John F . Davis: -- upon the user of the machine and that is true, but the rate of $250 is determined by the kind of machine. Section 4462 (a) (2) refers to so-called slot machines which operate by means of insertion of a coin, token or similar object and machines which by application of the element of chance may deliver or entitle a player -- player to receive cash premiums, merchandize or tokens. This language does not refer to machines, which may be used so that they entitle a player to receive cash but machines which do entitle a player to receive cash. Also, if the --
Speaker: Don't they -- don't the machines do that?
John F . Davis: They do not, Your Honor. There's nothing on the machine which indicates that the player is entitled to any cash whatsoever. The machine merely indicates that he's entitled to some free plays, whether the -- whether the location owner does that or not is a matter for his own -- that's his own performance and not that -- that is indicated by the machine in any way.
Harold Burton: Justice Goodwill has written on the machine or told the man that --
John F . Davis: Well, it may be, Your Honor, but we -- it raises some serious problems, I would think, because if a machine has -- one day is a -- a machine that is to be taxed $10 on another day, it's a machine that's to be taxed at $250 depending upon what a particular user does on one day. I think that that is -- introduces some serious problems in regard to the enforcement of such a statute. Furthermore, if that were true, any vending machine, a candy vending machine could be made a so-called slot machine merely by removing the candy brand identification labels on the machine because that would introduce the element of chance. He would then have the requirement of the insertion of a coin, the element of chance because you wouldn't know what type of candy bar you would receive and you would receive it properly, which would then satisfy the interpretation which the Government contends for.
Harold Burton: As far as (Inaudible)
John F . Davis: Well, that may be, Your Honor, but I think that -- that -- it would mean that any type of machine would be subject to this tax and a person who was not exceedingly learned in this, in the law would be a violator at any time by any -- any time by any such innocent thing as that, removing the names of the candy bars.
Earl Warren: Suppose you just took the arm or the one-armed bandit and used an electric button that would propel a bar or something to start it. Would that change the character of the machine to such an extent that it wouldn't be taxable?
John F . Davis: No. I believe that the Circuit Court for this -- the Court of Appeals for the Seventh Circuit has held that such a device is -- is not -- does not change the character of the slot machine. That same Court in its opinion also said however that a slot machine is a machine that has an insignia on it.
Earl Warren: It has what?
John F . Davis: Insignia with fruit, and bells, and so forth.
Earl Warren: I beg your pardon.
John F . Davis: It has insignia on it which -- with fruit, and bells and so forth, but that constitutes a --
Earl Warren: And that's the only time the one-armed bandit is -- is recognized?
John F . Davis: According to that Court, yes Your Honor.
Earl Warren: Well, how about this -- these other ones that are more orthodox than that, that were in existence with the old duty machines to -- not to name of them?
John F . Davis: I'm not familiar with those, Your Honor. I'm sorry.
Charles E. Whittaker: (Inaudible)
John F . Davis: Yes, Sir.
Charles E. Whittaker: In your argument, if any of the facts due to the word (Inaudible) thus, the overall assumption is to operate (Inaudible), these are applications by whom?
John F . Davis: Well, it -- it seems to me, Mr. Justice Whitaker that that phrase must be read in connection with the fact that the word before it or the subject to which it -- to which the clause refers are the machines themselves and they may deliver or entitle a player to a cash. And therefore, that it would be the application of the element of chance in connection with the machine itself that the machine itself would -- would be the object that must be looked to, not the fact that two players at the side maybe betting upon the outcome of the machine for example. Also, if it could be said that the tax was upon the use of the machine and says the machine itself -- a question arises as to whether the tax is applicable to the misuse of the machine as distinguished from its use. Mr. Justice Brennan, when Government Counsel was arguing, he asked about the payouts on this machine, and the record shows that this agent was on the premises for six hours. And apparently, it's fairly clear from the record that he played the machine for several of those hours and that he observed other people playing the machine during that entire six-hour period. During that period, he received the $1.20 and another player received $1. That's $2.20 cents in six hours. I'm referring to this merely to show that this is not at all like a slot machine. A slot machine would deliver $2.20 cents in a period of a few minutes.
Earl Warren: Maybe.[Laughter] Do you mean -- do you mean that by -- by that that -- that there's so little chance of winning on this kind of an operation that it can't --
John F . Davis: No.
Earl Warren: -- reasonably be called a gambling chance?
John F . Davis: No. I mean that this is an amusement game that people are not there to collect money there. They're there to enjoy themselves by operating the machine.
Earl Warren: Well, do you mean to say that taking this by and large and nationwide that the income from games of this kind would be de minimis?
John F . Davis: I would think it would be. Yes, Your Honor. I think that's true.
William J. Brennan, Jr.: Well, would that bring outside the Act of one-armed bandit without -- it's delivered only $2.20 cents in six hours of play?
John F . Davis: That's the question which I've been a little bit concerned about when reading the Treasury Regulations which the Government refers to. Two examples are given in those Treasury Regulations. One is a pinball game which refunds free plays and cash. The second refers to what I believe we would call a one-armed bandit regardless of whether it pays out or not. Now, I believe that that second example given in the Regulation is clearly erroneous because the statute itself says that the -- not only must the machine be a slot machine but it must require the insertion of a coin, the application of chance and the payout of money or property. Therefore, I will argue that both those examples are erroneous. And since the second one is clearly so, there's no reason why the -- the first one isn't equally so. The -- now, to answer your question, whether a slot machine, which only paid out $2.20 cents would come outside the $250 hard tax. I believe it would not but it is still a slot machine. However, when we're talking about the machines in this case which are not one-armed bandit slot machines, we then must -- I believe the Government -- the Government might show that these are at least so similar to one-armed bandits that they could fall into that -- into that category. And the fact that they pay out this infrequently, it doesn't mean that they're -- the chances are that much less, but merely that the people play off the games. They don't ask for the money. In this case, the agent himself won some games. He played off so many and received cash for some. The lady who testified in behalf of the United States, the patron testified that she had won a certain number of games. She played off some of them and then when she's tired of that, she asked for the dollar that she had.
William J. Brennan, Jr.: Well, of course, the statutory language though is, may deliver or entitle. I suppose, may modified some title through that --
John F . Davis: I think that --
William J. Brennan, Jr.: -- or may entitle the person playing to receive cash.
