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SUPREME COURT OF THE UNITED STATES
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No. 94-226
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FLORIDA BAR, PETITIONER v. WENT FOR IT,
INC., and JOHN T. BLAKELY
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[June 21, 1995]

  Justice Kennedy, with whom Justice Stevens,
Justice Souter, and Justice Ginsburg join, dissenting.

  Attorneys who communicate their willingness to assist
potential clients are engaged in speech protected by the
First and Fourteenth Amendments.  That principle has
been understood since Bates v. State Bar of Arizona, 433
U. S. 350 (1977).  The Court today undercuts this
guarantee in an important class of cases and unsettles
leading First Amendment precedents, at the expense of
those victims most in need of legal assistance.  With all
respect for the Court, in my view its solicitude for the
privacy of victims and its concern for our profession are
misplaced and self-defeating, even upon the Court's own
premises.
  I take it to be uncontroverted that when an accident
results in death or injury, it is often urgent at once to
investigate the occurrence, identify witnesses, and
preserve evidence.  Vital interests in speech and expres-
sion are, therefore, at stake when by law an attorney
cannot direct a letter to the victim or the family explain-
ing this simple fact and offering competent legal assis-
tance.  Meanwhile, represented and better informed
parties, or parties who have been solicited in ways more
sophisticated and indirect, may be at work.  Indeed,

these parties, either themselves or by their attorneys,
investigators, and adjusters, are free to contact the
unrepresented persons to gather evidence or offer
settlement.  This scheme makes little sense.  As is often
true when the law makes little sense, it is not first
principles but their interpretation and application that
have gone awry.
  Although I agree with the Court that the case can be
resolved by following the three-part inquiry we have
identified to assess restrictions on commercial speech,
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of N.Y., 447 U. S. 557, 566 (1980), a prelimi-
nary observation is in order.  Speech has the capacity to
convey complex substance, yielding various insights and
interpretations depending upon the identity of the
listener or the reader and the context of its transmis-
sion.  It would oversimplify to say that what we con-
sider here is commercial speech and nothing more, for
in many instances the banned communications may be
vital to the recipients' right to petition the courts for
redress of grievances.  The complex nature of expression
is one reason why even so-called commercial speech has
become an essential part of the public discourse the
First Amendment secures.  See, e.g., Edenfield v. Fane,
507 U. S. __, __ [113 S. Ct. 1792, 1798] (1993).  If our
commercial speech rules are to control this case, then,
it is imperative to apply them with exacting care and
fidelity to our precedents, for what is at stake is the
suppression of information and knowledge that tran-
scends the financial self-interests of the speaker.

                            I
  As the Court notes, the first of the Central Hudson
factors to be considered is whether the interest the State
pursues in enacting the speech restriction is a substan-
tial one.  Ante, at 5.  The State says two different
interests meet this standard.  The first is the interest
-in protecting the personal privacy and tranquility- of
the victim and his or her family.  Brief for Petitioner 8.
As the Court notes, that interest has recognition in our
decisions as a general matter; but it does not follow that
the privacy interest in the cases the majority cites is
applicable here.  The problem the Court confronts, and
cannot overcome, is our recent decision in Shapero v.
Kentucky Bar Assn., 486 U. S. 466 (1988).  In assessing
the importance of the interest in that solicitation case,
we made an explicit distinction between direct in-person
solicitations and direct mail solicitations.  Shapero, like
this case, involved a direct mail solicitation, and there
the State recited its fears of -overreaching and undue
influence.-  Id., at 475.  We found, however, no such
dangers presented by direct mail advertising.  We
reasoned that -[a] letter, like a printed advertisement
(but unlike a lawyer), can readily be put in a drawer to
be considered later, ignored, or discarded.-  Id., at
475-476.  We pointed out that -[t]he relevant inquiry is
not whether there exist potential clients whose
`condition' makes them susceptible to undue influence,
but whether the mode of communication poses a serious
danger that lawyers will exploit any such susceptibility.-
Id., at 474.  In assessing the substantiality of the evils
to be prevented, we concluded that -the mode of commu-
nication makes all the difference.-  Id., at 475.  The
direct mail in Shapero did not present the justification
for regulation of speech presented in Ohralik v. Ohio
State Bar Assn., 436 U. S. 447 (1978) (a lawyer's direct,
in-person solicitation of personal injury business may be
prohibited by the State).  See also Edenfield, supra, (an
accountant's direct, in-person solicitation of accounting
business did implicate a privacy interest, though not one
permitting state suppression of speech when other
factors were considered).
