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WHITE, J., dissenting

JUSTICE WHITE, dissenting.

496 U. S.

I agree with JUSTICE MARSHALL that petitioner's letterhead is potentially misleading and with the reasons he gives for this conclusion. Thus, there are four Justices-JUSTICE STEVENS and the three Justices joining his opinion-who believe that the First Amendment protects the letterhead as it is and that the State may not forbid its circulation. But there are five Justices who believe that this particular letterhead is unprotected: JUSTICE O'CONNOR, THE CHIEF JUSTICE, and JUSTICE SCALIA believe the letterhead is inherently misleading and hence would uphold Rule 2–105(a)(3) of the Illinois Code of Professional Responsibility; at least two of us-JUSTICE MARSHALL and myself-find it potentially misleading and would permit the State to ban such letterheads but only if they are not accompanied by disclaimers appropriate to avoid the danger. This letterhead does not carry such a disclaimer. The upshot is that while the State may not apply its flat ban to any and all claims of certification by attorneys, particularly those carrying disclaimers, the State should be allowed to apply its Rule to the letterhead in its present form and forbid its circulation. That leads me to affirm, rather than to reverse, the judgment below.

To reverse is to leave petitioner free to circulate his letterhead, not because it is protected under the First Amendment - indeed, it is not-but because five Justices refuse to enforce the Rule even as applied, leaving the State powerless to act unless it drafts a narrower rule that will survive scrutiny under the First Amendment. This is nothing less than a

possibility that people would be misled. Cf. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 663-664 (1985) (BRENNAN, J., concurring in part, concurring in judgment in part, and dissenting in part) ("[C]ompelling the publication of detailed fee information that would fill far more space than the advertisement itself. . . would chill the publication of protected commercial speech and would be entirely out of proportion to the State's legitimate interest in preventing potential deception").

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brand of overbreadth, a doctrine that has little if any place in considering the validity of restrictions on commercial speech, which is what is involved in this case. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381 (1977). Bates "established the nonapplicability of overbreadth analysis to commercial speech." Board of Trustees of State University of N. Y. v. Fox, 492 U. S. 469, 483 (1989); accord, Shapero v. Kentucky Bar Assn., 486 U. S. 466, 478 (1988); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 463, n. 20 (1978). This being so, the inquiry is not whether the regulation at issue here is invalid on its face, but whether it was constitutionally applied to forbid circulation of the letterhead in its present form. It is plain enough that it was so applied, for five of us hold that the letterhead is at least potentially misleading and hence must carry an appropriate disclaimer to qualify for circulation. As I see it, it is petitioner who should have to clean up his advertisement so as to eliminate its potential to mislead. Until he does, the State's Rule legally bars him from circulating the letterhead in its present form.

I would therefore affirm the judgment.

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.

This case provides yet another example of the difficulties raised by rote application of the commercial speech doctrine in the context of state regulation of professional standards for attorneys. Nothing in our prior cases in this area mandates that we strike down the state regulation at issue here, which is designed to ensure a reliable and ethical profession. Failure to accord States considerable latitude in this area embroils this Court in the micromanagement of the State's inherent authority to police the ethical standards of the profession within its borders.

Petitioner argues for the first time before this Court that the statement on his letterhead that he is a certified trial specialist is not commercial speech. I agree with the plurality that we need not reach this issue in this case. Ante, at 99-100. We

O'CONNOR, J., dissenting

496 U. S.

generally do not "decide federal constitutional issues raised here for the first time on review of state court decisions." Cardinale v. Louisiana, 394 U. S. 437, 438 (1969).

We recently summarized our standards for commercial speech by attorneys in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985): "The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U. S. 1 (1979).... Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id., at 638.

In my view, application of this standard requires us to affirm the Illinois Supreme Court's decision that Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility is a valid measure to control misleading and deceptive speech. "The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the 'product' renders [attorney commercial speech] especially susceptible to abuses that the States have a legitimate interest in controlling." In re R. M. J., 455 U. S. 191, 202 (1982). Although certifying organizations, such as the National Board of Trial Advocacy (NBTA), may provide a valuable service to the legal profession and the public, I would permit the States broad latitude to ensure that consumers are not misled or deceived by claims of certification.

