GARY E. PEEL, PETITIONER V. ATTORNEY REGISTRATION AND DISCIPLINARY
COMMISSION OF ILLINOIS

   No. 88-1775

   In the Supreme Court of the United States

   October Term, 1989

   On Writ of Certiorari to the Supreme Court of Illinois

   Brief for the Federal Trade Commission as Amicus Curiae

            TABLE OF CONTENTS
   Interest of the Federal Trade Commission
   Statement
   Summary of argument
   Argument:
      I. Petitioner's statement on his business letterhead that
         he is a certified civil trial specialist constitutes
         commercial speech
     II. A ban on all truthful representations of professional
         specialization or certification is impermissible under
         the First Amendment
         A. Consumers benefit from the information conveyed by
            certification
         B. In light of the present record, the Illinois rule
            prohibiting any reference to specialization or
            certification violates the First Amendment
            1. Because the state has failed to demonstrate that a
               truthful statement of professional specialization or
               certification is inherently misleading, petitioner's
               letterhead claims are entitled to protection under the
               First Amendment
            2. A prophylactic ban on all truthful claims of
               professional specialization or certification is broader
               than reasonably necessary to advance any demonstrated
               state interest in this case
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether an attorney's statement on his business letterhead that
he is a "certified civil trial specialist by the National Board of
Trial Advocacy" constitutes commercial speech.

   2. Whether, if an attorney's truthful certification claim qualifies
as commercial speech, the state can, consistent with the First
Amendment, forbid it along with all other certification and
specialization claims.

               INTEREST OF THE FEDERAL TRADE COMMISSION

   The Federal Trade Commission (Commission) enforces Section 5(a) of
the Federal Trade Commission Act, which prohibits, inter alia, "unfair
or deceptive acts or practices in or affecting commerce," 15 U.S.C.
45(a), and other statutes that regulate unfair and deceptive practices
in specific industries.  /1/ Because many of these regulated practices
take the form of speech, and because commercial speech is
"traditionally subject to governmental regulation,'" Board of Trustees
of the State Univ. of N.Y. v. Fox, 109 S. Ct. 3028, 3035 (1989), the
Commission's ability to implement its statutory mandate is vitally
affected by the scope of the definition of "commercial speech" under
the First Amendment.

   In addition, in the years since this Court extended First Amendment
protection to commercial speech in Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. 748 (1976), the Commission has worked to
improve consumer access to truthful information about professional
services by initiating antitrust enforcement proceedings, /2/ by
conducting studies about the effects of advertising by professionals,
including attorneys, /3/ and by filing comments with state bar
authorities on the regulation of attorney advertising.  /4/ The
Commission accordingly has a substantial interest both in preserving
the government's authority to regulate commercial speech and in
eliminating unnecessary restrictions on the flow of truthful
information about professional legal services.

                               STATEMENT

   Petitioner Gary E. Peel is an attorney licensed to practice law in
Illinois, Arizona, and Missouri.  Pet. App. 19a.  In 1981, petitioner
became certified as a specialist in civil trial advocacy by the
National Board of Trial Advocacy (NBTA).  Id. at 30a.  The NBTA was
founded in 1977 to improve the quality of the trial bar and the
delivery of legal services by providing a national credentialing
process for trial lawyers.  See NBTA Amicus Curiae Br. 4.  Modeled
after the medical profession's specialty certification boards, the
NBTA certifies attorneys who meet specified standards of experience,
ability, and concentration in trial advocacy.  /5/

   Beginning in 1983, petitioner placed on his letterhead stationery,
between his name and the States in which he is licensed to practice,
the following statement:  "Certified Civil Trial Specialist By the
National Board of Trial Advocacy." Pet. App. 21a.  On April 15, 1986,
petitioner wrote to two clients on that stationery.  Those clients --
who were attorneys themselves involved in disciplinary proceedings
before the respondent, the Administrator of the Attorney Registration
and Disciplinary Commission of Illinois (ARDC) -- submitted
petitioner's letter as an exhibit to their submission to the ARDC in
their disciplinary proceedings.  Pet. 5.  Upon noticing the statement
of certification on petitioner's stationery, the Administrator, on
April 9, 1987, filed a complaint with the Hearing Board of the ARDC.
The complaint alleged, among other infractions, /6/ that the
certification statement on petitioner's letterhead violated
Disciplinary Rule 2-105(a)(3) of the Illinois Code of Professional
Responsibility, which provides that "no lawyer may hold himself out as
"certified' or a 'specialist.'" /7/

   In response to the Administrator's complaint, petitioner asserted
that "lawyer specialty advertising constitutes a form of commercial
free speech, protected by the first amendment." Pet. App. 22a-23a.
Besides using his letterhead to correspond with clients, petitioner
testified at his disciplinary hearing that he used his letterhead in
communications with other attorneys, with the ARDC, and in the
ordinary course of his law practice.  Id. at 26a.

   Following the hearing, on August 25, 1987, a panel of the ARDC
Hearing Board found that petitioner had held himself out as being
"certified" or as a "specialist" in violation of Disciplinary Rule
2-105(a) and recommended that petitioner be censured.  Pet. App. 20a.
The panel held that petitioner's certification representation was
"'misleading' as our Supreme Court has never recognized or approved
any certification process." Ibid.  On February 12, 1988, the ARDC
Review Board "concur(red)" with the hearing panel's decision and its
recommendation that petitioner be censured.  Id. at 16a.

   On review, the Supreme Court of Illinois adopted the recommendation
of the Review Board and censured petitioner.  Pet. App. 15a.  The
court explained that petitioner's certification claim was "decep(tive)
and confus(ing)" for two reasons.  Id. at 9a.  First, by stating that
petitioner was certified by the NBTA, "the general public could be
misled to believe that (petitioner) may practice in the field of trial
advocacy solely because he is certified by the NBTA." Ibid.  The fact
that the certification claim on petitioner's letterhead was positioned
directly above the list of States in which petitioner was licensed to
practice law added to the possibility of confusion, because "(t)he
letterhead contain(ed) no indication that licensure was by official
organizations which had authority to license, whereas the
certification was by an unofficial group and was purely a voluntary
matter." Ibid.  For this reason, the court concluded, "the claim of
certification by the NBTA impinge(d) upon the sole authority of this
court to license attorneys in this State and (wa)s misleading because
of the similarity between the words 'licensed' and 'certified.'" Ibid.
 Second, the court found petitioner's certification statement
misleading because it "tacitly attest(ed) to the qualifications of
(petitioner) as a civil trial advocate" and was "tantamount to a claim
of superiority by those attorneys who are certified (over
Illinois-licensed practitioners not so certified)." Ibid.