John F . Davis: But still, all of the --
William J. Brennan, Jr.: I mean, he's entitled to test not whether in fact, does it?
John F . Davis: I think that's correct but that, yet, in every case it must be a slot machine and that a slot machine -- a one-armed bandit type slot machine that may or may not pay out or entitle the person to receive cash would be within this $250 category.
William J. Brennan, Jr.: Well, I gather your argument in any event is that so-called slot machine means only one-armed bandits.
John F . Davis: Yes, it is Your Honor.
William J. Brennan, Jr.: Now, on what do you -- what do you support then?
John F . Davis: The language I think itself, but in addition to that, I think the legislative history is -- is fairly conclusive. The original bill that was proposed provided for a single tax for $25 on two categories of machines. And the two categories were set out as so-called pinball machines and so-called slot machines. Then, after hearings were held, it was decided to differentiate the tax and put a $10 tax on pinball games and a $50 tax on slot machines. And that was the way the statute was originally enacted with two categories, one relating to pinball games and one to slot machines with the two different taxes. And in 1942, when the tax was amended, what Congress did according to the language of the reports that were issued by the congressional committees who considered the matter was to broaden the $10 category to include other amusement devices such as music machines and gun games and other types of games that would be found in a -- what used to be called penny arcades. Those reports by the congressional committee has indicated that -- and I'm quoting, “Under this amendment, there will be included in addition to pinball machines a great variety of other machines such as baseball and football games, machinegun games, music machine, so-called jukeboxes, and many other types.” So that -- at that point, Congress was broadening that category to include other games but keeping pinball games in the $10 category which was mutually exclusive from the so-called slot machine category $250. The Treasury Regulation which was adopted originally in 1942 as the Court of Appeals states, I think correctly that it is inconsistent with the statute. In addition to that, the tax returns, which appear on pages 94 and 95 of the record, indicate that the Government up until 1952 and the 1952 date is a date, which was testified to by one of the Government's witnesses. Up until 1952, the tax returns stated, “Coin-operated amusement devices, pinball and all other amusement or music machines $10 each and coin-operated gaming devices slot machines and all other machines, $100 each.” That was before the change was made to $250.
William J. Brennan, Jr.: Well, it's -- and all other machines involving element of chance.
John F . Davis: Oh, that's correct, Your Honor, but as long as pinball games are in the other category, they cannot be in the second one also.
William J. Brennan, Jr.: Well, even though they involved an element of chance? First line doesn't seem to have any reference to any -- can borrow other machine involving the element of chance, does it?
John F . Davis: Well, I -- I think that it can be said that when you read the -- the only thing you will have the opportunity to do is read the description of these games. If you will see that they are typical pinball games that -- this isn't a special kind of a pinball game. This is the kind of pinball game that everyone recognizes. Now, if a person must have a -- a patent lawyer to determine whether a pinball game is one kind or another kind involving a, well, more of a patent lawyer or an engineer or someone who can determine at every point whether this involves an element or chance -- of chance or not, it would result in a, I would think a chaotic situation in regard to the proper enforcement of this tax. Also --
William J. Brennan, Jr.: Well, if it's in this two found tests though, it must involve not only an element of chance but also that it delivers or entitles the player to cash, a premium or something else.
John F . Davis: That's true and also must be a slot machine, which I think to support an element.
William J. Brennan, Jr.: What do you do with the -- the Government's argument derived from that 1942 Amendment on the 1-cent vending machine?
John F . Davis: I believe that's a case where Congress may say something in a general manner and if enough people say that they think there's a question as to whether their particular activity is covered or not, it's very possible that Congress will cover that specifically even though it's been covered generally in the statute itself.
William J. Brennan, Jr.: Yes, but the 1-cent vending machine companies must have been afraid that they might come within slot machine, must they not, to ask special provision for themselves?
John F . Davis: Well, the -- at that time, the statute had recently been enacted. I suppose everyone was afraid that anything could happen. But after 1942, it was another 13 or 14 years before -- apparently, there was any enforcement of this statute even against pinball games that pay off in money. And I say that because not only it's the first time it has come to this Court, this issue, but also -- and the statute has been in effect since 1941. No Court of Appeals ever passed upon it. Yet, today, the Government says, “We have confiscated 500 machines. We have 14,000 machines that are paying this tax,” because there are many people involved. I submit that there would have been some adjudication to this issue before today if that statute had been enforced against pinball games that pay off money. Also, in the drive to -- the counsel says there's one inconsistent ruling. There are few others that tend to support this conclusion we reached on pages 89 and 90 of the record. And also the Government hasn't produced any rulings which are contrary to the so-called inconsistent interpretation and I assume that there are any such rulings that they would have had accessed to them and produced them. In regard to the question about skill, and whether there is any skill or chance or whether one predominates over the other in any of these machines, I suppose we would all agree that you can't find the machine outside of one-armed bandit that doesn't have some element of chance and some element of skill. In this case, the Government witnesses testified this patron who was in the resort testified that she thought she was able to use a skill to determine the result to some extent. The agent himself who came in and demanded the tax contended -- admitted on -- on cross-examination that by operating the plunger in a certain way by nudging the machine, it was possible to affect the result. Even the manufacturer of a competing machine made that admission that there was skill involved in this particular machine. Although, if you obviously would -- since he was a competitor, he would have the inclination to say otherwise that he possibly could. In my conclusion, I think that the statutory language may not be as clear as one side or the other would wish. I think it is clear enough to indicate and certainly more clearer in regard to supporting the interpretation placed upon that language by the Court of Appeals and on the opposite contention. A legislative history supports that language and there's nothing in the -- outside of these two tests that should change the result to the Court of Appeals.
Earl Warren: Were there any further, Mr. Davis?
John F . Davis: I have nothing to add, Your Honor.
Earl Warren: Very well.


William H. Rehnquist: We'll hear argument next in case number 94-226, Florida Bar v. G. Stewart McHenry. Mr. Richard.
