Opposition Brief — Cahill v. Alexander

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No. 10-203 . Laer

IN THE

Supreme Court of the Anited States

THOMAS J. CAHILL, ET AL..,

Petitioners,

i

JAMES L. ALEXANDER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

BRIAN WOLFMAN GREGORY A. BECK

600 New Jersey Avenue NW Counsel of Record

Washington, DC 20001 ALLISON M. ZIEVE

(202) 661-6582 PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

202) 588-1000

gbeck@citizen.org

Counsel for Respondents

November 2010

j-

QUESTION PRESENTED

Whether the First Amendment allows a state to im-

pose categorical restrictions on commercial speech when

the state concludes that the speech is “unverifiable” or

does not “assist the public in the intelligent selection of

counsel,” where the district court found, and the court of

appeals affirmed, that the state offered no evidence that

the speech is misleading or that the restrictions are rea-

sonably tailored to advance any legitimate state interest.

iis

TABLE OF CONTENTS

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Pe sateccadercercecsynercesossciasacnsvuaknemeecorsecitovencateansapwececies 5

1. There Is No Split of Authority Among the

ne I sag res aeeicne cies tavcniaeivesvoncechursaseunxaracnvvaveus OF

II. The State’s Proposed Rule Flies in the Face

of Established Precedent And Would Give

States Virtually Untrammeled Authority to

Restrict Commercial SPeecl........0cccccssscessescosssssccsssseres q

I{I. This Case Presents No Issues of National!

Importance Warranting This Court’s Review. ....... 13

SF ee PRN EOE alison asrenssavednvicvocssavintsineiveerktareadinacieninsaey) 15

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TABLE OF AUTHORITIES

Cases

44 Liquormart v. Rhode Island, 517 U.S.

a arate sipdaduncsxentcivnckeecansevesessencenees 5

Bates v. State Bar of Ariz., 433 U.S. 350

i dalcalnsstnsasacsransenececesscens 9,10, 15

Central Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n, 447 U.S. 557 (1980).......... 1,4, 8, 10

Committee on Profil Ethics v. Humphrey,

377 N.W.2d 643 (Iowa 1985) ...............ssscsccsseseeesees 1]

Edenfield v. Fane, 507 U.S. 761 (1993)... 1,5,13

Farrin v. Thigpen, 173 F. Supp. 2d 427

IE oi siciactedecvossnsessscvsesconscosessncnssscnsossee 6

Fla. Bar v. Pape, 918 So. 2d 240 (Fla. 20085) ........ ee. 7

Fla. Bar v. Went For It, Inc., 515 U.S. 618

rca dicsscananeatverttasecsscocsconsecssseses 15

Goldfarb v. Va. State Bar, 421 U.S. 773

Neila scanevavessnasesroacccccccsccscccenccees 15

Greater New Orleans Broad. Ass'n, Inc. v.

United States, 527 U.S. 178 (1999).................202 12

Ibanez v. Fla. Dep't of Bus. & Prof'l Reg.,

onc sssseuscccenssccccessecosseccsescncsee 10

In re Keller, 792 N.E.2d 865 (Ind. 2008) ...................008 6, 7

See Pk Bd 20d CARIZ. 1987) .......000sceccresessosecseerens i

Mandel v. Bradley, 432 U.S. 173 (1977) ...............0000+ ee

-jV-

Peel v. Attorney Registration &

Disciplinary Comm’n, 496 U.S. 91

area an sneu sa dibnisesoensensenonisasesconeses 11

Public Citizen, Inc. v. La. Attorney

Disciplinary Bd., 642 F. Supp. 2d

TE MN ar cincciuveyrescusernrassssasessasvevesesseeere 14

Shapero v. Ky. Bar Ass’n, 486 U.S. 466

Tease lral cave svaasopssuvelesusevsitesonvesssveeeaese 10

Thompson v. W. States Med. Ctr., 535 U.S.

a rinr ns scslcssscensedssaedatedssneotencetnsecsoseosoeess 4

United States v. Edge Broad. Co., 509 U.S.

err tendssdesaseapeaisusapecssvobsusvonerverses 12

Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council, 425 U.S. 748

sca cccnneknancanseendsvecvssonesacease 13

Zauderer v. Office of Disciplinary Counsel

of Supreme Court of Ohio, 471 U.S.