   Later in its opinion, the court agreed with the concern of an ABA
committee that "the terms 'specialist' or 'practices in a specialty'
or 'specializes in' particular fields have acquired a secondary
meaning implying formal recognition as a specialist and (that) use of
these terms is misleading, except in States which provide procedures
for such certification." Pet. App. 13a.  The court was particularly
concerned because the certification statement "was used on
(petitioner's) letterhead in conjunction with information about
official licensures in Illinois, Missouri and Arizona." Ibid.  /8/

                          SUMMARY OF ARGUMENT

   Statements describing the professional qualifications of an
attorney on his business letterhead constitute commercial speech.  On
the present record, the State's categorical prohibition of all
certification and specialization claims violates the standards
governing regulation of commercial speech under the First Amendment.

   1. Petitioner's contention that his certification claim is not
commercial speech and cannot be regulated as such is, in all
likelihood, not properly presented for review.  The briefs filed by
the parties in the court below, as well as the opinion of the state
court, reveal that the proper categorization of petitioner's speech
was neither pressed nor passed on by the Illinois Supreme Court.
Accordingly, this Court should decline to consider the issue on the
merits.

   To the extent the categorization issue is properly presented,
petitioner's letterhead certification claim plainly should be regarded
as commercial speech.  Contrary to petitioner's theory, this Court's
statement that the "core notion of commercial speech" is "'speech
which does "no more than propose a commercial transaction,"'" Bolger
v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983) (citing cases),
does not exhaust the definition of commercial speech.  Instead, the
Court's decisions indicate that commercial speech also encompasses (1)
implicit proposals for commercial transactions and (2) speech
integrally related to such transactions, especially where the speaker
has a financial interest in the transaction.

   In this case, petitioner's certification claim is both an implicit
proposal for a commercial transaction and speech integrally related to
one.  First, petitioner's certification claim is a representation
about the type and quality of the services he has to offer;  as such,
it contributes to the beliefs consumers form about his services and
enhances their propensity to retain him.  The fact that petitioner's
certification claim is directed at fellow practitioners and existing
clients rather than new clients does not negate the commercial nature
of his message, which remains designed to generate new referrals and
continued patronage of existing clients.  Second, petitioner's
certification claim is integrally related to commercial transactions
in which petitioner has a direct financial interest.  Like the
paid-for speech of a debt collector or credit bureau, petitioner's
letterhead certification claim effectuates purely business
transactions and is therefore regulable as commercial speech.

   2. On this record, the State's absolute prohibition of truthful
certification and specialization claims by attorneys violates the
First Amendment.  Such communications, like other forms of protected
commercial speech, facilitate the proper functioning of a market
economy by providing consumers with information about the nature and
quality of services available from competing practitioners.  Although
Illinois may protect consumers from false or misleading commercial
speech, the State has not demonstrated that certification and
specialization claims, which are entirely prohibited by its rule, are
inherently misleading.

   In addition, this Court's decisions establish that States may not
absolutely entirely prohibit truthful commercial speech unless the
State makes some demonstration that any potential injury cannot be
cured through a more narrowly drawn regulation.  In this case, the
State may not enact a prophylactic prohibition of all claims of
specialization or certification without giving careful consideration
to the cost imposed by its absolute ban and to obvious, narrowly drawn
alternatives for accomplishing the state interest.

                               ARGUMENT

   I. PETITIONER'S STATEMENT ON HIS BUSINESS LETTERHEAD THAT HE IS A
CERTIFIED CIVIL TRIAL SPECIALIST CONSTITUTES COMMERCIAL SPEECH

   A. Petitioner's contention that his certification claim is not
commercial speech and cannot be regulated as such is, in all
likelihood, not properly presented for review by this Court.  As we
read the briefs filed by the parties in the court below, as well as
the opinion of the Illinois Supreme Court, we agree with respondent
that the question of the proper categorization of petitioner's speech
was neither argued to nor addressed by the Illinois Supreme Court.
See Br. in Opp. 11.  Petitioner's federal constitutional challenge is
therefore raised here for the first time.

   With rare exceptions, this Court refuses to "decide federal
constitutional issues raised here for the first time on review of
state court decisions." Cardinale v. Louisiana, 394 U.S. 437, 438-439
(1969).  This rule rests on two considerations, both of which are
implicated in this case.  First, "(q)uestions not raised below are
those on which the record is very likely to be inadequate, since it
certainly was not compiled with those questions in mind." Cardinale,
394 U.S. at 439.  In this case, the slim record provides little
information bearing on the uses petitioner made of his letterhead,
which might affect the proper categorization of his certification
claim for First Amendment purposes.  Second, "due regard for the
appropriate relationship of this Court to state courts requires * * *
this Court * * * (to) refus(e) to consider any grounds of attack not
raised or decided in" the state court.  McGoldrick v. Compagnie
Generale Transatlantique, 309 U.S. 430, 434-435 (1940).  Here,
although the Illinois Supreme Court applied commercial speech
precedents, see Pet. App. 6-8, there was never "any real contest at
any stage of this case upon the point," Morrison v. Watson, 154 U.S.
111, 115 (1894), such as would allow the Illinois Supreme Court to
pass on this question.

   To be sure, petitioner vigorously maintained both in the
proceedings before the ARDC and in the Illinois Supreme Court that the
certification statement appearing on his letterhead was protected
speech under the First Amendment.  And in resolving this claim, the
state court necessarily decided, albeit only implicitly, that the
appropriate standard of review was that applied in assessing
regulations of commercial speech, as opposed to non-commercial speech.
 Thus, it could be argued that the question of the proper
categorization of petitioner's speech is "only an enlargement of the
one mentioned in the assignment of errors" below.  Dewey v. Des
Moines, 173 U.S. 193, 197-198 (1899).  See, e.g., Stanley v. Illinois,
405 U.S. 645, 658 n.10 (1972) (Cardinale rule is "fully observed" when
the case is disposed of "on the constitutional premise raised below"
(in that case, the Equal Protection Clause), even though the Court
arguably employed a different type of equal protection argument than
that raised in the state court).  Nevertheless, petitioner's
contention that his letterhead statement was fully protected speech is
distinct from the contention advanced and passed on below -- i.e.,
that his statement should be protected as commercial speech.
Accordingly, we believe that this Court should decline to review the
categorization issue in this case.  Cf. Illinois v. Gates, 462 U.S.
213 (1983).

   B. To the extent that the categorization issue is properly
presented, petitioner's letterhead certification claim should plainly
be regarded as commercial speech.  Although the "core notion of
commercial speech" is "'speech which does "no more than propose a
commercial transaction,"'" Bolger v. Youngs Drug Products Corp., 463
U.S. at 66 (citing cases)), the Court has never suggested that
proposals of transactions exhaust the definition of commercial speech.
 /9/ Instead, this Court's decisions demonstrate that commercial
speech is not limited to express proposals but also includes (1)
implicit proposals for commercial transactions and (2) speech
integrally related to a commercial transaction, particularly when the
speaker has a financial interest in promoting the product or service
that is the subject of the transaction.

