In a 5-4 decision, the Supreme Court in Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), established that states may impose time limit bans on direct mail attorney solicitation letters to protect the privacy rights of victims and the reputation of the bar.
Florida banned direct mail attorney solicitation within 30 days of an accident
In 1987 the Florida Bar began a two-year study of the public’s perception of attorney advertising. The study report was filled with anecdotal evidence of the public’s distaste for lawyers’ solicitations. On the basis of the study, the Florida Supreme Court amended its rules to impose a ban on lawyers sending letters to victims or their family members within 30 days of an accident or disaster.
A lawyer referral service, Went for It, Inc., and its attorney-owner Stewart McHenry (who had to be replaced in the litigation after disbarment for other matters), challenged the 30-day ban on First Amendment grounds. In support, the plaintiffs cited the U.S. Supreme Court’s 1988 decision in Shapero v. Kentucky Bar Association in which the high court distinguished solicitation letters from the face-to-face solicitation prohibited in Ohralik v. Ohio State Bar Association (1978).
A federal magistrate recommended that summary judgment be granted to the Florida Bar, but a federal district court declined to follow the recommendation and instead ruled in favor of the plaintiffs on their First Amendment claims. A three-judge panel of the 11th U.S. Circuit Court of Appeals affirmed. The Florida Bar appealed to the Supreme Court, which upheld the 30-day ban.
Court upheld ban using First Amendment commercial speech test
Writing for the majority, Justice Sandra Day O’Connor analyzed the case under the Court’s test for evaluated restrictions on commercial speech established in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980).
Under the Central Hudson test, the government can restrict advertising (commercial speech) that concerns an illegal product or service or that is deceptive. If the speech concerns lawful activity and is not misleading, the government must establish a substantial state interest, and show that its regulation directly and materially advances its interest and is narrowly drawn.
Applying Central Hudson, O’Connor accepted two state interests as substantial: the privacy rights of accident victims and their families and the reputational interests of the bar. She relied on the Florida Bar’s 106-page summary of its two-year study in determining that the 30-day ban directly advanced these interests.
“The anecdotal record mustered by the Bar is noteworthy for its breadth and detail,” she wrote. O’Connor also determined that the 30-day ban was narrowly drawn, distinguishing it from a complete ban on solicitation letters altogether.
Dissenters said ban did not satisfy Central Hudson test
Justice Anthony M. Kennedy wrote for the Court’s four dissenters, criticizing the majority for prohibiting attorneys from communicating to persons who may be in dire need of legal assistance.
He pointed out that there was no comparable 30-day ban on insurance adjusters, who may persuade accident victims to sign away important legal rights. Kennedy also questioned whether the bar’s study satisfied the Central Hudson requirement of direct and material advancement: “Our cases require something more than a few pages of self-serving and unsupported statements by the State to demonstrate that a regulation directly and materially advances the elimination of a real harm when the State seeks to suppress truthful and nondeceptive speech.”
After this decision, many state supreme courts imposed similar 30-day bans on attorney solicitation letters.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.