Are all attorney ads now protected?

Monday, December 9, 2002

No, not all. Attorney advertising is a form of commercial speech that is not entitled to the same level of First Amendment protection as other types of noncommercial speech, such as political speech.

Under the U.S. Supreme Court’s commercial-speech doctrine, the threshold question is whether the attorney ad concerns lawful activity and is not misleading. Thus, the government freely may regulate false and misleading attorney ads. If the attorney ad is not false or misleading (or does not concern illegal material), then the government can regulate the ad only if: (1) the government has a substantial interest in regulating the attorney ad; (2) the government’s regulation directly and materially advances its substantial interest; and (3) the regulation is narrowly tailored.

For example, the U.S. Supreme Court in its 1995 decision Florida Bar v. Went For It, Inc., upheld a Florida Bar restriction that prohibited attorney solicitation letters from being sent to accident victims or their families within 30 days of the accident. The Court reasoned that the 30-day ban on attorney solicitation letters was a narrowly tailored way to protect the privacy of accident victims and the reputation of lawyers.