  To avoid the controlling effect of Shapero in the case
before us, the Court seeks to declare that a different
privacy interest is implicated.  As it sees the matter, the
substantial concern is that victims or their families will
be offended by receiving a solicitation during their grief
and trauma.  But we do not allow restrictions on speech
to be justified on the ground that the expression might
offend the listener.  On the contrary, we have said that
these -are classically not justifications validating the
suppression of expression protected by the First Amend-
ment.-  Carey v. Population Services International, 431
U. S. 678, 701 (1977).  And in Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio, 471
U. S. 626 (1985), where we struck down a ban on
attorney advertising, we held that -the mere possibility
that some members of the population might find adver-
tising . . . offensive cannot justify suppressing it.  The
same must hold true for advertising that some members
of the bar might find beneath their dignity.-  Id., at 648.
  We have applied this principle to direct mail cases as
well as with respect to general advertising, noting that
the right to use the mails is protected by the First
Amendment.  See Bolger v. Youngs Drug Products Corp.,
463 U. S. 60, 76 (1983) (Rehnquist, J., concurring)
(citing Blount v. Rizzi, 400 U. S. 410 (1971).  In Bolger,
we held that a statute designed to -shiel[d] recipients of
mail from materials that they are likely to find offen-
sive- furthered an interest of -little weight,- noting that
-we have consistently held that the fact that protected
speech may be offensive to some does not justify its
suppression.-  463 U. S., at 71 (citing Carey, supra, at
701).  It is only where an audience is captive that we
will assure its protection from some offensive speech.
See Consolidated Edison Co. of N.Y. v. Public Service
Comm'n of N.Y., 447 U. S. 530, 542 (1980).  Outside
that context, -we have never held that the Government
itself can shut off the flow of mailings to protect those
recipients who might potentially be offended.-  Bolger,
supra, at 72.  The occupants of a household receiving
mailings are not a captive audience, ibid., and the
asserted interest in preventing their offense should be
no more controlling here than in our prior cases.  All
the recipient of objectional mailings need do is to take
-the `short, though regular, journey from mail box to
trash can.'-  Ibid. (citation omitted).  As we have
observed, this is -an acceptable burden, at least so far
as the Constitution is concerned.-  Ibid.  If these cases
forbidding restrictions on speech that might be offensive
are to be overruled, the Court should say so.
  In the face of these difficulties of logic and precedent,
the State and the opinion of the Court turn to a second
interest: protecting the reputation and dignity of the
legal profession.  The argument is, it seems fair to say,
that all are demeaned by the crass behavior of a few.
The argument takes a further step in the amicus brief
filed by the Association of Trial Lawyers of America.
There it is said that disrespect for the profession from
this sort of solicitation (but presumably from no other
sort of solicitation) results in lower jury verdicts.  In a
sense, of course, these arguments are circular.  While
disrespect will arise from an unethical or improper
practice, the majority begs a most critical question by
assuming that direct mail solicitations constitute such a
practice.  The fact is, however, that direct solicitation
may serve vital purposes and promote the administration
of justice, and to the extent the bar seeks to protect
lawyers' reputations by preventing them from engaging
in speech some deem offensive, the State is doing
nothing more (as amicus the Association of Trial
Lawyers of America is at least candid enough to admit)
than manipulating the public's opinion by suppressing
speech that informs us how the legal system works.
The disrespect argument thus proceeds from the very
assumption it tries to prove, which is to say that
solicitations within 30 days serve no legitimate purpose.
This, of course, is censorship pure and simple; and
censorship is antithetical to the first principles of free
expression.

                           II
  Even were the interests asserted substantial, the
regulation here fails the second part of the Central
Hudson test, which requires that the dangers the State
seeks to eliminate be real and that a speech restriction
or ban advance that asserted State interest in a direct
and material way.  Edenfield, 507 U. S., at __ [113 S.