NE al ciedieeessasbssesivetsaversdesesseveresvessese 11, 12, 15

Rules

Trials Jiccsdssacssesvansviscsonsssoisiscesacveesonneve 2, 8

Ark. Rules of Prof] Conduct R. 7.2(@)...........c:cccssccsereeeees 14

Cal. Rules of Prof] Conduct R. 1-400 ...............ceeeseeeees 14

La. Rules of Prof’! Conduct R. 7.2(c)(1)(1) 2... cece 14

Mo. Rules of Prof] Conduct R. 4-7.1(i)......cceeeeeeseeneeeee 14

N.C. Rules of Prof] Conduct R. 7.1(b) ..........cccceeceseeeeeees 14

Or. Rules of Prof] Conduct R. 7.1(a)(10) .0.00....cccceeeeeee eee 14

V

Pa. Rules of Prof] Conduct R. 7.20f)........cccccccccccccssccscceccs 14

R.I. Rules of Prof] Conduct R. 7.1(¢)..........0..00.00... dene act 14

S.D. Rules of Prof] Conduct R. 7.1(¢e)(15)........ ee. 14

Wyo. Rules of Prof] Conduct R. 7.2(h) ........... ee ceeeee sees 14

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INTRODUCTION

This case presents the fact-bound question of

whether the state of New York satisfied the heavy evi-

dentiary burden required to justify its broad categorical

restrictions on commercial speech. This Court estab-

lished the relevant test for addressing that question in

its 1980 decision in Central Hudson Gas & Electric Corp.

v. Public Service Commission, 447 U.S. 557 (1980), and

has reaffirmed it in numerous subsequent cases. Under

the Central Hudson test, the state must demonstrate—

with actual evidence—“that the harms it recites are real

and that its restriction will in fact alleviate them to a ma-

terial degree.” Hdenfield v. Fane, 507 U.S. 761, 770-71

(1993). In this case, the record evidence in support of the

state’s speech restrictions, in the words of the district

court, was “notably lacking.” Pet. App. lla. Based on

that lack of evidence, the decision below holding the re-

strictions unconstitutional presents a straightforward

application of precedent and implicates no split in au-

thority or other issues worthy of this Court’s review.

Attempting an end-run around this well-established

precedent, the state asks this Court to revolutionize its

commercial-speech doctrine by holding that it need not

satisfy any burden when it restricts speech that it deems

to be “unverifiable” or when it concludes that the speech

does not “assist the public in the intelligent selection of

counsel.” Pet. i. There is no basis in this Court’s deci-

sions, however, for the state’s proposed rule, and the

cases that the state asserts create a split of authority on

the issue involved determinations only that the standard

had been satisfied under the particular facts at issue in

those cases. The state’s rule, if adopted by this Court,

would eviscerate the Central Hudson test while provid-

ing no alternative standard under which courts could re-

view commercial-speech restrictions. The rule would not

only create an arbitrary and unworkable system, it

2

would give states the power to prohibit commercial

speech at will, without the burden of articulating, much

less proving, an interest in doing so. That result would

give states untrammeled authority to infringe First

Amendment rights without meaningful judicial review—

a result that this Court has repeatedly rejected.

The decision below correctly identified the applicable

standard of review and applied it to the particular facts

of the case. The state’s disagreement with that outcome

does not provide grounds for review by this Court. See S.

Ct. R. 10. The Court should therefore deny the petition.