Barry Scott Richard: Mr. Chief Justice and may it please the Court: This case arose out of the adoption by the Florida supreme court of a rule which prohibited attorneys from engaging in direct mail solicitation to victims of accidents or their survivors for a period of 30 days after the accident. The district court declared that the rule was unconstitutional, and the Eleventh Circuit affirmed. In an unusual postscript to its opinion, the Eleventh Circuit stated that it was disturbed that it was required by this Court's earlier decision in Bates and its progeny to reach that result. The concern that was expressed by the Eleventh Circuit reflected similar concerns expressed by at least seven justices in full or partial dissents in Bates and the cases following Bates. Bates itself was a limited decision by its own characterization. It held only that a State could not entirely prohibit an attorney from engaging in what the Court later in Ohralik referred to as restrained advertising of the rates for routine legal services and nothing more. A year later, in Ohralik, this Court stated that the States had a critical interest in maintaining the high standards of professionalism in connection with attorney advertising, and in fact it permitted States to prohibit altogether an attorney from engaging in direct, person-to-person solicitation of any nature.
Sandra Day O'Connor: Does Florida permit lawyers to solicit business in person?
Barry Scott Richard: No, ma'am, it does not. In doing so, this Court in Ohralik noted that an attorney's interest in his or her remunerative employment was charged with only marginal First Amendment concerns, and that regulation of that type of advertising falls within the State's proper sphere of economic and professional regulation. In Ohralik, the Court noted a significant distinction between the restrained advertising that the Court had permitted in Bates and what it referred to in an earlier case of Railroad Trainmen v. West Virginia as ambulance chasing. The case this Court stated in Ohralik did not involve ambulance chasing. Ten years later, however, in Zauderer and Shapero, the Court prohibited the States from regulating what in essence amounted to ambulance chasing. In Zauderer, the Court held that States could not prohibit direct solicitation of clients based upon a particular legal problem, and in Shapero, the Court took another giant step forward when it held that States could not regulate the direct, targeted solicitation of particular individuals who had suffered or were about to suffer a particular legal problem.
Sandra Day O'Connor: How do you distinguish this case from that of Shapero? It seems pretty close.
Barry Scott Richard: Justice O'Connor, I believe that this case can be distinguished from Shapero on the basis of the fact that it is a reasonable time, place, or manner restriction.
Sandra Day O'Connor: Well, doesn't a time, place, and manner restriction have to be content-neutral?
Barry Scott Richard: It does, and we believe that--
Sandra Day O'Connor: How is this content-neutral?
Barry Scott Richard: --Well, we believe it is content-neutral within the scope of what this Court has interpreted as content-neutral. What it said in Clark v. Community for Creative Nonviolence, and in Ward v. Rock Against Racism, and in Renton v. Playtime Theatres is that the issue, the principal inquiry in determining content neutrality, and I'm quoting from Ward, is whether the Government's purpose in control... is the controlling consideration. Government regulation of expressive activity is content-neutral, the Court said, so long as it is justified without reference to the content of the regulated speech.
Sandra Day O'Connor: But doesn't this regulation address only certain types of speech, and it's there with reference to a particular kind of speech?
Barry Scott Richard: Yes, Justice Connor, it does, but this Court has never--
Sandra Day O'Connor: O'Connor.
Barry Scott Richard: --has never said that simply because you must make reference to the content in order to determine whether or not it falls within the scope of the regulation, that it therefore violates the content-neutral rule.
Anthony M. Kennedy: Yes, but you justify this regulation by what the communication says.
Barry Scott Richard: We justify it--
Anthony M. Kennedy: And that was not true in the cases that you've cited.
Barry Scott Richard: --It justifies... I'm sorry.
Anthony M. Kennedy: Here, you do justify the regulation in terms of the content of the communication. That's the whole point of the case.
Barry Scott Richard: Well, Just--
Anthony M. Kennedy: Now, you might... you might still prevail, but it's not content-neutral.
Barry Scott Richard: --Well, Justice Kennedy, I would suggest that it's justified by the nature of the person to whom the communication is sent, the circumstances of that individual. In Renton, clearly it's necessary to make reference to the nature of the film to determine whether or not it contains adult situations, which is what the Renton ordinance provided, that you had to... you could prohibit it within certain zoned areas. You must, therefore, make reference to the content of the film to determine whether or not it's subject to the regulation, but what this Court said was that that wasn't the controlling factor if the purpose of it was not to control the content but rather to control the secondary effects of it. It said the same thing essentially in Ward, that you have to look at whether or not reference to the content was for the purpose of controlling the content. Here the content is permitted--
John Paul Stevens: But do you think the effect on the person to whom the message is addressed is a secondary effect within the meaning of Renton?
Barry Scott Richard: --Well, that... that is, Your Honor, if you're talking about the effect upon that individual. If you're talking about the--
John Paul Stevens: In Renton, you're not talking about the people who wanted to go to these theaters.
Barry Scott Richard: --Well, you are--
John Paul Stevens: You're talking about what it did to the neighborhood.
Barry Scott Richard: --You're talking about the effect upon the community and the surrounding area.
John Paul Stevens: Not the audience or the message. Whereas here, you're talking about the effect of the message on the people who receive it.
Barry Scott Richard: What we're suggesting, Your Honor, is that the State has the right to determine that it has a secondary effect upon the legal profession as a whole and, in turn, the administration of justice, and that the ability of the State to make that judgment has been entirely removed by this Court's prior opinions.
William H. Rehnquist: What the State is saying, then, is that a certain number of lawyers will chase ambulances if we don't prohibit them, and it's going to make the whole bar look bad if they find out that these people are chasing ambulances, therefore we'll prohibit it. That sounds like an odd justification.
Barry Scott Richard: What we're talking about, Justice Rehnquist, is the extent to which we are going to permit the States to make these judgments, as opposed to the extent to which the Federal courts are going to micromanage the question of attorney advertising, and what's happened here is that as a matter of law, essentially this Court has said that the question of whether or not a given type of attorney advertising will have an adverse effect upon the view of the public as to lawyers and the institutions that they serve is beyond the scope of State consideration.
William H. Rehnquist: Well, but is it really a terribly legitimate State goal to say, we want to protect not the substance of the reputation of the legal profession but the appearance of the reputation?