   1. That implicit as well as explicit proposals for commercial
transactions constitute commercial speech is illustrated by Friedman
v. Rogers, 440 U.S. 1 (1979).  In Rogers, the Court held that an
optometrist's use of a trade name was a form of commercial speech.  Of
course, a trade name by itself does not explicitly invite the purchase
of a product or service.  However, like the pharmacist who wishes to
advertise his prices, considered in Virginia Pharmacy Board, an
optometrist using a trade name

         "does not wish to editorialize on any subject, cultural,
      philosophical, or political.  He does not wish to report any
      particularly newsworthy fact, or to make generalized
      observations even about commercial matters." (Virginia Pharmacy
      Board v. Virginia Consumer Council, 425 U.S. 748, 761 (1976).)
      His purpose is strictly business.  The use of trade names in
      connection with optometrical practice, then, is a form of
      commercial speech and nothing more.

Id. at 11.  The solicitation of business implicit in the use of a
trade name should be apparent.  Once a trade name has been employed by
a business for some time, it serves both to identify that business and
"to convey information about the type, price, and quality of services
offered for sale." Ibid.  In this way, the trade name is "part of a
proposal of a commercial transaction." Ibid.  /10/

   Speech integrally related to a commercial transaction is likewise
regulable as commercial speech, especially where the speaker has a
financial interest in promoting the transaction.  Thus, in Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a
plurality of the Court concluded that, although the expression at
issue (financial reports prepared by a private credit reporting agency
about private firms) did not constitute economic or commercial speech,
"many of the same concerns that argue in favor of reduced
constitutional protection in those areas apply here as well." Id. at
762 n.8.  Relying upon the Court's commercial speech decisions, the
plurality found that the credit reports could be regulated for their
accuracy for several reasons:  they communicated information of
interest solely to the credit reporting agency and its specific
business audience;  they were distributed to a limited audience;  like
advertising, they were unlikely to be chilled by incidental state
regulation, since they were created for profit;  they were arguably
more objectively verifiable than other forms of speech;  and finally,
they were likely to be influenced by market forces.  See id. at
762-763.

   Speech that either implicitly solicits a commercial transaction or
is integrally related to one serves an identical function to speech
that explicitly propses a commercial transaction.  All three forms of
speech are valued principally for the "facts" they convey.  In
contrast, discussion of governmental affairs, which lies "at the heart
of the First Amendment's protection," First Nat'l Bank v. Belloti, 435
U.S. 765, 776 (1978);  see Boos v. Barry, 108 S. Ct. 1157, 1162
(1988), is valued less for its factual content than for its political
and ideological expression.  See Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. at 779 (Stewart, J., concurring).
Proposals for commercial transactions and speech integrally related to
them share other identifying characteristics.  Factual representations
contained in each of these forms of speech are "easily verifiable,"
the speaker "presumably knows more * * * than anyone else" about the
subject matter, and in each case the speech is "more durable than
other kinds" of speech, because of the financial motivations of the
speaker.  Id. at 772 n.24.  Consequently, because of the "greater
objectivity and hardiness" of these forms of speech, it is "less
necessary to tolerate inaccurate statements for fear of silencing the
speaker." Ibid.

   2. In this case, petitioner's claim that he is a "certified civil
trial specialist," appearing in the context of the letterhead on his
business stationery, should be regarded as an implicit solicitation of
a commercial transaction.  Petitioner's statement is a claim by one
engaged in the provision of legal services about the "type * * * and
quality of services" he has to offer.  Friedman v. Rogers, 440 U.S. at
11.  /11/ Like product or service claims generally, petitioner's claim
contributes to the beliefs consumers form about his services and
enhances their propensity to retain him.  Like the commercial trade
name in Rogers, then, the claim made on petitioner's business
letterhead is "a form of commercial speech and nothing more." Ibid.

   That petitioner does not use his letterhead stationery to solicit
new clients directly does not alter the analysis.  By restricting use
of his stationery to current clients and fellow attorneys, petitioner
has simply chosen a more subtle way to solicit commercial
transactions.  Petitioner, like many attorneys who do not overtly
advertise their services, "must rely on his contacts with the
community to generate a flow of business." Bates v. State Bar, 433
U.S. 350, 378 (1977).  Indeed, "referrals by other lawyers constitute
a substantial portion of petitioner's legal business." Pet. 17.
Petitioner's letterhead claim helps build his reputation as a civil
litigator, and consequently helps petitioner secure new business from
fellow attorneys and from existing clients, who may refer to him
persons in need of a civil trial lawyer.  In addition, current
non-litigation clients may bring litigation matters to petitioner to
avail themselves of his implied prowess in the courtroom.  And even if
the certification claim adorning petitioner's letterhead does not
contribute new business, it may nonetheless ensure his current
clients' continuing satisfaction with his performance and retention of
his services.  /12/ While less overtly commercial than a public
advertisement, petitioner's letterhead claim is functionally
equivalent to more explicit forms of solicitation and merits no more
protection under the First Amendment.

   Petitioner maintains that to treat his letterhead claim as
commercial speech because of its potential to generate referrals would
sow confusion among attorneys, who would fear regulation whenever they
participated "in bar association and civic activities * * * motivated
in part by a desire to enhance professional opportunities by
acquainting others in the profession and the community with the
attorney's special knowledge and expertise." Pet. 17.  The use of a
letterhead that touts the attorney's professional qualifications,
however, is not merely incidental to some broader communicative
purpose that might properly be accorded greater First Amendment
protection than that given commercial speech.  Petitioner's letterhead
certification claim is "strictly business." Friedman v. Rogers, 440
U.S. at 11.

   Even if petitioner's letterhead were not used in any way to solicit
or retain business, it is nonetheless speech integrally related to
commercial transactions in which petitioner has a direct financial
interest, and is therefore regulable as commercial speech.  Consider
in this regard a letter demanding settlement of a personal injury
claim, payment of an alleged debt, or some other concession from its
recipient.  Particulary if that recipient is a layman, such a letter
may well strike with greater force if sent on stationery that
proclaims that its author is no stranger to the courtroom.  This form
of speech, like speech that proposes a commercial transaction, has
value only if it is truthful, and no broader goals of free expression
are impaired by requiring it to be accurate.

   Congress has expressly recognized the threat posed by the deceptive
and harassing speech that is sometimes used to collect debts, and has
regulated such speech in the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. 1692.  That Act prohibits anyone acting as a "debt
collector" (including attorneys) from making "any false, deceptive, or
misleading representation * * * in connection with the collection of
any debt." 15 U.S.C. 1692e.  The Commission is empowered to remedy
violations of the FDCPA "as if the violation had been a violation of a
Federal Trade Commission trade regulation rule." 15 U.S.C 1692(a).