STATEMENT

In November 2006, the Appellate Division of the

New York Supreme Court adopted sweeping amend-

ments to the New York Code of Professional Responsi-

bility. The state announced that the amendments were

intended to protect consumers against “potentially mis-

leading” advertisements. Pet. App. 5a-6a. However, the

amendments actually restricted a wide variety of stock

advertising devices—including attention-getting tech-

niques, mottos, testimonials, and depictions of judges—

that pose no realistic threat of misleading or otherwise

harming consumers.

Although the amendments came on the heels of a re-

port of a New York State Bar Association task force on

lawyer advertising, there is no indication in the proposed

amendments that they were influenced by the task-force

report. To the contrary, as both the district court and the

Second Circuit recognized, the amendments directly con-

tradicted the task force’s recommendations on nearly

every front. See Pet. App. lla-12a, 27a-28a. Where the

task force rejected new content-based restrictions on ad-

vertising in favor of additional disclaimers, educational

efforts, and tougher enforcement of existing rules, the

amendments imposed detailed new regulations that were

-3.

among the most prohibitive in the country and restricted

widespread advertising techniques that consumers see in

the media every day. Indeed, the amendments were so

restrictive that, had they had been evenly applied to

other industries, they would have prohibited virtually

every commercial advertisement currently running in

most forms of media.’

As a result of the amendments, respondent James L.

Alexander and his firm Alexander & Catalano found that

almost all of the firm’s advertisements—which they had

run for years without complaint from state disciplinary

authorities—were suddenly prohibited in New York. Pet.

App. 3a-4a. These advertisements included television

commercials featuring dramatizations, comical scenes,

and special effects, which, for example, depicted Alexan

der and his partner as giants towering above local build-

ings, running to a client’s house so fast that they ap-

peared as blurs, jumping onto rooftops, and providing

legal assistance to space aliens. /d. at 4a. The firm’s ads,

although at times silly, were popular among the firm’s

clients and posed no risk of deception or other harm to

consumers. But because the ads undeniably contained

attention-getting techniques, the firm was forced to pull

them off the air and face the prohibitive cost of develop-

ing from scratch an entirely new advertising campaign.

Pet. App. 4a. The firm was also forced to abandon its

long-running slogan—“The Heavy Hitters”—in which it

' Only one amendment relevant to this case bore any resem

blance to the recommendations of the task force: a moratorium on

contact with victims and victims’ families in personal injury and

wrongful death cases. Based on the task force’s findings, the district

court and the Second Circuit upheld the moratorium rule, and re-

spondents do not challenge that determination in this Court.

-4-

had invested many years and dollars developing public

name recognition. /d.”

Alexander, Alexander & Catalano, and the nonprofit

group Public Citizen sued the state’s disciplinary au-

thorities in their official capacities, seeking a declaratory

judgment that the amended rules were unconstitutional

restrictions on commercial speech and an injunction

against the rules’ enforcement. Pet. App. 98a." On cross-

motions for summary judgment, the district court

granted judgment to the plaintiffs based on this Court’s

decision in Central Hudson. Pet. App. 88a. Under the

Central Hudson test, unless restricted speech is mis

leading or involves advertising for illegal goods or ser-

vices, the state must satisfy a three-part test by showing:

(1) that “the asserted governmental! interest is substan-

tial;” (2) that the regulation “directly advances the gov

ernmental interest asserted;” and (3) that the regulation

‘is not more extensive than is necessary to serve that

interest.” Thompson v. W. States Med. Ctr., 535 U.S.

357, 367 (2002) (quoting Central Hudson, 447 U.S. 557).

fmphasizing the “notabl[e]” lack of evidence that the

rules advanced any legitimate state interests or were

reasonably tailored toward those interests, the court

concluded that the state had failed to meet its burden of

justifying restrictions on commercial speech under the

second two prongs of the Central I1udson test. Pet. App.

lla-12a.

