Advertising that is false, deceptive, or misleading is subject to restraint. Since the advertiser knows his product and has a commercial interest in its dissemination, regulation to assure truthfulness will discourage protected speech. And any concern that strict requirements for truth-fulness will undesirably inhibit spontaneity seems inapplicable because commercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.
Appellants John R. Bates and Van O'Steen were attorneys licensed to practice law in the State of Arizona and members of the Arizona State Bar. They were charged in a complaint filed by the State Bar's president with violating the state supreme court's disciplinary rule, which prohibited attorneys from advertising in newspapers or other media. The complaint was based upon a newspaper advertisement placed by appellants for their "legal clinic," stating that they were offering "legal services at very reasonable fees," and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition and that it infringed appellants' First Amendment rights.
Did the rule imposed by the Arizona State Bar violate the appellants' First Amendment rights?
The Supreme Court of the United States held that advertising by attorneys could not be subjected to blanket suppression. In addition, the Court determined that appellants' advertising was truthful and was protected by U.S. Const. amend. I. The state supreme courts' rulings on those issues were reversed. Nevertheless, the Court affirmed the lower court's finding that the regulation was shielded from Sherman Act attack because the rule was an activity of the state acting as sovereign.