Ct., at 1800].  The burden of demonstrating the reality
of the asserted harm rests on the State.  Ibid.  Slight
evidence in this regard does not mean there is sufficient
evidence to support the claims.  Here, what the State
has offered falls well short of demonstrating that the
harms it is trying to redress are real, let alone that the
regulation directly and materially advances the State's
interests.  The parties and the Court have used the
term -Summary of Record- to describe a document
prepared by the Florida Bar, one of the adverse parties,
and submitted to the District Court in this case.  See
ante, at 8.  This document includes no actual surveys,
few indications of sample size or selection procedures, no
explanations of methodology, and no discussion of
excluded results.  There is no description of the statisti-
cal universe or scientific framework that permits any
productive use of the information the so-called Summary
of Record contains.  The majority describes this anec-
dotal matter as -noteworthy for its breadth and detail,-
ante, at 9, but when examined, it is noteworthy for its
incompetence.  The selective synopses of unvalidated
studies deal, for the most part, with television advertis-
ing and phone book listings, and not direct mail solicita-
tions.  Although there may be issues common to various
kinds of attorney advertising and solicitation, it is not
clear what would follow from that limited premise,
unless the Court means by its decision to call into
question all forms of attorney advertising.  The most
generous reading of this document permits identification
of 34 pages on which direct mail solicitation is arguably
discussed.  Of these, only two are even a synopsis of a
study of the attitudes of Floridians towards such
solicitations.  The bulk of the remaining pages include
comments by lawyers about direct mail (some of them
favorable), excerpts from citizen complaints about such
solicitation, and a few excerpts from newspaper articles
on the topic.  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.  See, e.g., Edenfield, 507 U. S., at __ [113 S. Ct.,
at 1800-1801].
  It is telling that the essential thrust of all the
material adduced to justify the State's interest is
devoted to the reputational concerns of the Bar.  It is
not at all clear that this regulation advances the
interest of protecting persons who are suffering trauma
and grief, and we are cited to no material in the record
for that claim.  Indeed, when asked at oral argument
what a -typical injured plaintiff get[s] in the mail,- the
Bar's lawyer replied: -That's not in the record. . . and I
don't know the answer to that question.-  Tr. of Oral
Arg. 25.  Having declared that the privacy interest is
one both substantial and served by the regulation, the
Court ought not to be excused from justifying its
conclusion.
                           III
  The insufficiency of the regulation to advance the
State's interest is reinforced by the third inquiry
necessary in this analysis.  Were it appropriate to reach
the third part of the Central Hudson test, it would be
clear that the relationship between the Bar's interests
and the means chosen to serve them is not a reasonable
fit.  The Bar's rule creates a flat ban that prohibits far
more speech than necessary to serve the purported state
interest.  Even assuming that interest were legitimate,
there is a wild disproportion between the harm supposed
and the speech ban enforced.  It is a disproportion the
Court does not bother to discuss, but our speech juris-
prudence requires that it do so.  Central Hudson, 447
U. S., at 569-571; Board of Trustees of State University
of N.Y. v. Fox, 492 U. S. 469, 480 (1989).
  To begin with, the ban applies with respect to all
accidental injuries, whatever their gravity.  The Court's
purported justification for the excess of regulation in this
respect is the difficulty of drawing lines between severe
and less serious injuries, see ante, at 14, but making
such distinctions is not important in this analysis.  Even
were it significant, the Court's assertion is unconvincing.
After all, the criminal law routinely distinguishes
degrees of bodily harm, see, e.g., United States Sentenc-
ing Commission, Guidelines Manual 1B1.1, comment.,
n. 1(b), (h), (j) (Nov. 1994), and if that delineation is
permissible and workable in the criminal context, it
should not be -hard to imagine the contours of a
regulation- that satisfies the reasonable fit requirement.
Ante, at 14.
  There is, moreover, simply no justification for assum-
ing that in all or most cases an attorney's advice would
be unwelcome or unnecessary when the survivors or the
victim must at once begin assessing their legal and
financial position in a rational manner.  With regard to
lesser injuries, there is little chance that for any period,
much less 30 days, the victims will become distraught
upon hearing from an attorney.  It is, in fact, more
likely a real risk that some victims might think no
attorney will be interested enough to help them.  It is
at this precise time that sound legal advice may be
necessary and most urgent.
  Even as to more serious injuries, the State's argument
fails, since it must be conceded that prompt legal
representation is essential where death or injury results
from accidents.  The only seeming justification for the
State's restriction is the one the Court itself offers,
which is that attorneys can and do resort to other ways
of communicating important legal information to poten-
tial clients.  Quite aside from the latent protectionism
for the established bar that the argument discloses, it
fails for the more fundamental reason that it concedes
the necessity for the very representation the attorneys
solicit and the State seeks to ban.  The accident victims
who are prejudiced to vindicate the State's purported
desire for more dignity in the legal profession will be
the very persons who most need legal advice, for they
are the victims who, because they lack education,
linguistic ability, or familiarity with the legal system,
are unable to seek out legal services.  Cf. Trainmen v.
