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Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541, 63 USLW 4644, 23 Media L. Rep. 1801

Facts

In 1989, the Florida Bar conducted a study on lawyer advertising and determined that changes to its advertising rules were necessary. In 1990, the Florida Supreme Court adopted amendments that included a 30-day ban on targeted direct-mail solicitations to accident victims. G. Stewart McHenry and his lawyer referral service filed a lawsuit challenging these rules as unconstitutional. The District Court initially ruled in favor of McHenry, but the Eleventh Circuit affirmed the Bar's rules, leading to the Supreme Court's review.

In March 1992, G. Stewart McHenry and his wholly owned lawyer referral service, Went For It, Inc., filed this action for declaratory and injunctive relief in the United States District Court for the Middle District of Florida challenging Rules 4–7.4(b)(1) and 4–7.8(a) as violative of the First and Fourteenth Amendments to the Constitution.

Issue

Do the Florida Bar rules prohibiting personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident violate the First and Fourteenth Amendments?

This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution.

Rule

Under the Central Hudson test, a restriction on commercial speech is permissible if the government asserts a substantial interest, demonstrates that the restriction directly and materially advances that interest, and shows that the regulation is narrowly drawn.

Under the “intermediate” scrutiny framework set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., a restriction on commercial speech that, like the advertising at issue, does not concern unlawful activity and is not misleading is permissible if the government: (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is “ ‘narrowly drawn.’ ”

Analysis

The Supreme Court found that the Florida Bar had a substantial interest in protecting the privacy and tranquility of personal injury victims and their families. The Bar's 30-day ban was deemed to directly address the public's negative perception of direct-mail solicitations immediately following accidents, which were viewed as intrusive. The Court concluded that the regulation was reasonably tailored to achieve its objectives, as it allowed for other means of communication during the 30-day period.

The Bar's 30–day ban on targeted direct-mail solicitation withstands Central Hudson scrutiny. First, the Bar has substantial interest both in protecting the privacy and tranquility of personal injury victims and their loved ones against invasive, unsolicited contact by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.

Conclusion

The Supreme Court reversed the lower court's decision, holding that the Florida Bar's 30-day ban on targeted direct-mail solicitation did not violate the First and Fourteenth Amendments.

Held: In the circumstances presented here, the Bar Rules do not violate the First and Fourteenth Amendments.

Who won?

Florida Bar prevailed in the case because the Supreme Court upheld the constitutionality of its 30-day ban on direct-mail solicitations, finding it justified under the First Amendment.

The Bar asserts that it has a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.

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