496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990)
Gary E. Peel practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. Peel has served as president of the Madison County Bar Association and has been active in both national and state bar association work. He has tried to verdict over 100 jury trials and over 300 nonjury trials.1
NBTA issued Peel a Certificate in Civil Trial Advocacy in 1981, renewed it in 1986, and listed him in its 1985 Directory of Certified Specialists and Board Members.2 Since 1983 petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed, appearing as Gary E. Peel, Certified Civil Trial Specialist By the National Board of Trial Advocacy, Licensed: Illinois, Missouri, Arizona.3
In 1987 the Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint alleging that Peel, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility.4 The complaint also alleged violations of Rule 2-101(b) and Rule 1-102(a)(1).5
After a hearing the Commission recommended censure for a violation of Rule 2-105(a)(3).6 The Illinois Supreme Court adopted the Commission's recommendation for censure in 1989.7 The United States Supreme Court granted certiorari, with argument held on January 17, 1990.8
Whether the statement on petitioner's letterhead referring to his certification as a civil trial specialist by the National Board of Trial Advocacy is protected by the First Amendment?9
Truthful advertising related to lawful activities is entitled to the protections of the First Amendment.10 But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions.11 Misleading advertising may be prohibited entirely.12 But the States may not place an absolute prohibition on 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.13 Even when a communication is not misleading, the State retains some authority to regulate.14 But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served.15
Yes. The statement on petitioner's letterhead is neither actually nor inherently misleading.16 The facts stated on the letterhead are true and verifiable. No actual deception or misunderstanding was found.17
Certification by NBTA rests on objective standards of experience and examination rather than an opinion of quality.18 The references to certification and licensure are clearly distinguished on the letterhead and do not imply state sanction for the certification.19 Although the statement may be potentially misleading to some, the state's categorical prohibition is broader than reasonably necessary to prevent deception.20 Narrower measures, such as requiring a disclaimer, would suffice to protect consumers while allowing the dissemination of truthful information.21
The statement on petitioner's letterhead is protected by the First Amendment because it is neither actually nor inherently misleading, and Illinois' blanket prohibition violates the First Amendment.22
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall concurs in the judgment that the letterhead is neither actually nor inherently misleading and therefore may not be prohibited outright.23 He emphasizes that a letterhead statement does not raise the same concerns as in-person solicitation because the recipient can reflect on the information.24 However, Marshall finds the statement potentially misleading because the name National Board of Trial Advocacy could suggest governmental affiliation and the juxtaposition with state licenses could imply state sanction.25
He would permit states to require disclaimers or additional information about the certifying organization's requirements rather than impose a total ban.26
Justice White agrees with Marshall that the letterhead is potentially misleading and would permit the state to ban it unless accompanied by appropriate disclaimers.27 Because five justices conclude the letterhead is at least potentially misleading, White would affirm the judgment below and allow Illinois to apply its rule to the letterhead in its present form.28 He rejects application of overbreadth doctrine to commercial speech.29
He concludes that Peel should have to add a disclaimer before circulating the letterhead.30
Joined by Chief Justice Rehnquist And Justice Scalia
Justice O'Connor dissents and would affirm the Illinois Supreme Court decision.31 She argues that claims of certification are inherently likely to deceive because they are tantamount to claims of quality and superiority that ordinary consumers cannot readily verify.32 O'Connor urges greater deference to the state supreme court's assessment of misleading potential and contends that states should have broad latitude to prohibit such claims outright without case-by-case review or mandatory disclaimers.33
She also rejects the equal protection challenge to the rule's exceptions for patent, trademark, and admiralty specialties.34