Barry Scott Richard: Well, Your Honor, I believe it is. The justices of this Court and most judges wear black robes. We hold these proceedings in a magnificent edifice. We require lawyers to meet certain dress codes. Why do we do that? We do that, I would--
Ruth Bader Ginsburg: Personal injury lawyers, not probate lawyers. Potential plaintiffs' lawyers, not potential defendants' lawyers. How can you say this isn't based on content if it is the potential personal injury plaintiff's lawyer that is being stopped within 30 days but not the probate lawyer, not the insurance adjuster, and not the attorney for the potential defendant?
Barry Scott Richard: --Well, that's indistinguishable, Justice Ginsburg, I would suggest, from the Renton situation with adult films. What we're really talking about when you ask that question is whether it's underinclusive, which is not a constitutional issue. You can make reference to the content if your purpose is not to control the content. Here, the State of Florida doesn't seek to control the content.
Ruth Bader Ginsburg: I don't see how, in terms of your justification, the privacy of the person, it makes any difference whether the person who is making the solicitation is an insurance adjuster for the other side, or a potential defendant's lawyer, or a probate lawyer. If the idea is this person should be let alone, should not get lawyer' letters, then I don't understand even the rationale for saying only certain kinds of lawyers.
Barry Scott Richard: Well, Justice Ginsburg, that may well be true, and it's an issue that was addressed by this Court in Ohralik, where they mentioned precisely what Your Honor is saying with regard to the possibility of adjusters contacting individuals. What the Court said in Ohralik, which I think is accurate, implicitly what they said was, that's not a constitutional question. That can be dealt with and, in fact, is dealt with by courts which view with a very dim eye agreements that are entered into by individuals prior to the time that they've had an opportunity to visit with a lawyer, but that's... that is--
Ruth Bader Ginsburg: Did Ohralik say only personal injury lawyers can't have face-to-face contact, or was this all lawyers?
Barry Scott Richard: --That is what the rule says, but this Court has said time and time again... well, it doesn't define the lawyer. It says that you can't contact a person in order to solicit business for a period of 30 days after a personal injury. Now, that, of course, wouldn't affect an adjuster, who's not a lawyer. It wouldn't affect a lawyer for an insurance company who is not seeking to solicit business. But this Court has said time and time again that the State may deal with these issues on a step-to-step basis as it sees a need for it, and that that's not a constitutional issue, so it may well be that the State ought to go back at some point and look at that question as to whether or not it should be expanded, but the constitutional issue before this Court is whether the State can deal with this as to anyone.
Ruth Bader Ginsburg: Does the State bar regard this Court's decision in Edenfield v. Fane as a guiding light in this area? You seem to be making a grand scale attack on everything since Bates, so I would like to know in particular, since that has been an important decision in this line of commercial advertising lawyer solicitation cases, Edenfield v. Fane, do you regard that as a precedent that you have no quarrel with?
Barry Scott Richard: The Edenfield case was a case of limited application, and we do not have a problem with Edenfield. We believe... and I'm glad you asked the question, because we believe that the essential problem here was created in Zauderer and in Shapero, and not solely because this... and that goes well beyond the question of whether this is a time, place, or manner restriction. We believe that the decisions that were made in Zauderer and Shapero were blatantly inconsistent with two other lines of cases that this Court had been deciding simultaneously. One of them was the cases on commercial solicitation, commercial advertising generally, and the other was what we have referred to in our brief as the institutional speech cases. What this Court said in Central Hudson v. Public Service Commission and in Board of Trustees v. Fox is that the States are entitled to considerable deference in determining where to draw the line on commercial advertising, and when it begins to be too much to meet the requirements of the First Amendment. In Board of Trustees v. Fox, in addition to saying that there is no least restrictive means test, the Court said this: it said, we have been loath to second-guess the Government's judgment regarding where to draw the line. We take into account the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires, and provide the legislative and executive branches needed leeway in a field, commercial speech, traditionally subject to Government regulation. Well, at the same time the Court was saying that, it was saying with respect to lawyers... and this is just commercial solicitation, which in Ohralik the Court said was only marginally charged with First Amendment protection. At the same time it said that, it essentially, in Zauderer and Shapero, gave the courts... gave the States no leeway... no leeway to deal with this. It basically said, you don't have a substantial enough interest to consider it. In fact, in Shapero, in part 3 of Shapero, which represented the views of only four justices but nevertheless was part of the opinion of the Court, it said you couldn't even deal with the format of the letter. You couldn't even deal with the letter that was essentially a used-car type of an advertisement that said to an individual, free legal services, that made subjective predictions of success, that said, call me now. Now, In Ohralik, this Court said that the State had a substantial interest in avoiding the potential that a lawyer, because of the lawyer's training and experience, could be overbearing with an individual, and yet, in Shapero, in part 3 of Shapero, it essentially said, you can use any type of enticement to get that individual to call you, and then you're basically free.
Stephen G. Breyer: So suppose that in Florida... I can... suppose there's been a bad accident, and it involves a man or a woman who knows nothing about law, so obviously they're terribly upset, and I can understand why you might want to keep lawyers away from them for 30 days. But suppose that man or that woman, who's terribly upset and doesn't have much money and knows nothing about law, would like to find a lawyer. How, in Florida, can they do it? That is, what well-known ways are there for people who know nothing about law, who have just been in a bad accident, who think they might need a lawyer, who don't have friends who are lawyers, how do they find out where to go?
Barry Scott Richard: Well, there are numerous ways to do it. They can, of course, look in the yellow pages, they can call the local bar, they can call friends who are lawyers, but beyond that, we are not suggesting to this Court--
Stephen G. Breyer: I'm not asking you... I wanted a factual answer. That is, I'm... what actually do they do? They could go to the yellow pages, maybe they have a friend who has a lawyer, and you say, call the bar. What does that involve? Is there a system so that people who don't know how to get to lawyers can?
Barry Scott Richard: --Both of--
Sandra Day O'Connor: Is there a lawyer referral service-- --Yes, what is there? --operative?
Barry Scott Richard: --Yes, ma'am. Both at the State level and at the local bar level there are lawyer referral services.
Stephen G. Breyer: How does it work?
