Justice O’Connor finally gets to write the majority opinion in an attorney advertising case. This case involved Florida’s 30-day prohibition on direct mail solicitation of victims and their families following an accident. The Supreme Court found that the prohibition met the Central Hudson test, based on Florida’s substantial interest in preserving accident victims’ privacy from an advertising method that reflected poorly on the legal profession.
However, what carried the day was data. Florida had commissioned a comprehensive study of public attitudes and perceptions toward attorney advertising; that study strongly supported Florida’s contention that accident victims found direct mail solicitation in the days following an accident to be highly distasteful. Without this empirical data, the case would almost certainly have gone the other way.
Takeaway: Went For It was a 5-4 decision, and the dissent argued persuasively that the first amendment rights of attorneys – as well as the interest of consumers in being informed of their legal options – outweighed any benefit in restricting this form of advertising. There’s a decent chance that Went For It would be revisited if a similar restriction were to reach the Supreme Court today. But the most important takeaway is this: restrictions on commercial speech can’t be driven by gut instinct or feeling. There must be empirical data showing that they are necessary.
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