‘ The petition’s other examples of prohibited slogans (such a:

“the best in the business” and “always winners”) were never used by

Alexander & Catalano, or, to respondents’ knowledge, by other law

yers in New York.

* Public Citizen sued on behalf of its members in New York,

who were denied access to information about legal services as a re

sult of the rules. Pet. App. 92a

-

The Second Circuit affirmed. The court agreed with

the district court that the defendants had “failed to carry

their burden” under Central Hudson's second and third

prongs because the state had not shown that its rules

materially advanced any legitimate state interest or

were narrowly tailored toward the state’s claimed objec-

tives. Pet. App. 22a-34a. The court observed that the de

fendants had “introduced no evidence that the sorts of

irrelevant advertising components” prohibited by its

rules “are, in fact, misleading.” Pet. App. 27a. Instead,

the court concluded that the state appeared to have “con

flate|d] irrelevant components of advertising with mis

leading advertising,” though those concepts “are not one

and the same.” /d. The court stressed, however, that the

state’s “lack of sufficient evidence under ... Central

Hudson |did] not foreclose a similar reyulation being en

acted validly in the future.” Pet. App. 23a. It thus noted

that its decision “returns the matter to the applicable

legislating body” to “take a ‘second look’” at’ whether

there is a need for the rules. /d.

ARGUMENT

I. There Is No Split of Authority Among the Lower

Courts.

A. In Central Jludson, this Court held that a state

seeking to justify restraints on commercial speech that is

not false or misleading has the burden of demonstrating

that the restrictions were a response to evidence of a se-

rious and intractable problem, and that it adopted the

restrictions as “a last--—not first—resort.” Thompson,

535 U.S. at 378. This Court has stressed that the state’s

burden is a “heavy” one, 44 Liquormart v. Rhode Island,

517 U.S. 484, 516 (1996), that requires submitting actual

evidence, not just speculation and conjecture, that the

restrictions are necessary to further an important state

interest. See Hdenfield, 507 U.S. at 770-71.

£.

The state argues that the relevant commercial-

speech test remains unsettled, citing a variety of lower

court decisions that upheld state restrictions on particu-

lar advertisements. It is not surprising, however, that

states applying Central Hudson's fact-intensive test are

sometimes successful in satisfying their burden. Because

Central Hudson is an evidentiary test, the inquiry in

each case turns on the specific facts and evidence sub-

mitted by the state in that case. The cases on which the

state relies involved different rules and different evi-

dence, and whether the states in those cases satisfied

their burdens under Central Hudson says nothing about

whether the state satisfied its burden here.

For example, the state relies on Farrin v. Thigpen,

where the district court upheld the state’s restriction on

a particular advertisement that the court expressly

found to be deceptive. 173 F. Supp. 2d 427 (M.D.N.C.

2001). Although the advertisement included a “fictional

vignette,” the court did not base its decision on the

ground that dramatizations are unprotected by the First

Amendment. /d. at 442. Indeed, the court disclaimed that

interpretation of its holding, noting that “the use of

dramatization was not a factor” and that “[n]o one con-

tend[ed] that, through the dramatization, viewers will

mistake the actors for actual insurance adjusters.” /d.

Instead, after a trial that included evidence on the adver-

tisement’s deceptiveness, the court made a factual find-

ing that the advertisement was a materially deceptive

depiction of an insurance company’s settlement process

and was thus prohibited by the state’s ethics ruies

against false and misleading ads. /d. at 440.

* The Indiana Supreme Court’s decision in /z re Keller, also

cited by the state, involved the same advertisement at issue in Far-

rin. 792 N.E.2d 865 (Ind. 2008). Like Farrin, the court found the ad

(continued ...)

cd

-(~

Similarly, in Jr re Zang, 741 P.2d 267, 274 (Ariz.