Barry Scott Richard: You call the bar and they make available to you from a list of lawyers those who have indicated that they handle that type of work. In addition, Florida recognizes both designation of fields and specialization as certification, so there are a list... lawyers are listed in the yellow pages by designation of a field or by certi... the fact that they've been certified to handle a particular field. My understanding is that most States now permit lawyers to list in the yellow pages with designations.
Sandra Day O'Connor: Do lawyers advertise on television in Florida?
Barry Scott Richard: Yes, they do.
Sandra Day O'Connor: Personal injury lawyers?
Barry Scott Richard: Yes, they do.
Sandra Day O'Connor: And do they advertise on billboards in Florida?
Barry Scott Richard: I'm not aware of whether or not we have billboard advertising, but this Court's decision in Shapero would not allow the State to control billboard advertising. In fact, part 3 wouldn't allow the State to control what it looked like.
John Paul Stevens: But should we be con-- --May I ask another question about the Florida practice? Does the bar routinely either prohibit or encourage letters to accident victims within the first 30 days of the accident?
Barry Scott Richard: The bar takes no position as to that, because it believes it is not permitted to as a result of this Court's decisions.
John Paul Stevens: Did the bar association... I'm talking about the bar association, not individual lawyers. Does the bar association affirmatively make an effort to make known to the accident victims that they have this referral service available?
Barry Scott Richard: Oh, yes, sir, and as a matter of fact it has publications that it attempts to widely distribute, it has public service announcements that it distributes, all of which a bar is entitled to do as a public service in the Florida--
John Paul Stevens: And they mail those to the accident victim within the 30-day period after the accident?
Barry Scott Richard: --I'm not aware of any practice by the Florida Bar to mail things to any victims.
John Paul Stevens: I'm just wondering if it would be consistent with your position here to say maybe we should prohibit it because they don't want to be... they're... you know, they're emotionally disturbed during that 30-day period.
Barry Scott Richard: Well, I would like to address that, Justice Stevens. In the first place, I think that would... personally, I see nothing wrong with a letter that does not seek to get business for a given lawyer advising an individual that they have rights that they may seek a lawyer for, and in that regard, the Florida Bar is not asking this Court to reverse the holding in Bates. The holding in Bates simply said that restrained advertising of availability and prices of services for routine legal matters are permissible under the First Amendment. We don't challenge that, but we believe that the Court should return to the States the ability to manage the degree and the manner in which lawyers proceed to do that, rather than--
Ruth Bader Ginsburg: Within limits. You're not quarreling with Ibanez.
Barry Scott Richard: --That's correct. Ibanez, which--
Ruth Bader Ginsburg: Indeed, you supported... you came in as a friend of this Court and said the State is not permitted to have that kind of regulation.
Barry Scott Richard: --Yes, Justice Ginsburg, and we were happy with the opinion that you wrote in the case, and the opinion was a unanimous opinion, and we had no problem with Ibanez whatsoever. Ibanez went to an extreme by saying that a person could not even... a lawyer, according to the Board of Accountancy, could not even indicate that that lawyer was also a CPA, a simple, truthful statement which had... which reflected nothing with respect to any substantial State interest, and I can't see how that could, either. Now--
Stephen G. Breyer: Well, maybe you want to add a word or two. You're interested very much in all these legal cases, which is right, but I'm interested at the moment in the facts. That is, on the one hand you're saying what justifies this are lawyers' reputations and the need to give a man or a woman a little... a few days of peace. On the other hand, they're saying, but how would such a person find a lawyer when they might need one? Now, so far you've said the yellow pages, which strikes me as not terrific, the... maybe they've seen some ads somewhere, and then there's this thing called the referral service. But I mean, does the referral service get to people? Do they know about it? Is there a way for a human being to find a lawyer when he or she feels he needs one?
Barry Scott Richard: --Justice Breyer--
Stephen G. Breyer: One way is they'll write him a letter, and then he'll know somebody's interested.
Barry Scott Richard: --I'd like to give you several responses to that. There are those things. In addition, because we are not asking this Court to overturn Bates, there's no reason why a lawyer who desires to make the public aware of the fact that that lawyer is available and provides services in a given area should not be able to run an ad. That's not the issue, we believe, in this case. In addition, we don't believe that it's a proper, constitutional purpose for the Federal courts to micromanage the question you're raising, which is, to what extent should States be able to tell lawyers that they can or cannot engage in these activities? The one other remark that you made that I would like to respectfully comment on was that the substantial State interest that we were suggesting here was that lawyers be able to protect their reputations, which is what the respondent wishes to suggest is the substantial State interest, and I think that trivializes what we are really suggesting here. We are not saying that lawyers should be able to protect their reputations, but what we are saying is that we learned several hundred years ago that the manner in which we treat our fundamental institutions, that the dignity which we grant to those institutions, has a great deal to do with the respect the public has in them and their credibility as institutions.
Anthony M. Kennedy: May I follow up on how this works? Suppose that you do go to the yellow pages and you phone an attorney and you say, I've had a terrible accident, will you please write me a letter about the terms of the employment, and this is all within the first or second day. Is the lawyer permitted to write the letter?
Barry Scott Richard: Yes, he is, or she is.
Anthony M. Kennedy: How does... that's... is there some exception to the written communications rule that you quote at page 2? I mean, I assumed that your answer would be what it is, but I don't get that from reading the regulation at page 2 of your brief.
Barry Scott Richard: Florida interprets that rule not to prohibit it once a contact has been made with the lawyer and he has a relationship with the potential client. Florida does not interpret that rule to prohibit a lawyer from responding to a prior request by a client, or a potential client.
Anthony M. Kennedy: What about... suppose a relative of a client writes... tells the attorney please write my nephew?
Barry Scott Richard: Your Honor, you're asking me questions now that I don't know the answer to. I don't know whether Florida has addressed that, or the extent to which it has addressed that. The only concern that I have here is the extent to which the lower court said Florida cannot address it at all.
Anthony M. Kennedy: Well, we have to examine the regulation as it's given to us, and as I read it, at least in the case that I put the lawyer could not write the client, or the proposed client.
Barry Scott Richard: Florida I can tell you doesn't interpret it that way, but the question of that interpretation was never an issue in this case, and--
David H. Souter: Mr. Richard... I'm sorry. I didn't mean to interrupt you. Please finish your answer to Justice Kennedy.
