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Advertising by lawyers is a form of commercial speech entitled to protection by U.S. Const. amend I. Truthful advertising related to lawful activities is entitled to the protections of U.S. Const. amend. I. However, when particular contents or methods of advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, states may impose appropriate restrictions. Misleading advertising may be prohibited entirely. However, states may not place an absolute prohibition on certain types of potentially misleading information, such as a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Even when a communication is not misleading, a state retains some authority to regulate. A state must assert a substantial interest and the interference with speech must be in proportion to the interest served.
Petitioner attorney challenged a state supreme court decision publicly censuring him because his letterhead stated that he was certified as a civil trial specialist by the National Board of Trial Advocacy (NBTA). The state supreme court held that U.S. Const. amend. I did not protect petitioner's letterhead because it was inherently misleading in multiple ways.
Was it proper to publicly censure the petitioner attorney for advertising his NBTA certification on his letterhead?
The U.S. Supreme Court reversed the decision of the state supreme court and held that the statement on the letterhead was protected speech under U.S. Const. amend. I. Based on the standards applicable to commercial speech, petitioner had a constitutional right to advertise his NBTA certification on his letterhead. Petitioner's statement was not misleading, and the potentially misleading character of the statement did not create a state interest sufficient to justify a categorical ban on its use. The facts stated on petitioner's letterhead were true and verifiable and were not misleading or deceptive on their face but instead served the public interest.