   In other situations as well, Congress has regulated the accuracy of
speech which effects commercial transactions (and hence is integrally
related to such transactions), even though such speech does not
propose a commercial transaction.  For example, the Fair Credit
Reporting Act (FCRA), 15 U.S.C. 1681, imposes rules to ensure the
accuracy of consumer credit reports.  To ensure that the "speech" sold
by credit reporting agencies is accurate, the Act requires any agency
preparing such a report to "follow reasonable procedures to assure
maximum possible accuracy of the information concerning the individual
about whom the report relates." 15 U.S.C. 1681e(b).  A violation of
the FCRA "shall constitute an unfair or deceptive act or practice * *
* and shall be subject to enforcement by the Federal Trade
Commission." 15 U.S.C. 1681s(a).  See, e.g., Trans Union Credit
Information Co., 102 F.T.C. 1109 (1983).

   We recognize, of course, that much for-profit speech (e.g., the
paid-for articles of a journalist) is not commercial speech.  See
Board of Trustees of the State Univ. of N.Y. v. Fox, supra;  Riley v.
National Federation of the Blind, 108 S. Ct. 2667, 2677 (1988).  Cf.
Bolger v. Youngs Drug Products Co., 463 U.S. at 67 n.14 ("Of course, a
different conclusion may be appropriate in a case where the pamphlet
advertises an activity itself protected by the First Amendment.").
Still, some "paid-for" speech, such as that of the debt collector or
the credit bureau regulated by the statutes discussed above, is
clearly so integrally related to purely business transactions that it
must be subject to regulation as commercial speech.  This is
especially true where the speaker has a direct financial interest in a
commercial transaction (as does the debt collector), or develops and
sells the information solely for use in a commercial transaction (as
does the credit bureau).

   II. A BAN ON ALL TRUTHFUL REPRESENTATIONS OF PROFESSIONAL
SPECIALIZATION OR CERTIFICATION IS IMPERMISSIBLE ON THIS RECORD UNDER
THE FIRST AMENDMENT

   Although the First Amendment provides less protection to commercial
speech than to political expression, the decisions of this Court
recognize the important function that commercial speech serves in a
market economy.  In Virginia Pharmacy Board v. Virginia Consumers
Council, the Court observed that the free flow of commercial
information "is indispensable to the proper allocation of resources in
a free enterprise system." 425 U.S. at 765.  Accord, Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557,
561-562 (1980).  Commercial information enables consumers to make
better informed judgments in procuring the services of professionals,
Bates v. State Bar, 433 U.S. 350, 364 (1977), and facilitates the use
of professional services by consumers who otherwise would not find or
use professionals at all, id. at 370;  see Zauderer v. Office of
Disciplinary Counsel, 471 U.S. at 646.

   A. Consumers Benefit From the Information Conveyed by Certification

   The relationship between professionals who provide services and the
consumers who purchase those services is often characterized by
asymmetric information.  /13/ Many professionals provide services that
require highly specialized, technical expertise.  For their part,
consumers generally lack the information and repeat purchase
experience needed to evaluate the quality of professional services.
For example, an unsuccessful litigant may be unable to determine
whether he lost because his case lacked merit or because his lawyer
was incompetent.  Similarly, a patient who fails to recover from an
illness may be unable to determine whether the treatment's failure
reflects the limitations of medical science or those of her doctor.

   Voluntary certification is a market response to this informational
asymmetry.  By signifying that the professional's qualifications
satisfy some objective standard, legitimate certification mechanisms
facilitate consumers' differentiation of professionals "between those
who possess certain desired characteristics and those who do not." W.
Gellhorn, Individual Freedom and Government Restraints 147 (1956).
See A. Wolfson, M. Trebilcock & C. Tuohy, Regulating the Professions:
A Theoretical Framework in Occupational Licensure and Regulation 203
(S. Rottenberg ed 1980).  Examples of voluntary certification are
familiar to virtually every consumer.  The Good Housekeeping Seal and
the Underwriter's Laboratories emblem certify many products.  /14/ In
the area of professional services, medical boards certify
practitioners in most medical specialties.  Less formally, employers
often rely on certification in selecting their employees.  For
example, a law firm that recruits associates only from the ranks of
selected law schools is effectively using the law schools as
certification organizations.  /15/

   Professional certification can thus help consumers predict the
nature of the services available from various practitioners.  /16/ As
the Alabama Supreme Court observed in holding unconstitutional a total
ban on attorneys' truthful representations of certification, "(i)t
would be less than realistic for us to take the position that all
lawyers, in fact, possess equal experience, knowledge and skills with
regard to any area of legal practice." Ex parte Howell, 487 So. 2d
848, 851 (Ala. 1986).  Certification mechanisms may provide a useful
means for consumers to overcome informational shortcomings that
obscure differences in the experience, knowledge, and skills of
practitioners.

   Consumers are best served by certification programs when
certification represents an objective measure of a professional's
performance that is relevant to the services the professional
provides.  Absent these conditions, claims of certification may indeed
be deceptive.  It is not difficult to imagine "diploma mills" that
certify any practitioner willing to pay the requisite fee.  Claims of
certification may also be misleading to consumers when the
professional is certified in a field that is not relevant to the
services he offers.  For these reasons, government regulation of
professionals' certification claims may be appropriate to prevent or
cure deception.  /17/ As discussed below, the two States other than
Illinois to consider the issue in a litigated setting have opted for
regulation of certification programs, rather than altogether banning
certification claims, as Illinois has done.

   B. In Light of the Present Record, the Illinois Rule Prohibiting
Any Reference to Specialization or Certification Violates the First
Amendment

   This Court has construed the First Amendment to protect truthful
descriptions of the price and terms of routine legal services.  See
Bates v. State Bar, 433 U.S. at 384.  The Court has also protected
truthful statements announcing the availability of legal services.
See Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1917 (1988) (mass
mailing "to potential clients who have had a foreclosure suit filed
against them").  Those protections for speech concerning the
affordability and availability of legal services are incomplete
without similar protection for speech concerning the ability of the
professionals rendering such services.  /18/ Under the Court's
framework for analyzing state regulation of commercial speech, the
Illinois Supreme Court's flat prohibition of any claims of
certification or specialization violates the First Amendment.

   The Court's general approach for determining the constitutionality
of restrictions on commercial speech, including "the commercial speech
of attorneys," is "well settled." Zauderer v. Office of Disciplinary
Counsel, 471 U.S. at 638.  Accord, Shapero v. Kentucky Bar Ass'n, 108
S. Ct. at 1921;  In re R.M.J., 455 U.S. 191, 203 & n.15 (1982).  The
applicable test is that set forth in Central Hudson Gas & Electric
Corp. v. Public Service Commission, 447 U.S. 557, 564 (1980).  Under
that test, commercial speech is entitled to constitutional protection
if it is "neither misleading nor related to unlawful activity";  if
the communication meets that threshold test, it may then be restricted
only if (1) the government asserts a substantial interest to be
achieved by the restrictions, (2) the restrictions directly advance
the government's asserted interest, and (3) the restrictions are no
more extensive than is reasonably necessary to effectuate that
interest.  Ibid.