Barry Scott Richard: --I was just going to point out that there's a significant distinction between what Your Honor is suggesting and a mass mailing of innumerable letters to an individual who has just been involved in an accident or a personal tragedy at any point and who has not sought any lawyer, and finds a virtual feeding frenzy taking place as to who that individual is going to select as a lawyer, or whether that individual is going to select anybody, and the issue here which this Court has recognized is that there is a substantial State interest in protecting the professional standards of the bar, and the question is what does that mean, and I would suggest--
David H. Souter: I thought your... I thought your primary justification was protecting those who were in shock and grief.
Barry Scott Richard: --Well, we--
David H. Souter: And you said, we don't want to trivialize this case by saying we're simply trying to protect the image of the bar.
Barry Scott Richard: --We see--
David H. Souter: I took it from that that your primary justification is the sensibilities of the people to whom the letters would be addressed.
Barry Scott Richard: --Justice Souter, we have advanced two separate substantial interests. One of them is the protection of the... or the enhancement of the professional standards of the legal profession, and the second is not so much to protect individuals, but that the State has a substantial interest in maintaining a community standard of privacy and tranquility, the same thing--
David H. Souter: Well, if that is the... to the extent that that is the justification, may I take you back to the underinclusiveness point, because the issue that is raised by that is the extent to which the regulation in question really does have any substantial effect in accomplishing your object, and when it is as underinclusive as this is... insurance adjusters can get in touch with them, potential defendants can get in touch with them, probate lawyers can get in touch with them, and so on... isn't that a rather heavy mark against your justification, to be as underinclusive as that?
Barry Scott Richard: --Well, the Florida supreme court, and the Florida Bar prior to that, perceived a particular problem. The problem that the bar perceived and that the supreme court perceived was that attorneys were obtaining mass listings from the Department of Motor Vehicles of individuals who had been injured, and sending mass--
David H. Souter: Well, I have no doubt of that. I mean, I will assume that, but there's still the problem of underinclusiveness, because the same people can be victimized by insurance companies and by defendants and by other kinds of lawyers, and how do you deal with the underinclusiveness problem?
Barry Scott Richard: --Well, this Court has said in a number of cases that underinclusiveness is not itself unconstitutional.
David H. Souter: No, but it goes very much to the question of the degree to which your regulation advances the interest that you claim.
Barry Scott Richard: I think that's correct.
William H. Rehnquist: I suppose one reason for the underinclusiveness, if it be that, is that the Florida bar can't regulate insurance adjusters.
Barry Scott Richard: Well, that is an answer, Your Honor, and that's correct. It cannot regulate insurance--
John Paul Stevens: No, but it can regulate defense lawyers and probate lawyers.
Barry Scott Richard: --It can regulate defense lawyers, but Florida apparently has not perceived a problem with defense lawyers inundating an individual who's been... who has been injured.
John Paul Stevens: There can only be one defense lawyer at a time, I suppose. That's right. There wouldn't be a flood of them in any one case. [Laughter] But it seemed to me it might be equally offensive to the plaintiff.
Barry Scott Richard: You know, Your Honor, the lower court here didn't strike--
John Paul Stevens: What is the evidence that there's these mass mailings? Is that really the fact? I can understand there'd be a lot of them, but what do you mean by mass mailing? What does a typical injured plaintiff get in the mail, according to their--
Barry Scott Richard: --That's not in the record, Your Honor, and I don't know the answer to that question.
David H. Souter: --Mr. Richard, for purposes of judging this case, do we have to simply... do we not, in fact, simply assume that what is being used here is State power, and therefore it... as a practical matter it's the State rather than a bar association as such which is being judged by First Amendment standards? Is that a correct assumption?
Barry Scott Richard: That is correct, Your Honor. It's the Florida supreme court that adopts this rule. Through the Florida bar as an arm of the court, the court requests the bar to propose rules to it, but it is the Florida supreme court, after public debate, at which, by the way, the Florida supreme court hears from the public at large... it's not limited... the court will adopt the rule as it sees fit, and will modify the rule that's been proposed.
Ruth Bader Ginsburg: And one of those justices made the point that several of the questions you've received are trying to get at... Justice Shaw. How do you answer his concern that this ban will effectively deprive many accident victims of information that would be helpful to them at the most crucial time for them, that that 30-day period may be the most crucial time when they need help most?
Barry Scott Richard: We think here are numerous ways in which the Florida bar and the Florida supreme court through the bar can remedy that problem, which is essentially a problem of the social question of how we make people aware of the accessibility of legal services. We do not believe it's necessary to remedy that problem by the Federal courts, and in particular this Court, decreeing that it is beyond the power of the State to consider the strictly commercial implications of certain types of attorney advertising. Because what's happened here is, it has been raised to a constitutional level, and what has been imposed upon the States in reality is a least restrictive means test and what appears to be pretty close to a clear-and-convincing-evidence test, something that hasn't been done in any of the other commercial fields, and something in fact that hasn't been done in fields involving political and ideological speech when it comes to issues of protecting public privacy and public tranquility and issues involving matters that may affect the mission of other fundamental public institutions in which this Court has said considerable deference must be granted to the States to make this decision. Instead, when it comes to attorney advertising, the Court has interjected itself and Federal courts have interjected themselves to the point of saying, we will manage this issue, and we will allow the States whatever the other problems may be that the States ought to be able to address. The real question here is, shouldn't the States be able to address whether or not an attorney, by the manner in which he is approaching individuals with whom he has no prior relationship, by the manner in which he is presenting himself and, in turn, the legal profession, and perhaps in turn the administration of justice, shouldn't the State be able to consider whether or not that has an unduly adverse effect upon not only that individual, not only a community standard of propriety in terms of privacy and tranquility, but upon the entire--
William H. Rehnquist: Thank you, Mr. Richard. Your time has expired.
Barry Scott Richard: --Thank you, Mr. Chief Justice.
William H. Rehnquist: Mr. Rogow.