1987), the Arizona Supreme Court upheld disciplinary

sanctions against lawyers who starred in “very dra-

matic” television commercials, but not because the com-

mercials were dramatic. Rather, the court concluded,

based on record evidence, that the lawyers in their com-

mercials portrayed themselves as skilled trial practitio-

ners, when in fact they had very little trial experience

and “serupulously avoided” taking cases to trial. /d. at

277. Although the court did generally caution lawyers

against overly dramatic advertisements, noting that such

advertisements “should be examined carefully to assure

that they are neither false nor misleading,” the court also

specifically stated that dramatic advertisements were

not prohibited by the state’s ethics rules. /d. at 279.

The decision that comes closest to adopting the rule

advanced by New York is Florida Bar v. Pape, in which

the Florida Supreme Court upheld disciplinary sanctions

against a firm for its use of the slogan “pit bull” and the

image of a pit-bull dog. 918 So. 2d 240 (Fla. 2005). Al-

though Pape included some broadly worded dicta re-

garding the irrelevance of the advertisements, the pre-

cise basis for the court’s holding was that the pit-bull im-

age suggested that the advertising lawyer would “get

results through combative and vicious tacties that will

maim, scar, or harm the opposing party.” /d. at 246. Re-

lying on evidence regarding the public’s perception of pit

bulls, the court concluded that the advertisement “sug-

gest{ed] behavior, conduct, or tactics that are contrary to

[the] Rules of Professional Conduct.” 7d. The court’s de-

cision was therefore based on its conclusion that the ad-

vertisements constituted a promise to violate the rules,

and thus fell outside the protection of the First Amend-

“more likely to deceive the public than inform it.” Jd. at 869

-8-

ment. See Central Hudson, 447 U.S. at 566 (holding that

advertisements that advertisements for illegal goods and

services are not protected by the First Amendment).

Regardless of the correctness of the state’s cases on

their facts, those cases do not conflict with the lower

court’s decision here, The court in this case recognized

Central Hudson as the proper standard, and its conclu-

sion that the state failed to satisfy that standard because

it submitted no evidence in support of its rules was a

straightforward application of that test. See 8S. Ct. Rule

10 (“A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law.”).

B. Although the petition suggests (at 3) that the

state sought to prohibit “deceptive and misleading ad-

vertising,” it has never presented any evidence that. any-

one could conceivably have been misled by the advertis-

ing devices it prohibited. The state produced no discipli-

nary records, studies, surveys, or empirical research of

any kind suggesting that its amended rules addressed

anything but non-existent problems. Nor has the state

ever Clearly articulated why it believes that stock adver-

tising devices—such as attention-getting techniques, ac-

tors portraying judges, testimonials, endorsements, and

mottos—are deceptive or otherwise harm consumers. As

the Second Circuit noted, “given the prevalence of these

and other kinds of special effects in advertising and en-

tertainment, we cannot seriously believe ... that ordinary

individuals are likely to be misled into thinking that

these advertisements depict true characteristics.” Pet.

App. 28a. Indeed, the Federal Trade Commission—the

agency charged with enforcing federal laws against un-

fair and deceptive trade practices—wrote to the state to

warn it that consumers would not be misled by the pro-

hibited advertising devices but that the rules could hurt

Q.

«

consumers by making it more difficult to find a lawyer

and by stifling competition in the legal marketplace. Pet.

App. 34a, 104a-105a.

The state (at 6-7, 30) relies on the state bar associa-

tion’s task-force report for the proposition that the

speech at issue here is misleading, but the task force it-

self did not conduct any empirical research or consider

any evidence on what sorts of advertising techniques are

likely to mislead the public. In any event, as both the dis-

trict court and Second Circuit recognized, the report

does not support the state’s position. /d. at 1la-12a, 27a-

28a. The report recommended revisions to the advertis-

ing rules that revolved around a central theme: The state

should not adopt new content-based restrictions on law-

yer advertising, but should instead require disclaimers

on potentially misleading ads, step up enforcement of

existing rules, increase efforts to educate lawyers about

the rules, and conduct outreach efforts to educate the

public about the legal system and the role of lawyers. See

id.; see also Bates v. State Bar of Ariz., 483 U.S. 350, 375

(1977) (“If the naiveté of the public will cause advertising

by attorneys to be misleading, then it is the bar’s role to

assure that the populace is sufficiently informed as to

enable it to place advertising in its proper perspective.”).