In In re R. M. J., supra, the Court stated that it “has made clear... that regulation-and imposition of discipline-are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive." Ibid. (emphasis added). The plurality in this case correctly notes that the statements in petitioner's letterhead have not been shown actually to deceive consumers, see ante,

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O'CONNOR, J., dissenting

at 100-101, but it fails adequately to address whether the statements are "inherently likely to deceive," as the Supreme Court of Illinois concluded. In re Peel, 126 Ill. 2d 397, 408, 534 N. E. 2d 980, 985 (1989). Charged with the duty of monitoring the legal profession within the State, the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead. Although we are the final arbiters on the issue whether a statement is misleading as a matter of constitutional law, we should be more deferential to the State's experience with such statements. Illinois does not stand alone in its conclusion that claims of certification are so misleading as to require a blanket ban. At least 19 States and the District of Columbia currently ban claims of certification. See Alaska Code Prof. Resp. DR 2-105 (1990); D. C. Ct. Rules, App. A., DR 2-105 (1989); Haw. Code Prof. Resp. DR 2-105 (1990); Ill. Code Prof. Resp. Rule 2-105 (1989); Ind. Rule Prof. Conduct 7.4 (1990); Iowa Code Prof. Resp. DR 2-105 (1989); Ky. Sup. Ct. Rule 7.4 (1990-1991); Md. Rule Prof. Conduct 7.4 (1990); Mass. Sup. Judicial Ct. Rule DR 2-105 (1990); Miss. Rule Prof. Conduct 7.4 (1989); Mo. Sup. Ct. Rule Prof. Conduct 7.4 (1990); Nev. Sup. Ct. Rule Prof. Conduct 198 (1990); Ore. Code Prof. Resp. DR 2-105 (1990); Pa. Rule Prof. Conduct 7.4 (1989); S. D. Rule Prof. Conduct 7.4 (1989); Tenn. Sup. Ct. Rule DR 2-105 (1988-1989); Va. Sup. Ct. Rules, pt. 6, §2, DR 2-104 (1989); Wash. Rule Prof. Conduct 7.4 (1990); W. Va. Rule Prof. Conduct 7.4 (1990); Wis. Sup. Ct. Rule Prof. Conduct 20:7.4 (1989).

Despite the veracity of petitioner's claim of certification by the NBTA, such a claim is inherently likely to deceive the public. The plurality states that "[a] claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, . . . but is simply a fact." Ante, at 101 (citation omitted). This view, however, conflates fact and verifiability. Merely because something is a fact does not make it readily verifiable. A statement, even if

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O'CONNOR, J., dissenting

496 U. S.

true, could be misleading. See also Bates v. State Bar of Arizona, 433 U. S. 350, 383 (1977) (attorney commercial speech "that is false, deceptive, or misleading of course is subject to restraint" (emphasis added)). The ordinary consumer with a "comparative lack of knowledge" about legal affairs should be able to assess the validity of claims and statements made in attorney advertising. Neither petitioner nor the plurality asserts that petitioner's claim of certification on its face is readily understandable to the average consumer of legal services.

The plurality verifies petitioner's statement on his letterhead by reference to the record assembled in this case, but that record is not readily available to members of the public. Given the confusion in the court below about the certification standard applied by the NBTA, see 126 Ill. 2d, at 406, 534 N. E. 2d, at 984, there can be little doubt that the meaning underlying a claim of NBTA certification is neither common knowledge nor readily verifiable by the ordinary consumer. And nothing in petitioner's letterhead reveals how one might attempt to verify the claim of certification by the NBTA. At least the claim of admission to the United States Supreme Court at issue in In re R. M. J., supra, which the Court stated "could be misleading," 455 U. S., at 205–206, named a readily recognizable institution or location to which inquiries could be addressed. Reference to the "NBTA" provides no such guidepost for inquiries. The State is, in my view, more than justified in banning claims of certification by the NBTA.

The plurality appears to have abandoned altogether any requirement that a statement or claim be verifiable by the ordinary consumer of legal services. Apparently, it would permit advertising claims of certification by any organization so long as the lawyer can "demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law." Ante, at 109. The plurality has thereby deserted the sole policy reason that justifies its headlong plunge into

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