Bruce S. Rogow: Mr. Chief Justice, and may it please the Court: The fundamental premise of the commercial speech cases is that truthful, nonmisleading information is of great benefit to the listener, and that's what this case is about. The letters at issue in this case are highly regulated by the Florida Bar. At page 12-A of the appendix to our brief, we set forth the extensive regulations about these letters... what they must contain, what they must say, the fact that the envelope and each page must be stamped "Advertisement". These are the least intrusive, the most discreet forms of communication, and the question is whether or not that mode of communication can be precluded by the Florida Bar for a period of 30 days during the time, as then Chief Justice Shaw of the Florida supreme court said, during the time when a person is most in need of the information. And yes, the question of underinclusiveness, as Mr. Richard I think has now conceded, goes to whether or not this regulation directly and materially advances substantial State interests, and if one of those State interests is this theoretical privacy right, then how is that State interest directly and materially advanced by a rule which precludes the lawyer from sending a letter informing a person of his or her rights but allows the insurance adjuster or the defense lawyer to communicate with that person any time.
William H. Rehnquist: Well, certainly some of our cases, Mr. Rogow, in the commercial speech area have said that the Government can confront evils one step at a time. It doesn't have to regulate the whole waterfront before it addresses a single evil that it perceives.
Bruce S. Rogow: It is true, Mr. Chief Justice, but there are several problems with this. One, the evil, if, indeed, it is an evil to hear truthful, nonmisleading information, and we don't subscribe to the notion that that's evil or injurious in any way, but that evil, if it's going to be directly and materially stopped, if a State regulation is going to accomplish that, has to be even-handed. It has to be fair.
Antonin Scalia: Why can't they say-- --Of course, at the time the First Amendment was adopted, all advertising by lawyers could have been restricted. I mean, this is a... the change was effected by our decision in Bates. I don't know that the change has to go so far as to say that you cannot in any respect treat lawyers differently.
Bruce S. Rogow: Justice Scalia, the change--
Antonin Scalia: That's been a long tradition.
Bruce S. Rogow: --It has, and lawyers are treated differently. Indeed... indeed, the regulations that the Florida Bar imposes are different.
Antonin Scalia: So at least insurance adjusters are irrelevant.
Bruce S. Rogow: No, I don't think they're irrelevant when the purpose stated by the bar, Justice Scalia, is to protect the privacy of people at moments when they've had an accident.
Antonin Scalia: That's one purpose. The other purpose is the decorum that's appropriate to the instrumentalities of justice.
Bruce S. Rogow: The State has made this argument, which basically is an image and dignity argument. There is absolutely nothing in this record that supports the notion that truthful, nonmisleading letters sent to people, highly regulated letters, have any impact upon the administration of justice. That's a hollow argument. It's a shallow argument that's been made. The lesson from Virginia Board of Pharmacy and Central Hudson is that commercial speech is of value, and if it is of value, then it must have protection. All I hear... I hear no rule suggested by the bar. I hear this kind of vague leave it to the States, but--
William H. Rehnquist: Well, Mr. Rogow, supposing the bar were to conclude, and the Florida supreme court should agree, that this kind of solicitation gives an impression to people who receive it that lawyers are extremely greedy, and very anxious to make a lot of money. Do you think the State or the bar has any... consistent with the First Amendment could somehow try to prevent that image from prevailing?
Bruce S. Rogow: --I do not think it could try to prevent that image by trying to preclude truthful, nonmisleading speech. There are ways to try to preclude it. President Bushnell of the ABA in this month's ABA Journal, in his president's letter, says we should address the good things that we do. That is the high road. The high road is to let the public know, as the bar in Florida and other States have done, that lawyers serve important purposes righting wrongs, redressing grievances, not to--
William H. Rehnquist: Well, what if the Florida State Bar tries that and it just doesn't work. People still think lawyers are greedy. [Laughter]
Bruce S. Rogow: --We have fought an image issue for a long time, Mr. Chief Justice. It's not going to be remedied simply by precluding these letters, certainly not under the constitutional standards that have been set by this Court.
John Paul Stevens: We should probably pass a statute saying you can't say un-nice things about lawyers. [Laughter] And not read Dickens or Shakespeare. I wondered if that was them. And not admit greedy people to practice law.
Bruce S. Rogow: I'm sorry, Mr. Justice Souter?
David H. Souter: Not admit greedy people to practice law.
Bruce S. Rogow: Justice Breyer--
Antonin Scalia: I'm certainly glad I never passed through the stage of being a lawyer before-- [Laughter] It might have helped you, actually. The... what I wondered was this. It seemed to me they're... a) I don't know if they're arguing this as their strongest justification, but it did make an impression upon me that a man or a woman who has just suffered a serious accident, maybe has lost a husband or a wife, is not a model of a rational consumer, and so what they're saying is, protect that person for 30 days both from harassment and so that when a choice of lawyer is made it's more rational. You can tell them during that 30 days who's available. You can refer them to the referral service. You could keep big lists of people. You could keep all the advertising material in one place and tell them, go there, but for 30 days, leave them alone so that they have a chance to make this decision more rationally. Now, that I took it, at least to me, was a fairly powerful justification. Now, what's wrong with it?
Bruce S. Rogow: --Well, Justice Breyer, grief is not the gravamen of this rule and, indeed, there are two other portions of the rule that address that. One precludes harassment, and the other says that if a person... if a lawyer knows or should know that a person is not able to make a principled decision, then that person should not be contacted. But remember, this rule applies to all accidents, not just the grief-stricken situation, and I think that people who are in grief need some information, too. The suggestion that a letter, which can be discarded, and this Court has said that in both Bolger Drugs and in Shapero, the suggestion that a letter which can be discarded somehow intrudes upon that grief I think stretches the notion of this mode of communication.
John Paul Stevens: Yes, but your opponent says it's not one letter, it's a flood of letters, and as I understand it you said there's nothing in the record, and I haven't read this, but they do refer to a study that the bar made that indicated that this was regarded as a problem of some magnitude.