         1. Because the State Has Failed To Demonstrate That A
      Truthful Statement of Professional Specialization Or
      Certification Is Inherently Misleading, Petitioner's Letterhead
      Claims Are Entitled To Protection Under The First Amendment

   The initial question posed by Central Hudson is whether the
communication at issue is either inherently misleading or relates to
unlawful activity, in which case it may be prohibited entirely.  There
is no question of the lawfulness of the certification at issue in this
case.  The Illinois Supreme Court determined, however, that the
petitioner's truthful representation of NBTA certification on his
letterhead was "inherently misleading." Pet. App. 7a (quoting In re R.
M. J., 455 U.S. at 203);  Pet. App. 11a.  The gist of the Illinois
Supreme Court's concern was that, in the minds of the public, the
NBTA's voluntary certification of trial advocates would be confused
with the State's mandatory licensing of attorneys to practice law.

   However, it is highly unlikely that an attorney's truthful
representation that he has been certified by the National Board of
Trial Advocacy would mislead the public to believe that his
certification constituted some kind of state license to practice law.
In explanation of its hypothesis, the court relied on "the similarity
between the words 'licensed' and 'certified'." Pet. App. 9a.  The
court documented this assertion with a highly edited quotation of a
dictionary definition of the word "certificate." According to the
state court:

         Webster's dictionary defines 'certificate' as 'a document
      containing a certified and usually official statement . . .,
      especially,:  a document issued by . . . a state agency . . .
      certifying that one has satisfactorily . . . attained
      professional standing in a given field and may officially
      practice or hold a position in that field.'

Ibid.  (quoting Webster's Third New International Dictionary 367
(1986) (omissions and emphasis in original)).  In fact, the last
portion of the sentence modified by the state court reads as follows
in the original:

         (A) document issued by a school, a state agency, or a
      professional organization certifying that one has satisfactorily
      completed a course of studies, has passed a qualifying
      examination, or has attained professional standing in a given
      field and may officially practice or hold a position in that
      field.

Webster's Third New International Dictionary 367 (1986).  Thus, the
authority relied upon by the state court rebuts the State's contention
that the terms "certificate" and "license" are coextensive.  Although
that dictionary identifies an official sanction to practice a
profession as one meaning of "certificate," it gives as an equally
valid meaning the one used by petitioner -- a document issued by a
professonal organization certifying that one has attained certain
professional qualifications.  In addition, "certificates" that do not
constitute official state documents, such as those given for superior
job performance or attendance is seminars, are sufficiently common to
suggest that claims that a person is "certified" will not
automatically be equated with mandatory licensure by the State.  /19/

   The Illinois court's narrower contention -- that petitioner's claim
of specialization in a particular field falsely implies that he has
been formally recognized as a specialist by the State -- is also not
self-evident.  /20/ Webster's Third New International Dictionary, the
principal authority relied on by the state court, does not even
suggest in its definition of "specialist" that the word implies state
licensure.  Webster's Third New International Dictionary 2186 (1986).
Medical specialties are commonly recognized by private, voluntary
boards, /21/ and research reveals no State that formally licenses
medical specialists.  /22/ Moreover, one can readily think of numerous
other claims of specialty -- from "air conditioning specialist" in the
realm of home repairs to "foreign car specialist" in the realm of
automotive repairs -- that cast doubt on the notion that the public
would automatically mistake a claim of specialization for a claim of
formal recognition by the State.  Indeed, the Illinois Supreme Court
by rule permits trademark lawyers to hold themselves out as "Trademark
Lawyer(s)," Pet. App. 2a, and the court expressed no concern in its
opinion that claims of specialization in the trademark area imply
formal state recognition of that specialty.

   Neither of the two other state supreme courts to consider the issue
in a litigated setting even suggested that truthful statements of
certification or specialization could be mistaken for state licensing.
 See Johnson v. Director of Professional Responsibility, 341 N.W.2d
282 (Minn. 1983);  Ex parte Howell, 487 So.2d 848 (Ala. 1986).  Of
course, when "the possibility of deception is * * * self-evident," the
State "need not require * * * '* * * a survey of the . . . public
before it (may) determine that the (advertisement) had a tendency to
mislead.' FTC v. Colgate-Palmolive Co., 380 U.S. (374,) 391-392
((1965))." Zauderer v. Office of Disciplinary Counsel, 471 U.S. at
652-653.  But when the State's theory of deception is as dubious as it
is in this case, the State should be required to present some evidence
to support a claim of deception before it may promulgate an
across-the-board prohibition of an entire class of representations.
/23/

   The state's final basis for finding certification claims to be
inherently misleading is that such a statement "is tantamount to a
claim of superiority by those attorneys who are certified." Pet. App.
9a.  Although certification does convey a message that the
professional possesses an attribute that some consumers may find
desirable, it is not a statement that the professional is a superior
practitioner to those who do not possess that attribute.  /24/ Indeed,
the Illinois court's equation of a claim of a desirable attribute with
a superiority claim proves too much.  Under the court's logic, a
truthful claim that an attorney concentrates in real estate law or
that an optometrist is trained in fitting patients with extended wear
contact lenses could be altogether proscribed on the ground that
consumers might construe such statements to claim superiority over
professionals who do not advertise.  /25/ Just as in Zauderer v.
Office of Disciplinary Counsel, where the attorney advertised that he
"had represented other women in Dalkon Shield litigation -- a
statement of fact not in itself inaccurate," 471 U.S. at 640 n.9, the
State's defense that its restriction on the advertisement was "'an
allowable restriction * * * (of a claim) of asserted expertise,'"
ibid., is quite "beside the point," ibid.  "Although (the Court's)
decisions have left open the possibility that States may prevent
attorneys from making non-verifiable claims regarding the quality of
their services, see Bates v. State Bar of Arizona, 433 U.S. 350, 366
(1977), they do not permit a State to prevent an attorney from making
accurate statements of fact regarding the nature of his practice
merely because it is possible that some readers will infer that he has
some expertise in those areas." Ibid. (citation omitted).  Unless the
claim that the professional possesses the specified attribute is
deceptive for some other reason, /26/ it is entitled to First
Amendment protection.