The state’s decision to adopt categorical restrictions on

lawyer advertising directly contradicted these recom-

mendations. Accordingly, the only evidence offered by

the state cuts against its position.

Il. The State’s Proposed Rule Flies in the Face of

Established Precedent And Would Give States

Virtually Untrammeled Authority to Restrict

Commercial Speech.

A. Recognizing that the lack of any evidence in sup-

port of its rules makes it impossible for it to satisfy its

burden under Central Hudson, the state advances the

ms

proposition that commercial speech falls completely out-

side the protection of the First Amendment—and there-

fore that neither Central Hudson nor any other standard

of review should apply—when the speech is either “un-

verifiable,” or “do[es] not assist the public in the intelli-

gent selection of counsel.” Pet. i. The state relies for this

proposition on Bates, 433 U.S. at 366. There, this Court

left open the question of what standard to apply to “ad-

vertising claims relating to the quality of legal services,”

which the Court noted “probably are not susceptible of

precise measurement or verification.” /d.

After Bates, however, this Court stated in Central

Hudson the now well-established standard to apply in

commercial-speech cases, holding that a state must sat-

isfy the standard’s three-part test as long as the speech

“concern[s] lawful activity” and is not “misleading.” Cer-

tral Hudson, 447 U.S. at 566. Since then, the Court has

not recognized exceptions to Central Hudson, and has

repeatedly reaffirmed that “[cJommercial speech that is

not false, deceptive, or misleading can be restricted ...

only if the State shows that the restriction directly and

materially advances a substantial state interest in a

manner no more extensive than necessary to serve that

interest.” Jbanez v. Fila. Dep't of Bus. & Profil Reg., 512

U.S. 186, 142 (1994). And the Court has applied that

standard even to speech that could be described as “un-

verifiable” or “irrelevant.” For example, in Shapero v.

Kentucky Bar Association, the Court rejected the

state’s argument that a mailed solicitation could be pro-

hibited because it included statements—such as “It may

surprise you what I may be able to do for you”—that

“statled] no affirmative or objective fact,” constituted

“pure salesman puffery,” and were an “enticement for

the unsophisticated, which commit[ted] [the lawyer] to

nothing.” 486 U.S. 466, 478 (1988) (internal quotation

marks omitted). Recognizing that consumers are not so

ot te

easily misled by stock advertising techniques, the Court

has also refused to credit “the paternalistic assumption”

that consumers of legal services “are no more discrimi-

nating than the audience for children’s television.” Peel

v. Attorney Registration & Disciplinary Comm’n, 496

U.S. 91, 105 (1990).

B. In the face of decades of well-established prece-

dent on the proper standard in commercial-speech cases,

the state relies on this Court’s summary dismissal for

lack of a substantial federal question in Commzttee on

Professional Ethics v. Humphrey, 377 N.W.2d 6438 (lowa

1985), sunimarily dismissed by 475 U.S. 1114 (1986).

The state asserts that Humphrey adopted the position it

advocates here, and that the summary dismissal indi-

cates this Court’s approval of that position. The language

of the Iowa Supreme Court on which the state relies,

however, does not come from the decision that was

summarily dismissed, but from an earlier iteration of the

same case that this Court summarily vacated in light of

its decision in Zauderer v. Office of Disciplinary Counsel

of Supreme Court of Ohvo, 471 U.S. 626 (1985). See 355

N.W.2d 565, vacated and remanded by 472 U.S. 1004

(1985). This Court cannot be said to have adopted the

reasoning of a decision it vacated.

