Florida Bar v. Went For It, Inc.
515 U.S. 618 (1995)
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Rule of Law:
A state may constitutionally impose a temporary ban on targeted, direct-mail solicitations by lawyers to accident victims and their relatives if the restriction directly and materially advances a substantial state interest, such as protecting citizens' privacy and the legal profession's reputation. Such a regulation is permissible as long as it is narrowly tailored and represents a reasonable fit between the state's objectives and the means chosen to achieve them.
Facts:
- Following a two-year study on the effects of lawyer advertising, the Florida Bar determined that the public viewed direct-mail solicitations sent to victims immediately after accidents as an intrusion on privacy that reflected poorly on the legal profession.
- Based on these findings, the Florida Supreme Court adopted new rules for the Bar.
- Rule 4-7.4(b)(1) prohibited lawyers from sending targeted written communications concerning personal injury or wrongful death actions to victims or their relatives, unless the accident occurred more than 30 days prior to the mailing.
- Rule 4-7.8(a) prohibited lawyers from accepting referrals from any lawyer referral service that did not comply with the 30-day blackout period.
- G. Stewart McHenry and his lawyer referral service, Went For It, Inc., routinely sent targeted solicitations to accident victims within 30 days of accidents and wished to continue this practice.
- The Bar's study included surveys indicating that 54% of the public felt such contact was a violation of privacy and 27% of recipients reported that their regard for the legal profession was lowered as a result of receiving the direct mail.
Procedural Posture:
- G. Stewart McHenry and Went For It, Inc. sued the Florida Bar in the U.S. District Court for the Middle District of Florida, seeking declaratory and injunctive relief.
- A Magistrate Judge recommended granting summary judgment in favor of the Florida Bar.
- The District Court rejected the Magistrate's recommendation and entered summary judgment for the plaintiffs (McHenry and his substitute, John T. Blakely).
- The Florida Bar, as appellant, appealed to the U.S. Court of Appeals for the Eleventh Circuit.
- The Eleventh Circuit affirmed the district court's judgment, holding the rules unconstitutional.
- The Florida Bar petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does a state bar rule that prohibits personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster violate the First and Fourteenth Amendments' protection of commercial speech?
Opinions:
Majority - Justice O'Connor
No. The Florida Bar rules prohibiting targeted direct-mail solicitations to victims for 30 days after an accident do not violate the First Amendment. Applying the Central Hudson test for commercial speech, the Court found the Bar's restrictions constitutional. The Bar asserted substantial state interests in protecting the privacy and tranquility of its citizens from intrusive conduct by lawyers and in preventing the erosion of public confidence in the legal profession. The Court found that the Bar's two-year study, replete with statistical and anecdotal evidence, demonstrated that the harms were real and that the ban would directly and materially alleviate them, distinguishing this case from others where the state provided no evidence. Finally, the regulation was deemed narrowly tailored, as it was limited in duration to 30 days and scope, leaving open ample alternative channels for lawyers to advertise and for injured parties to obtain legal counsel.
Dissenting - Justice Kennedy
Yes. The Florida Bar's 30-day ban on targeted direct-mail solicitations violates the First Amendment. The dissent argued that the asserted state interests were not substantial enough to justify the speech restriction, as the Court has consistently held that speech cannot be banned simply because it might offend the recipient. The dissent heavily criticized the Bar's evidentiary support—the "Summary of Record"—as incompetent, self-serving, and falling well short of proving the alleged harms were real. Furthermore, the ban was not a reasonable fit, as it was a disproportionate, flat ban that prevents victims, especially the least sophisticated, from receiving timely and vital information about their legal rights when they may need it most, particularly when insurance adjusters are free to contact them immediately.
Analysis:
This decision represents a significant refinement of commercial speech doctrine, particularly as applied to attorney advertising in cases like Shapero v. Kentucky Bar Assn. The Court signaled that while truthful, non-deceptive attorney advertising is protected, states have greater latitude to regulate it when they can present concrete, empirical evidence of actual harm to substantial state interests, such as citizen privacy and professional integrity. Florida Bar empowers states to enact narrowly tailored, temporary restrictions on solicitation targeting vulnerable individuals, provided the regulation is justified by more than mere speculation. This case shifts the focus from a categorical protection of such speech to a more context-sensitive analysis where the state's evidentiary showing is paramount.
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