a ban on in-person solicitation.
In Ohralik v. Ohio State Bar Assn. (1978), the Court distinguished between in-person solicitation from a newspaper ad, finding that the former was far more coercive. “Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection,” the Court wrote.
In other decisions, however, the Court sided with attorneys in advertising cases. Prominent First Amendment scholar Rodney Smolla has written: “Despite the decision in Ohralik, the broad trend by the Supreme Court has been to favor freeing the speech of lawyers.”
The Court has struck down:
However, in 1995, the Court sided with Florida State Bar officials and upheld a 30-day ban on attorney solicitation letters in Florida Bar v. Went For It, Inc.The Court noted that Shapero dealt with a total ban on solicitation letters, while the Florida rule only prohibited such letters for 30 days after an accident. In theWent For It case the Court also placed greater emphasis on the privacy concerns of accident victims and their families. Finally, the majority relied on a 106-page survey done by the Florida bar that contained much anecdotal evidence of public dissatisfaction with attorney advertising.
The Went For It decision emboldened bar regulators across the country to pass similar 30-day bans on attorney solicitation letters. Legal commentator John Phillips has referred to this pattern as a “continual erosion of First Amendment rights.”
Restrictions in era of greater commercial-speech protection
Ironically, the Went For It decision and other regulations on attorney speech have occurred during a time when the U.S. Supreme Court has more searchingly scrutinized restrictions on commercial speech in general. Though the majority of the Court still accords commercial speech less protection than other forms of noncommercial speech (like political speech), some of the justices have expressed dissatisfaction with the second-class status of commercial speech. Justice Clarence Thomas spoke forcefully on the issue in his concurring opinion in a liquor-ad case (44 Liquormart, Inc. v. Rhode Island) in 1996: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech. Indeed, some historical materials suggest to the contrary.”
Though the Court has struck down many restrictions on commercial speech, “Bar regulators seem unwilling to get with the free speech program,” says Smolla. “Ignoring the broad movement and driving philosophy behind modern commercial speech jurisprudence, they look instead for loopholes.”
Smolla’s prediction appears to be prescient. A prime example arose recently when the Florida Bar cited two attorneys for using pit bulls in their advertisements. The bar contended that the use of the pit-bull image was degrading to the legal profession and could be regulated. The Florida Supreme Court agreed with the Bar in Florida Bar v. Pape. The state high court wrote that the ads “demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice.” The two lawyers, assisted by Smolla, sought Supreme Court review, but the U.S. Supreme Court denied certiorari on March 27, 2006.
Other states are grappling with the issue of lawyer advertising that uses client testimonials. Supporters contend such testimonials provide more information to potential clients, while detractors say testimonials are potentially misleading to consumers by implying certain positive results for clients.
The New Jersey Supreme Court is currently considering whether to allow attorneys to advertise in Super Lawyers magazine. In July 2006, the Committee on Attorney Advertising in New Jersey ruled that it was impermissible for attorneys to communicate their selection in the magazine or to participate in Super Lawyers surveys. However, in June 2008, a “special master” issued a detailed report to the New Jersey Supreme Court that contradicted many of the findings by the advertising committee. (A special master is someone appointed by a court to carry out a task.) The New Jersey Supreme Court is expected to rule in 2009 on the issue.
Meanwhile, states must also grapple with the question of attorneys advertising online. Expect more controversies and cases in this contentious area in the future.
Smolla writes that “if commercial advertisers are First Amendment step-children, lawyers come closer to abandoned orphans.” It will take future litigation to determine whether lawyers will receive the same level of commercial-speech protection as other advertisers.