To be sure, the Iowa Supreme Court reaffirmed its

decision on remand, and this Court summarily dismissed

the appeal of that decision. But the Iowa Supreme

Court’s second opinion was based on different reasoning,

distinguishing Zauderer on the ground that it involved

print, rather than television advertising, and concluding

that this Court’s commercial-speech decisions did not

apply to broadcast media. In contrast, the speech restric-

tions at issue here apply to all forms of media, and the

state does not argue that a different rule should apply to

ads that appear on television. Moreover, since the sum-

mary reversal in Humphrey, this Court has applied Cen-

-12-

tral Hudson to television advertisements. See Greater

New Orleans Broad. Ass’n, Inc. v. United States, 527

U.S. 173 (1999); United States v. Edge Broad. Co., 509

U.S. 418 (19938).

In any event, this Court’s summary dismissal cannot

be read to suggest adoption of the broad rule that the

state advances here. This Court has stressed that a

summary reversal “is not to be read as a renunciation ...

of doctrines previously announced in [] opinions after full

argument,” and should not be “understood as breaking

new ground but as applying principles established by

prior decisions to the particular facts involved.” Mandel

v. Bradley, 482 U.S. 173, 176 (1977) (internal quotation

marks omitted). In Humphrey, a key factor justifying

the decision was the court’s conclusion, based on record

evidence developed at an evidentiary hearing, that the

advertisements misrepresented the experience of the

advertising lawyers, who had tried only a few cases. 355

N.W.2d at 567, 570. The court also expressed concern

that, while advertising their availability on a contingency

fee basis, the lawyers were “conspicuously silent” about

the client’s responsibility for cosis—an omission for

which this Court in Zauderer had just held the First

Amendment did not prevent state disciplinary action. 471

USS. 626.

Especially given this Court’s adoption of the Central

Hudson test just five years earlier, it is unlikely that the

Court would have chosen a summary disposition as a ve-

hicle to announce a major modification to the test. And

after more than twenty years of subsequent decisions on

the commercial-speech doctrine, which have gradually

elaborated on the state’s burden under Central Hudson

but have never mentioned Humphrey, it is implausible

that the Court’s summary dismissal requires application

of a different rule.

-13-

C. In addition to lacking any support in case law, the

state’s proposed rule would be unworkable in practice

and would effectively eviscerate Central Hudson. As this

Court has recognized, “no line between publicly ‘interest-

ing’ or ‘important’ commercial advertising and the oppo-

site kind could ever be drawn.” Va. State Bd. of Phar-

macy v. Va. Citizens Consumer Council, 425 U.S. 748,

765 (1976). Even if a state considers certain information

to be “of slight worth,” the First Amendment dictates

that it is for “the speaker and the audience, not the gov-

ernment; [to]“assess the value of the information pre-

sented.” Edenfield, 507 U.S. at 767. By removing certain

categories of non-misleading speech from the scope of

the commercial-speech doctrine that the state deems to

be “irrelevant” or “unverifiable,” the state would grant

itself authority to impose restrictions on speech without

the need to prove or even articulate an interest in doing

so, and without showing that the restrictions are either

necessary or effective to advance any legitimate purpose.

Such a test would turn Central Hudson on its head, re-

placing the state’s heavy burden of proof with effectively

unreviewable authority to prohibit broad categories of

commercial speech based on justifications with no basis

in fact. This Court should decline the state’s suggestion

that it consider such an unworkable and dangerous test.

III. This Case Presents No Issues of National Impor-

tance Warranting This Court’s Review.