Virginia ex rel. Virginia State Bar, 377 U. S. 1, 3-4
(1964).
  The reasonableness of the State's chosen methods for
redressing perceived evils can be evaluated, in part, by
a commonsense consideration of other possible means of
regulation that have not been tried.  Here, the Court
neglects the fact that this problem is largely self-
policing: Potential clients will not hire lawyers who
offend them.  And even if a person enters into a
contract with an attorney and later regrets it, Florida,
like some other States, allows clients to rescind certain
contracts with attorneys within a stated time after they
are executed.  See, e.g., Rules Regulating the Florida
Bar, Rule 4-1.5 (Statement of Client's Rights) (effective
Jan. 1, 1993).  The State's restriction deprives accident
victims of information which may be critical to their
right to make a claim for compensation for injuries.
The telephone book and general advertisements may
serve this purpose in part; but the direct solicitation ban
will fall on those who most need legal representation: for
those with minor injuries, the victims too ill-informed to
know an attorney may be interested in their cases; for
those with serious injuries, the victims too ill-informed
to know that time is of the essence if counsel is to
assemble evidence and warn them not to enter into
settlement negotiations or evidentiary discussions with
investigators for opposing parties.  One survey reports
that over a recent 5-year period, 68% of the American
population consulted a lawyer.  N. Y. Times, June 11,
1995, section 3, p. 1, col. 1.  The use of modern
communication methods in a timely way is essential if
clients who make up this vast demand are to be advised
and informed of all of their choices and rights in select-
ing an attorney.  The very fact that some 280,000 direct
mail solicitations are sent to accident victims and their
survivors in Florida each year is some indication of the
efficacy of this device.  Nothing in the Court's opinion
demonstrates that these efforts do not serve some
beneficial role.  A solicitation letter is not a contract.
Nothing in the record shows that these communications
do not at the least serve the purpose of informing the
prospective client that he or she has a number of
different attorneys from whom to choose, so that the
decision to select counsel, after an interview with one or
more interested attorneys, can be deliberate and in-
formed.  And if these communications reveal the social
costs of the tort system as a whole, then efforts can be
directed to reforming the operation of that system, not
to suppressing information about how the system works.
The Court's approach, however, does not seem to be
the proper way to begin elevating the honor of the
profession.

                           IV
  It is most ironic that, for the first time since Bates v.
State Bar of Arizona, the Court now orders a major
retreat from the constitutional guarantees for commercial
speech in order to shield its own profession from public
criticism.  Obscuring the financial aspect of the legal
profession from public discussion through direct mail
solicitation, at the expense of the least sophisticated
members of society, is not a laudable constitutional goal.
There is no authority for the proposition that the
Constitution permits the State to promote the public
image of the legal profession by suppressing information
about the profession's business aspects.  If public respect
for the profession erodes because solicitation distorts the
idea of the law as most lawyers see it, it must be
remembered that real progress begins with more rational
speech, not less.  I agree that if this amounts to mere
-sermonizing,- see Shapero, 486 U. S., at 490
(O'Connor, J., dissenting), the attempt may be futile.
The guiding principle, however, is that full and rational
discussion furthers sound regulation and necessary
reform.  The image of the profession cannot be enhanced
without improving the substance of its practice.  The
objective of the profession is to ensure that -the ethical
standards of lawyers are linked to the service and
protection of clients.- Ohralik, 436 U. S., at 461.
  Today's opinion is a serious departure, not only from
our prior decisions involving attorney advertising, but
also from the principles that govern the transmission of
commercial speech.  The Court's opinion reflects a new-
found and illegitimate confidence that it, along with the
Supreme Court of Florida, knows what is best for the
Bar and its clients.  Self-assurance has always been the
hallmark of a censor.  That is why under the First
Amendment the public, not the State, has the right and
the power to decide what ideas and information are
deserving of their adherence.  -[T]he general rule is that
the speaker and the audience, not the government,
assess the value of the information presented.-
Edenfield, 507 U. S., at __ [113 S. Ct., at 1798].  By
validating Florida's rule, today's majority is complicit in
the Bar's censorship.  For these reasons, I dissent from
the opinion of the Court and from its judgment.