Because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception. An advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.
Appellant, Philip Q. Zauderer, was an Ohio attorney who ran an advertisement offering to represent defendants in drunk-driving cases and refund their fees if they were convicted of that offense. He also ran an advertisement wherein he advised previous users of a defective birth control device not to assume that it was too late to sue for their injuries, and offered to represent them on a contingent fee basis. The advertisement contained a drawing of a defective birth control device. Subsequently, the state's Office of Disciplinary Counsel filed a complaint alleging that the first advertisement was deceptive in offering criminal representation on what amounted to a contingent fee basis, which was prohibited by attorney disciplinary rules, and that the second advertisement violated disciplinary rules regarding attorney advertising which prohibited self-recommendation, accepting employment resulting from unsolicited legal advice, and the use of illustrations, and was deceptive in failing to disclose a losing client's liability for cost. The Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio found these charges to be valid, except that it found the first advertisement to be deceptive in that it failed to mention the likelihood of plea bargaining, and recommended that the attorney be suspended indefinitely. The Supreme Court of Ohio adopted the Board's findings but reduced the penalty to a public reprimand. Contending that Ohio's Disciplinary Rules violated the First Amendment insofar as they authorize the State to discipline him for the content of his second advertisement, Zauderer filed an appeal.
Was the reprimand violative of Zauderer’s First Amendment rights?
Yes, as regards Zauderer’s second advertisement. No, as regards his first advertisement.
The Court held that the reprimand is sustainable to the extent that it is based on Zauderer’s advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his defective birth control device advertisement. But insofar as the reprimand is based on Zauderer's use of an illustration in his advertisement and his offer of legal advice, the reprimand violated his First Amendment rights. The Court ruled that under the First Amendment, an attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and non-deceptive information and legal advice or accurate and non-deceptive illustrations.