   The State has failed to provide a colorable basis for concluding
that it is inherently or inevitably /27/ misleading for petitioner to
state on his letterhead that he has been certified as a civil trial
specialist by the NBTA.  Even if such a claim had the potential to be
misleading, however, it would not be bereft of constitutional
protection.  The decisions of this Court make clear that while States
may ban misleading commercial speech entirely, they "may not place an
absolute prohibition on certain types of potentially misleading
information * * * if the information also may be presented in a way
that is not deceptive." In re R. M. J., 455 U.S. at 203.  Accordingly,
if petitioner's otherwise truthful certification claim were
misleading, the State could still not ban the claim entirely if it
could be presented in such a way as to be neither deceptive nor
misleading.  This possibility is explored in the next section.

         2. A Prophylactic Ban On All Truthful Claims Of Professional
      Specialization Or Certification Is Broader Than Reasonably
      Necessary To Advance Any Demonstrated State Interest In This
      Case

   Because petitioner's certification claim is neither unlawful nor
inherently misleading, the question whether it may be prohibited must
be determined by means of the final three elements of the Central
Hudson inquiry -- namely, whether Illinois's interes is substantial,
whether its disciplinary rule advances that interest, and whether its
rule is no broader than is reasonably necessary.  Although the State
has the burden of justifying its restrictions, Board of Trustees of
the State Univ. of N.Y. v. Fox, 109 S. Ct. at 3034-3035, the Illinois
Supreme Court did not address these issues in light of its
determination that any claim of certification or specialization is
inherently misleading and can thus be prohibited entirely.  Measuring
Illinois's disciplinary rule against the dictates of the Constitution
as articulated by Central Hudson, it is clear that the state rule
sweeps far too broadly.

   As to the first element of the Central Hudson test, the State of
Illinois unquestionably has a substantial interest in ensuring that
representations concerning specialization or certification are not
used to deceive consumers.  /28/ The Illinois Supreme Court also
asserted a substantial state interest in protecting the State's
licensing powers by preventing confusion between voluntary private
certification and its own mandatory licensing.  Cf. Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792 (1975).

   With respect to the second element of the test, however, those
interests are only partly advanced by Illinois's disciplinary rule.
Obviously, an absolute ban on all certification and specialty claims
advances the State's interest of ensuring that such communications do
not mislead consumers -- an absolute ban on speech unquestionably bars
misleading (as well as truthful) speech.  But although the State also
has a valid interest in preventing the confusion of private
certification with its own licensing mechanisms, the preceding section
demonstrated that there is no basis either in common sense or in
evidence for concluding that such confusion in fact exists.
Therefore, the ban cannot be held to advance that interest.

   The last question posed by Central Hudson is whether the
restrictions are more extensive than is necessary to achieve the
State's interest.  As the Court explained in Board of Trustees of the
State Univ. of N.Y. v. Fox, while this last prong of the Central
Hudson test does not require the State to use the least restrictive
means to achieve its interests, it does require the State to employ "a
means narrowly tailored to achieve the desired objective." 109 S. Ct.
3035.

   Because, as demonstrated above, truthful claims of certification or
specialization are not inherently misleading, they plainly can be
presented in ways that are not deceptive.  It follows that such claims
cannot be entirely forbidden unless the State can show that the
prohibition adopted is not disproportionate to the state interest
served.  In re R. M. J., 455 U.S. at 203.  See Shapero v. Kentucky Bar
Ass'n, 108 S. Ct. at 1924;  Zauderer v. Office of Disciplinary
Counsel, 471 U.S. at 646.  In this case, the State has adopted a
prophylactic ban on all truthful statements concerning specialization
or certification without considering more narrowly tailored means of
achieving its purpose.  For example, insofar as the State is concerned
that the public will rely on claims of certification from spurious
organizations, it might promulgate rules for approving certifying
organizations.  That solution was adopted by the two other state
supreme courts that have considered the issue.  Johnson v. Director of
Professional Responsibility, 341 N.W.2d at 285;  Ex parte Howell, 487
So.2d at 851.  /29/ If confusion of private certifications with state
licenses were shown to be a problem, the State could require
disclosure of the private nature of the certification, or could
require placement of the certification claim away from the listing of
States in which the attorney is licensed to practice law.  /30/ In
keeping with this Court's directive that restrictions on commercial
speech be in proportion to the state interest served, however, a total
ban on truthful representations is disproportionate to the risk of
deception through spurious certification.  "(T)he free flow of
commercial information is valuable enough to justify imposing on
would-be regulators the costs of distinguishing the truthful from the
false, the helpful from the misleading, and the harmless from the
harmful." Shapero v. Kentucky Bar Ass'n, 108 S. Ct. at 1924 (quoting
Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 646).

                              CONCLUSION

   For the foregoing reasons, the judgment of the Illinois Supreme
Court should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JAMES S. RILL

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   STEPHEN J. MARZEN

      Assistant to the Solicitor General

   KEVIN J. ARQUIT

      General Counsel

   JAY C. SHAFFER

      Deputy General Counsel

   ERNEST J. ISENSTADT

      Assistant General Counsel

   JOSEPH KATTAN

      Attorney Federal Trade Commission

   SEPTEMBER 1989

   /1/ See, e.g., Fair Debt Collection Practices Act, 15 U.S.C. 1692
et seq. (prohibiting misleading and harassing communications by debt
collectors);  Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
(regulating, among other speech, communications between credit
reporting agencies and creditors regarding creditworthiness of
consumers).

   /2/ See, e.g., Massachusetts Board of Registration in Optometry,
110 F.T.C. 549 (1988);  Rhode Island Board of Accountancy, 107 F.T.C.
293 (1986);  Louisiana State Board of Dentistry, 106 F.T.C. (1985);
Montana Board of Optometrists, 106 F.T.C. 80 (1985);  Michigan Ass'n
of Osteopathic Physicians & Surgeons, Inc., 102 F.T.C. 1092 (1983);
American Medical Ass'n, 94 F.T.C. 701 (1979), aff'd, 638 F.2d 443 (2d
Cir. 1980), aff'd mem. by an equally divided Court, 455 U.S. 676
(1982);  American Dental Ass'n, 94 F.T.C. 403 (1979), modified, 100
F.T.C. 448 (1982), 101 F.T.C. 34 (1983).

   /3/ See, e.g., Cleveland Regional Office and Bureau of Economics,
FTC, Improving Consumer Access to Legal Services:  The Case for
Removing Restrictions on Truthful Advertising (1984).

   /4/ See, e.g., Comments of the Staff of the Bureau of Competition
of the Federal Trade Commission on the American Bar Association Model
Rules of Professional Conduct (Nov. 23, 1988);  Comments of the
Federal Trade Commission Staff on the Rules of Professional Conduct of
the New Jersey Supreme Court, submitted to the Committee on Attorney
Advertising of the New Jersey Supreme Court (Nov. 9, 1987);  Comments
of the Federal Trade Commission Staff on the Code of Professional
Responsibility of the Alabama State Bar, submitted to the Supreme
Court of Alabama (Mar. 31, 1987).