The state suggests that review in this case is war-

ranted because the decision below jeopardizes rules of

other states that have adopted similar restrictions. The

New York rules declared unconstitutional here, however,

are nearly unique in the nation—-only one other state has

adopted any of them, and that state’s rules are subject to

-]4-

a pending constitutional challenge.’ To be sure, other

states have rules regarding advertising techniques that

could be characterized as “unverifiable” or “non-

informational” under the state’s proposed test, but al-

most all those rules restrict such ads only when they are

false or misleading. Aside from New York, only Arkan-

sas and Wyoming impose total bans on dramatizations,

and those rules, as far as respondents are aware, have

never been challenged in court.°

A few states also have rules requiring advertise-

ments similar to Alexander & Catalano’s to include dis-

closures or disclaimers. Eight states, for example, re-

quire dramatizations to be accompanied by a disclosure

that the scenes do not depict actual events.’ As the Sec-

ond Circuit recognized, however, disclosure require-

ments are subject to a different analysis under the First

Amendment because they are generally designed to fa-

cilitate, rather than restrict, the communication of in-

formation to consumers. Pet. App. 33a. Indeed, central to

the decisions of both the district court and the Second

° Louisiana adopted New York’s rules against the use of trade

names and depiction of judges after the New York rules had been

declared unconstitutional. The constitutionality of Louisiana’s rules

is currently under review by the U.S. Court of Appeals for the Fifth

Circuit. Public Citizen, Inc. v. La. Attorney Disciplinary Bd , 642 F.

Supp. 2d 539 (E.D. La. 2009), appeal argued, No. 09-30925 (5th Cir.

Oct. 5, 2010).

® See Ark. Rules of Prof] Conduct R. 7.2(e); Wyo. Rules of

Prof] Conduct R. 7.2(h).

" See Cal. Rules of Prof] Conduct R. 1-400, standard 13; La.

Rules of Prof] Conduct R. 7.2(e)(1)(I); Mo. Rules of Profl Conduct

R. 4-7.1(i); N.C. Rules of Prof] Conduct R. 7.1(b); Or. Rules of Prof'l

Conduct R. 7.1(a)(10); Pa. Rules of Profl Conduct R. 7.2(f); R.1.

Rules of Profl Conduct R. 7.1(¢c); S.D. Rules of Prof] Conduct R.

7.1(¢e)(15).

-15-

Circuit was their conclusion that the state could have

achieved its goals using less restrictive methods, such as

requiring a disclosure, instead of imposing an outright

ban. Jd.

The state also argues that the decision below

“threaten[s] to disrupt the efforts of the States in per-

forming their traditional role of regulating the profes-

sional conduct of attorneys who are licensed within their

borders.” Pet. 29-30 (citing Goldfarb v. Va. State Bar,

421 U.S. 773, 792 (1975)). To say that states have an in-

terest in regulating a profession, however, only begs the

question whether the state has an interest in regulating

a profession in the ways it has chosen to regulate here.

This Court has repeatedly applied the Central Hudson

test to restrictions on lawyer advertising, and has held

that “[pJrophylactic restraints that would be unaccept-

able as applied to commercial advertising generally are

equally unacceptable as applied to ... advertising” by

lawyers. Zauderer, 471 U.S. at 646-47; see Fila. Bar v.

Went For It, Inc., 515 U.S. 618, 623 (1995) (“It is now

well established that lawyer advertising is commercial

speech and, as such, is accorded a measure of First

Amendment protection.”). Although states have a strong

interest in regulating lawyers and other professionals to

prevent fraud and protect the public’s health and safety,

this Court recognized two years after Goldfarb that a

state does not have an interest in restricting commercial

speech based on its assumption that “the public is not

sophisticated enough to realize the limitations of adver-

tising.” Bates, 433 U.S. at 375.

CONCLUSION

The petition for certiorari should be denied.

16-

Respectfully submitted,

GREGORY A. BECK

COUNSEL OF RECORD

Allison M. Zieve

Public Citizen Litigation Group

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

BRIAN WOLFMAN

600 New Jersey Avenue NW

Washington, DC 20001

(202) 661-6582

Counsel for Respondents

November 2010