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FRED H. EDENFIELD v. SCOTT FANE

decided: April 26, 1993.

FRED H. EDENFIELD, ET AL., PETITIONERS
v.
SCOTT FANE



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, Souter, and Thomas, JJ., joined. Blackmun, J., filed a concurring opinion. O'connor, J., filed a dissenting opinion.

Author: Kennedy

JUSTICE KENNEDY delivered the opinion of the Court.

In previous cases we have considered the constitutionality of state laws prohibiting lawyers from engaging in direct, personal solicitation of prospective clients. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978); In re Primus, 436 U.S. 412, 56 L. Ed. 2d 417, 98 S. Ct. 1893 (1978). In the case now before us, we consider a solicitation ban applicable to Certified Public Accountants (CPAs) enacted by the State of Florida. We hold that, as applied to CPA solicitation in the business context, Florida's prohibition is inconsistent with the free speech guarantees of the First and Fourteenth Amendments.

I

Respondent Scott Fane is a CPA licensed to practice in the State of Florida by the Florida Board of Accountancy. Before moving to Florida in 1985, Fane had his own accounting CPA practice in New Jersey, specializing in providing tax advice to small and medium-sized businesses. He often obtained business clients by making unsolicited telephone calls to their executives and arranging meetings to explain his services and expertise. This direct, personal, uninvited solicitation was permitted under New Jersey law.

When he moved to Florida, Fane wished to build a practice similar to his solo practice in New Jersey but was unable to do so because the Board of Accountancy had a comprehensive rule prohibiting CPAs from engaging in the direct, personal solicitation he had found most effective in the past. The Board's rules provide that a CPA "shall not by any direct, in-person, uninvited solicitation solicit an engagement to perform public accounting services . . . where the engagement would be for a person or entity not already a client of [the CPA], unless such person or entity has invited such a communication." Fla. Admin. Code § 21A-24.002(2)(c) (1992). "Direct, in-person, uninvited solicitation" means "any communication which directly or implicitly requests an immediate oral response from the recipient," which, under the Board's rules, includes all "uninvited in-person visits or conversations or telephone calls to a specific potential client." § 21A-24.002(3).

The rule, according to Fane's uncontradicted submissions, presented a serious obstacle, because most businesses are willing to rely for advice on the accountants or CPAs already serving them. In Fane's experience, persuading a business to sever its existing accounting relations or alter them to include a new CPA on particular assignments requires the new CPA to contact the business and explain the advantages of a change. This entails a detailed discussion of the client's needs and the CPA's expertise, services and fees. See Affidavit of Scott Fane P P 7, 11 (App. 11, 15).

Fane sued the Board in the United States District Court for the Northern District of Florida, seeking declaratory and injunctive relief on the ground that the Board's anti-solicitation rule violated the First and Fourteenth Amendments. Fane alleged that but for the prohibition he would seek clients through personal solicitation and would offer fees below prevailing rates. Complaint P P 9-11 (App. 3-4).

In response to Fane's submissions, the Board relied on the affidavit of Louis Dooner, one of its former Chairmen. Dooner concluded that the solicitation ban was necessary to preserve the independence of CPAs performing the attest function, which involves the rendering of opinions on a firm's financial statements. His premise was that a CPA who solicits clients "is obviously in need of business and may be willing to bend the rules." Affidavit of Louis Dooner, App. 23. In Dooner's view, "if [a CPA] has solicited the client he will be beholden to him." Id., at 19. Dooner also suggested that the ban was needed to prevent "overreaching and vexatious conduct by the CPA." Id., at 23.

The District Court gave summary judgment to Fane and enjoined enforcement of the rule "as it is applied to CPAs who seek clients through in-person, direct, uninvited solicitation in the business context." Civ. Case No. 88-40264-MNP (ND Fla., Sept. 13, 1990) (App. 88). A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. 945 F.2d 1514 (1991).

We granted certiorari, 504 U.S. (1992), and now affirm.

II

In soliciting potential clients, Fane seeks to communicate no more than truthful, non-deceptive information proposing a lawful commercial transaction. We need not parse Fane's proposed communications to see if some parts are entitled to greater protection than the solicitation itself. This case comes to us testing the solicitation, nothing more. That is what the State prohibits and Fane proposes.

Whatever ambiguities may exist at the margins of the category of commercial speech, see, e. g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 384-388, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973), it is clear that this type of personal solicitation is commercial expression to which the protections of the First Amendment apply. E. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). While we did uphold a ban on in-person solicitation by lawyers in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978), that opinion does not hold that all personal solicitation is without First Amendment protection. See id., at 457. There are, no doubt, detrimental aspects to personal commercial solicitation in certain circumstances, see id., at 464, and n. 23, but these detriments are not so inherent or ubiquitous that solicitation of this sort is removed from the ambit of First Amendment protection. Cf. United States v. Kokinda, 497 U.S. 720, 725, 111 L. Ed. 2d 571, 110 S. Ct. 3115 (1990) (plurality opinion) ("Solicitation is a recognized form of speech protected by the First Amendment"); see also International Society for Krishna Consciousness v. Lee, 505 U.S. , (1992).

In the commercial context, solicitation may have considerable value. Unlike many other forms of commercial expression, solicitation allows direct and spontaneous communication between buyer and seller. A seller has a strong financial incentive to educate the market and stimulate demand for his product or service, so solicitation produces more personal interchange between buyer and seller than would occur if only buyers were permitted to initiate contact. Personal interchange enables a potential buyer to meet and evaluate the person offering the product or service, and allows both parties to discuss and negotiate the desired form for the transaction or professional relation. Solicitation also enables the seller to direct his proposals toward those consumers whom he has a reason to believe would be most interested in what he has to sell. For the buyer, it provides an opportunity to explore in detail the way in which a particular product or service compares to its alternatives in the market. In particular, with respect to nonstandard products like the professional services offered by CPAs, these benefits are significant.

In denying CPAs and their clients these advantages, Florida's law threatens societal interests in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard. See Virginia State Bd. of Pharmacy, supra, at 762-765; Bates v. State Bar of Arizona, 433 U.S. 350, 377-378, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 561-562, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment. See Virginia State Bd. of Pharmacy, supra, at 762.

Commercial speech, however, is "linked inextricably" with the commercial arrangement that it proposes, Friedman v. Rogers, 440 U.S. 1, 10, 59 L. Ed. 2d 100, 99 S. Ct. 887 , n. 9 (1979), so the State's interest in regulating the underlying transaction may give it a concomitant interest in the expression itself. See Ohralik, 436 U.S. at 457 . For this reason, laws restricting commercial speech, unlike laws burdening other forms of protected expression, need only be tailored in a reasonable manner to serve a substantial state interest in order to survive First Amendment scrutiny. Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 480, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989); Central Hudson Gas & Electric Corp., 477 U.S. at 564. ...


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