   /5/ According to the NBTA, certification as a civil trial
specialist requires, among other conditions:  (1) at least five years
of actual practice in civil trial law during the period immediately
preceding application for certification, of which at least thirty
percent of professional time is spent in civil trial litigation;  (2)
participation as lead counsel in fifteen or more complete civil trials
to verdict or judgment, including no fewer than 45 full days of trial
and at least five jury trials and participation as lead counsel in at
least forty additional contested proceedings involving the taking of
testimony (e.g., trials, evidentiary hearings, depositions, or motions
heard before or after trial);  (3) participation in forty-five hours
of continuing legal education in the specialty in the three year
period preceding application;  (4) provision of references by six
attorneys not presently partners or associates of the candidate;  and
(5) successful completion of a day-long written examination.  NBTA
Amicus Curiae Br. 8-9.

   /6/ The one-count complaint alleged violations of three
Disciplinary Rules:  (1) Rule 1-102, which proscribes violating a
Disciplinary Rule;  (2) Rule 2-101(b), which prohibits false,
misleading, or deceptive commercial publicity;  and (3) Rule 2-105(a),
which forbids lawyers other than patent, trademark, and admiralty
lawyers from holding themselves out publicly as certified or as a
specialist.  Pet. App. 17a.

   /7/ The rule provides that "(a) lawyer shall not hold himself out
publicly as a specialist," except for lawyers engaged in the practice
of patent, trademark, or admiralty law.  The rule permits a lawyer or
law firm to "specify or designate any area or field of law in which he
or its partners concentrates or limits his or its practice." With
those exceptions, however, "no lawyer may hold himself out as
'certified' or a 'specialist.'" Pet. 2-3.

   /8/ In response to petitioner's equal protection claim, the
Illinois Supreme Court distinguished between admiralty, patent, and
trademark lawyers, who are permitted to advertise themselves as
specialists under Disciplinary Rule 2-105, and lawyers engaged in any
other type of practice, who are not allowed to advertise themselves as
specialists.  In the court's view, the distinction rested on the
notion that "allowing attorneys practicing in admiralty to advertise
their specialties in no way implies that the admiralty attorney is
more capable than any other admiralty attorney because all such
attorneys may advertise the fact (of their specialization in admiralty
law)." Pet. App. 14a.  In addition, the court noted that,
historically, clients in need of counsel on patent, trademark, and
admiralty law found it difficult to locate attorneys engaged in these
practice areas;  "locating an attorney who is a civil trial advocate
would not involve the same difficulty," especially when Rule 2-105
permits them to represent their practices as "limited to" or
"concentrated in" a particular area of law.  Ibid.

   /9/ If "commercial speech" were synonymous with "proposals of
commercial transactions," the various terms of a commercial contract
would receive the same measure of constitutional protection as
political expression.  In addition, a definition of commercial speech
this limited would imply, contrary to this Court's precedents, that
full First Amendment protection must be afforded to "the exchange of
information about securities, corporate proxy statements, the exchange
of price and production information among competitors, and employers'
threats of retaliation for the labor activities of employees," Ohralik
v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978) (citations omitted),
as well as labor picketing designed to encourage a secondary boycott,
NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980),
and efforts to persuade a private standard-setting organization to
exclude a competitor's product, Allied Tube & Conduit Corp. v. Indian
Head Inc., 108 S. Ct. 1931 (1988).  Needless to say, none of those
types of expression merits the same degree of protection as political
dialogue and commentary.  But cf. Board of Trustees of the State Univ.
of N.Y. v. Fox, 109 S. Ct. 3028, 3036 (1989) ("speech that proposes a
commercial transaction * * * is what defines commercial speech").

   /10/ The Court reached the same result in Youngs Drug Products.  In
that case, the Court held that a contraceptive manufacturer's
informational pamphlets were commercial speech, 463 U.S. at 66-68,
even though they did not explicitly propose a commercial transaction,
id. at 63 n.4.  Without labeling it so, the Court found that the
informational pamphlets, which discussed family planning and venereal
disease, implicitly proposed a commercial transaction by either
"specifically refer(ing) to a number of (the firm's) condoms * * * and
describ(ing) the advantages of each type" or by "refer(ing) to (its
products) generically," when it had a large market share and could be
expected to benefit from promotion "without reference to its own brand
names." Id. at 66-67 n.13.

   /11/ For example, petitoner's letterhead describes the location of
his office, the colleague who practices with him, the States in which
each is licensed to practice, and the fact that petitioner is a
certified civil trial specialist by the NBTA.  Pet. App. 21a.

   /12/ The Commission's experience under its Trade Regulation Rule on
Mail Order Merchandise, 16 C.F.R. 435.1, provides a useful analogy.
That Rule regulates both claims used by mail order merchandisers to
induce consumers to purchase a product, and claims made by the
merchandisers concerning subsequent aspects of the transaction.  The
latter types of claims (regarding, among other things, when a product
will actually be shipped and why any shipping delay has occurred), may
be used to persuade the consumer not to withdraw from a transaction he
or she has already entered.  See also Fair Credit Billing Act, 15
U.S.C. 1666 (regulating statements made by credit card issuer
regarding consumers' obligation to pay disputed billing charges).

   /13/ See A. Wolfson, M. Trebilcock & C. Tuohy, Regulating the
Professions:  A Theoretical Framework in Occupational Licensure and
Regulation 180, 190-91 (S. Rottenberg ed. 1980) (hereinafter
Rottenberg);  Leland, Quacks, Lemons, and Licensing:  A Theory of
Minimum Quality Standards, 87 J. Pol. Econ. 1328 1979);  H. Leland,
Minimum-Quality Standards and Licensing in Markets with Asymmetric
Information, in Rottenberg 265;  S. Young, The Rule of Experts:
Occupational Licensing in America 15-17 (1987).

   /14/ As this Court recently observed, the promulgation of product
standards by private organizations "through procedures that prevent
the standard-setting process from being biased by members with
economic interests in stifling product competition * * * can have
significant procompetitive advantages." Allied Tube & Conduit Corp. v.
Indian Head, Inc., 108 S. Ct. at 1937.

   /15/ Even a department store may act as a certification body by
certifying the quality of the products it sells.  M. Friedman,
Capitalism and Freedom 146 (1962).  See also Marvel & McCafferty, The
Welfare Effects of Resale Price Maintenance, 28 J.L. & Econ. 363, 369
(1985).

   /16/ The information provided by certification of professionals is
necessarily predictive because it assumes a correlation between
measured inputs, such as the practitioner's training and experience,
and output.  Such predictions are by necessity imperfect.  Some who
have attained certification are likely to provide lower quality
services than some who have not.  See A. Wolfson, M. Trebilcock & C.
Tuohy in Rottenberg 204.  The same may be said for virtually any form
of certification.  For example, academic achievement is an imprecise
predictor of job performance but it is nonetheless used by those
employers who find its predictive benefits to outweigh the costs of
its imprecision.

