SUPREME COURT OF THE UNITED STATES -------- No. 91-1594 -------- FRED H. EDENFIELD, ET AL., PETITIONERS v. SCOTT FANE ___ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [April 26, 1993] JUSTICE O'CONNOR, dissenting. I continue to believe that this Court took a wrong turn with Bates v. State _____ _____ Bar of Arizona, 433 U. S. 350 (1977), and that it has compounded this error by ______________ finding increasingly unprofessional forms of attorney advertising to be protected speech. See Zauderer v. Office of Disciplinary Counsel of Supreme ________ _________________________________________ Court of Ohio, 471 U. S. 626 (1985); Shapero v. Kentucky Bar Assn., 486 U. S. _____________ _______ __________________ 466 (1988); Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 ____ _____________________________________________________ U. S. 91 (1990) (plurality opinion). These cases consistently focus on whether the challenged advertisement directly harms the listener: whether it is false or misleading, or amounts to "overreaching, invasion of privacy, [or] the exercise of undue influence," Shapero, supra, at 475. This focus is too narrow. In my _______ _____ view, the States have the broader authority to prohibit commercial speech that, albeit not directly harmful to the listener, is inconsistent with the speaker's membership in a learned profession and therefore damaging to the profession and society at large. See Zauderer, supra, at 676-677 (O'CONNOR, J., concurring in ________ _____ part, concurring in judgment in part, and dissenting in part); Shapero, supra, _______ _____ at 488-491 (O'CONNOR, J., dissenting); Peel, supra, at 119 (O'CONNOR, J., ____ _____ dissenting). In particular, the States may prohibit certain "forms of competition usual in the busi- 91-1594 - DISSENT 2 EDENFIELD v. FANE ____ ness world," Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975) (internal ________ __________________ quotation marks omitted), on the grounds that pure profit seeking degrades the public-spirited culture of the profession and that a particular profit-seeking practice is inadequately justified in terms of consumer welfare or other social benefits. Commercialization has an incremental, indirect, yet profound effect on professional culture, as lawyers know all too well. But even if I agreed that the States may target only professional speech that directly harms the listener, I still would dissent in this case. Ohralik v. _______ Ohio State Bar Assn., 436 U. S. 447 (1978), held that an attorney could be ____________________ sanctioned for the in-person solicitation of two particularly vulnerable potential clients, because of the inherent risk under such circumstances that the attorney's speech would be directly harmful, and because a simple prohibi- tion on fraud or overreaching would be difficult to enforce in the context of in-person solicitation. See id., at 464-468. The result reached by the ___ majority today cannot be squared with Ohralik. _______ Although Ohralik preceded Central Hudson Gas & Electric v. Public Service _______ _____________________________ ______________ Comm'n of New York, 447 U. S. 557 (1980), this Court has understood Ohralik to __________________ _______ mean that a rule prohibiting in-person solicitation by attorneys would satisfy the Central Hudson test. See Shapero, supra, at 472. Such a rule would ______________ _______ ______ "directly advanc[e] the governmental interest [and would not be] more extensive than is necessary to serve that interest." Central Hudson, supra, at 566. A ______________ _____ substantial fraction of in-person solicitations are inherently conducive to overreaching or otherwise harmful speech, and these potentially harmful solicitations cannot be singled out in advance (or so a reasonable legislator could believe). I see no constitutional difference between a rule prohibiting in-person solicitation by attorneys, and a rule prohibiting in-person solicitation by certified public accountants (CPA's). The attorney's rhetorical power derives not 91-1594 - DISSENT EDENFIELD v. FANE 3 ____ only from his specific training in the art of persuasion, see ante, at 13, but ____ more generally from his professional expertise. His certified status as an ______________________ expert in a complex subject matter - the law - empowers the attorney to overawe inexpert clients. CPA's have an analogous power. The drafters of Fla. Admin. Code S21A-24.002(2)(c) (1992) reasonably could have envisioned circumstances analogous to those in Ohralik, where there is a substantial risk that the CPA _______ will use his professional expertise to mislead or coerce a naive potential client. Indeed, the majority scrupulously declines to question the validity of Florida's rule. The majority never analyzes the rule itself under Central _______ Hudson, cf. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 ______ _________________________________ __________________________ U. S. 328, 340-344 (1986) (analyzing "facial" validity of law regulating com- mercial speech by employing Central Hudson test), but instead seeks to avoid ______________ this analysis by characterizing Fane's suit as an "as-applied" challenge. See ante, at 1, 5, 9, 12. I am surprised that the majority has taken this approach ____ without explaining or even articulating the underlying assumption: that a commercial speaker can claim First Amendment protection for particular instances of prohibited commercial speech, even where the prohibitory law satisfies Central Hudson. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 ______________ _________________________________________ ___ (1989), appears to say the opposite, see id., at 476-486, and we recently ___ granted certiorari in a case that poses precisely this issue, see United States _____________ v. Edge Broadcasting Co., 506 U. S. ___ (1992). _____________________ In any event, the instant case is not an "as-applied" challenge, in the sense ___ that a speaker points to special features of his own speech as constitutionally protected from a valid law. Cf. Zauderer, supra, at 644. The majority obscures ________ ______ this point by stating that Florida's rule "cannot be sustained as applied to Fane's proposed speech," ante, at 5, and by paraphrasing Fane's affidavit at ____ length to show that he does not propose to solicit 91-1594 - DISSENT 4 EDENFIELD v. FANE ____ vulnerable clients, ante, at 14. But I do not understand the relevance of that ____ affidavit here, because the broad remedy granted by the District Court goes well beyond Fane's own speech. "Florida Administrative Code, SS21A-24.002(2) and (3), places an unconstitutional ban on protected commercial speech in violation of the first . . . amendmen[t]. The Board of Accountancy and State are hereby enjoined from enforcing that regulation as it is applied to CPAs who seek clients through in-person, direct, uninvited solicitation in the business context." App. 88. Even if the majority is correct that a law satisfying Central Hudson cannot be ______________ applied to harmless commercial speech, and that Fane's proposed speech will indeed be harmless, these two premises do not justify an injunction against the enforcement of the antisolicitation rule to all CPA's. ____________ The majority also relies on the fact that petitioners were enjoined only from enforcing the rule in the "business context." See ante, at 1, 9. Yet this ____ narrowing of focus, without more, does not salvage the District Court's remedy. I fail to see why S21A-24.002(2)(c) should be valid overall, but not "in the business context." Small businesses comprise the vast majority of business establishments in the United States, see U. S. Dept. of Commerce, Statistical Abstract of the United States 526 (1992). The drafters of Florida's rule reasonably could have believed that the average small businessman is no more sophisticated than the average individual who is wealthy enough to hire a CPA for his personal affairs. In short, I do not see how the result reached by the majority is consistent with the validity of S21A-24.002(2)(c). In failing to state otherwise, the majority implies that the rule itself satisfies Central _______ 91-1594 - DISSENT EDENFIELD v. FANE 5 ____ Hudson, and I agree, but on that precise grounds I would reverse the judgment of ______ the Court of Appeals.