   /17/ The Commission has taken enforcement action against
organizations that grant certifications without adequately evaluating
the products they approve.  See National Ass'n of Scuba Diving
Schools, Inc., 100 F.T.C. 439 (1982) (consent order barring
organization from issuing seals of approval without conducting tests
to determine whether products meet an objective standard of quality or
performance);  Hearst Magazines, Inc., 32 F.T.C. 1440 (1941) (order
prohibiting issuance of seals of approval without sufficient testing
to assure that products fulfilled claims made about them).  Cf. Ohio
Christian College, 80 F.T.C. 815 (1972) (false claim that college's
accrediting organization was "a recognized bona fide accrediting
agency").

   /18/ "Although the system may have worked when the typical lawyer
practiced in a small, homogenous community in which ascertaining
reputational information was easy for a consumer, commentators have
seriously questioned its current efficacy.  * * * The trends of
urbanization and specialization long since have moved the typical
practice of law from its small-town setting. * * * Information as to
the qualifications of lawyers is not available to many. * * * And if
available, it may be inaccurate or biased." Bates v. State Bar, 433
U.S. at 374-375 n.30.

   /19/ The literature on this subject draws a sharp distinction
between mandatory licensure and voluntary certification.  See, e.g.,
M. Friedman, supra, at 144-149;  S. Young, supra, at 18-19.

   /20/ The Illinois Supreme Court took judicial notice of a draft
report of the American Bar Association's Standing Committee on Ethics
and Professional Responsibility.  The report said that the term
"specialty" had "acquired a secondary meaning implying formal
recognition as a specialist." Pet. App. 13a.  The recommendations of
the draft report, to which the Illinois Supreme Court attached great
weight, have since been adopted by the ABA House of Delegates.  The
report evidently equates "formal" recognition -- which the petitioner
in this case plainly possesses -- with state recognition, for it
concludes that a truthful claim of specialization is misleading except
in States "which provide procedures for certification or recognition
of specialization." Ibid.  The report does not describe the
evidentiary basis for the ABA committee's conclusions.

   /21/ See F. Campion, The AMA and U.S. Health Policy Since 1940, at
32 n.*, 435-440 (1984).

   /22/ See F. Grad & N. Marti, Physicians' Licensure & Discipline 81
(1979) ("Unlike state licensure of the practice of medicine generally,
medical specialization is supervised by independent specialty boards,
which are private, non-profit organizations without any governmental
authority").  See generally id. at 81-83.

   /23/ In reviewing determinations by the Federal Trade Commission
that a practice is "deceptive" within the meaning of Section 5(a) of
the FTC Act, 15 U.S.C. 45(a), this Court has recognized that "the
words 'deceptive practices' set forth a legal standard and * * * must
get their final meaning from judicial construction," but that "the
Commission's judgment is to be given great weight by reviewing
courts," particularly because "the finding of a (section) 5 violation
in this field rests so heavily on inference and pragmatic judgment."
FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965).

   The deference accorded FTC determinations stems, in part, from this
Court's recognition that "as an administrative agency which deals
continually with cases in the area, the Commission is often in a
better position than are courts to determine when a practice is
'deceptive' within the meaning of the Act." FTC v. Colgate-Palmolive,
380 U.S. at 385.  See, e.g., the Commission's elaboration of the legal
standards for determining deception in Cliffdale Associates, Inc., 103
F.T.C. 110, 164-166 (1984).  Whether comparable deference is due the
determinations of a state body may, therefore, depend upon the
identity and functions of that body.  Cf. Zauderer v. Office of
Disciplinary Counsel, 471 U.S. at 659 n.3 (opinion of Brennan, J.)
("In evaluating the necessary form and content of disclosure, courts
of course should be guided by the 'enlightenment gained from
administrative experience * * *.").  Here, the State's implausible
theory of deception would not survive even the deferential review
applied to FTC determinations that a practice is deceptive.

   /24/ Claims of a desirable attribute are common in product
advertising.  While claims that a detergent contains a whitener, that
a tire is steel-belted, or that an automobile is equipped with
antilock brakes convey the message that the products possess a
desirable attribute, they do not convey the message that the products
are superior to all competing products.

   /25/ Under the Illinois court's logic, a physician could be
prohibited from advertising board certification.

   /26/ Compare In re R. M. J., 455 U.S. at 205 (truthful statement of
admission to Supreme Court Bar "could be misleading to the general
public unfamiliar with the requirements of admission to the Bar of
this Court," presumably because it may falsely imply that such
admission requires special expertise) with Ex parte Howell, 487 So.2d
at 851 (NBTA certification "indicate(s) a level of expertise with
regard to trial advocacy in excess of the level of expertise required
for admission to the bar generally").

   /27/ See In re R. M. J., 455 U.S. at 202 ("necessarily or
inherently misleading") Bates v. State Bar, 433 U.S. at 372
("inherently" or "inevitably" misleading).

   /28/ Although the Illinois Supreme Court did not articulate this
interest, the two other state supreme courts to have considered the
issue have expressed the concern that permitting statements of
certification to be made "might spawn spurious certifying
organizations whose certifications would be meaningless," Ex parte
Howell, 487 So.2d at 851, or mislead "an uninformed public by claims
of specialization and quality of services," Johnson v. Director of
Professional Responsibility, 341 N.W.2d at 285.

   /29/ The Illinois Supreme Court's observation that the state had
"not provided for any procedure for formal recognition of specialists
in the practice of law," Pet. App. 13a-14a, fails to satisfy the First
Amendment's requirement that the State "carefully calculate()" the
cost that its regulation would impose, Board of Trustees of the State
Univ. of N.Y. v. Fox, 109 S. Ct. at 3035.  The court did not consider
either the costs that its absolute prohibition imposes, or the
practicability of adopting certain obvious, narrowly-tailored means
for accomplishing its objectives, such as a state recognition
procedure.

   /30/ The cure for such potential deception would lie not in barring
the representation but in "requir(ing) a statement explaining the
nature of" the certification.  In re R. M. J., 455 U.S. at 205.  Cf.
Shapero v. Kentucky Bar Ass'n, 108 S. Ct. at 1923 (total ban of
potentially abusive communications improer where State can review
communications and punish wrongdoers);  Zauderer v. Office of
Disciplinary Counsel, 471 U.S. at 644-647 (total ban of solicitation
of legal employment through advertising improper since State can
punish lawyers who publish deceptive advertisements);  id. at 651
("'(W)arning(s) or disclaimer(s) might be appropriately required . . .
in order to dissipate the possibility of consumer confusion or
deception.'" (citations omitted));  In re R. M. J., 455 U.S. at 201
("'the preferred remedy is more disclosure, rather than less'");
Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 (1977)
("(T)he remedy to be applied is more speech, not enforced silence."
(quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis,
J., concurring)).