Bruce S. Rogow: The study that the bar made was made of 200 people in 1987 who apparently received direct mail letters, and something like 11 percent, or 21, said that they were offended by receiving the direct mail letters. Now, that is not the kind of burden of proof that the bar would have to carry under Ibanez or any of the First Amendment cases dealing with this. But even if some people are offended... and I'm sensitive to the good manners of respecting grief. Even if they are--
Sandra Day O'Connor: Well, do you think your client is sensitive to such matters? Perhaps you are, Mr. Rogow, but this... now, who is it you're presently representing? It's not a lawyer, it's some entity, as I understand--
Bruce S. Rogow: --It is a lawyer, Justice O'Connor. John Blakely is a lawyer who sends direct mail advertising, and he is a plaintiff in the case along with Went For It, Inc., which is a referral service.
Sandra Day O'Connor: --Went For It, Inc., and do you represent Went For It, Inc.?
Bruce S. Rogow: I do, and--
Sandra Day O'Connor: And would you describe for us just what it is that Went For It, Inc. does in Florida to contact accident victims? Does it study police reports and get information about any incidents and then identify the people and write letters?
Bruce S. Rogow: --It does not, Justice O'Connor, because as a referral agency, all it can do is identify people who may be in need of this information and then a lawyer can obtain that information from the referral service, but the referral service is bound by the same rules as the lawyer is, and that's why Went For It, Inc. is a plaintiff also in the case.
Sandra Day O'Connor: Yes, but I... it gets information about accidents and then--
Bruce S. Rogow: Shares them with lawyers.
Sandra Day O'Connor: --shares that with lawyers who send letters to these victims.
Bruce S. Rogow: Yes, Justice O'Connor, letters that are highly regulated by the bar that must include a statement of the lawyer's qualifications that are at the same moment--
Sandra Day O'Connor: And what does it do? It looks at police reports or something?
Bruce S. Rogow: --Police reports, accident reports, which are matters of public record.
Sandra Day O'Connor: And presumably it also runs ads, does it?
Bruce S. Rogow: It does not. It does not, no.
Sandra Day O'Connor: Do the lawyers run some ads, do you--
Bruce S. Rogow: Well, some lawyers may run advertisements of different sorts, but whether or not they run an advertisement of their availability is different from running an advertisement saying, I am in the referral business.
Sandra Day O'Connor: --The service Went For It provides is finding names of victims and furnishing them to lawyers who pay them for that information--
Bruce S. Rogow: Yes, Justice O'Connor.
Sandra Day O'Connor: --is that it?
Bruce S. Rogow: Yes. The commercial speech cases that we rely upon, Bates--
Ruth Bader Ginsburg: Mr. Rogow, maybe you could just go back and amplify your statement that these letters are highly regulated. Now, there isn't a form letter that the bar association gives out.
Bruce S. Rogow: --Well, actually, there is, Justice Ginsburg, although it's not in this record. The bar has recently promulgated a handbook for lawyer advertising which contains forms of suggested different kinds of communications that would meet bar standards, but no, the regulation that is before the Court sets out 15 or 16, and they were summarized by the court of appeals, regulations upon the letters.
Ruth Bader Ginsburg: Could... does the bar, or could it, consistent with the First Amendment, require pre-screening of letters, solicitation letters that are going to be sent out within the first 30 days, or ever?
Bruce S. Rogow: I don't think the bar could... could require pre-screening, and one of the problems is, is that this delay in the access to information is inconsistent with the notion that it is important for people to have information quickly, and I think that the bar agrees, and has stated in its brief, that it is important to communicate to people the availability of legal services. But there is no pre-screening, but there is a contemporary submission.
Ruth Bader Ginsburg: Not letter-by-letter, but the attorney's own form letter.
Bruce S. Rogow: I... perhaps the bar could request these letters and look at them. There is a contemporary filing of each letter with the Florida Bar Advertising Commission, I think it is, so a lawyer is obligated to also send a copy of the letter after it's been out, and so the bar would have an opportunity to review these letters, but it would not be prior to the submission of these letters, to the depositing of them in the mailbox. We rely upon the commercial speech cases which form the underpinnings of the decision below and have been consistent. There is no reason to retreat, and the bar has really offered no principled reason to retreat from the line of cases, beginning with Virginia Board of Pharmacy, running through Central Hudson, Bates, Zauderer, RMJ, which are on the foundation that I have said, that truthful, nonmisleading information conveyed in a mode, and the mode the Court described in Shapero, the most unobtrusive mode of communication, conveyed in a mode which the bar has now even taken a step beyond and regulated and required that they be stamped with "Advertisement", that these are threatening to any substantial State interest. Basically, the bar's argument is, is that that line of cases from Central Hudson through Ibanez should be discarded, or at least discarded as to lawyers, and that Bates, RMJ, and Zauderer were wrongly decided, and that really is the essence of what the bar is saying, and its other suggestions... the measure of an argument oftentimes is how far one must stretch to make it, and when the bar likens these lawyers' letters to sound trucks and residential picketers, trying to draw strength from residential privacy, from those kinds of analogies, I think that demonstrates how far the bar must reach to try to get around what the established jurisprudence is. And when the bar says lawyers are like prisoners and military personnel and schoolchildren and the institutional speech cases should somehow or other be applied to lawyers, I think that, too, demonstrates how difficult the bar's case is, but it is--
William H. Rehnquist: What do you refer to as the institutional speech cases, Mr. Rogow?
Bruce S. Rogow: --Pardon me, Mr. Chief Justice?
William H. Rehnquist: You referred to the institutional speech cases. What cases are those? I'm not sure I know exactly what you mean.
Bruce S. Rogow: Kuhlmeier, Hazelwood v. School District, whether or not schoolchildren can publish things, Goldman, the yarmulke case in the military, situations in which there is custody and control in employment and property interests at stake of the Government. I think those analogies just reach too far. The bottom line in this case is whether truthful, nonmisleading, carefully tailored information regulated by the bar harms any substantial State interest. The answer--
Sandra Day O'Connor: Do you think there's room for any more regulation under the commercial speech doctrine for people who are licensed by the State to carry out their duties? It isn't as though a lawyer is a totally free agent. The lawyer, presumably in Florida as in most States, must be licensed by the State, and the State thereby gains more control over that person than over somebody who goes into the business of selling shoes, for example.
Bruce S. Rogow: --It is true, Justice O'Connor, and they are more highly regulated, and yet that regulation must be delicate, because the lawyer's work informing people of their rights, remedying wrongs, redressing grievances, may be more important than selling shoes, and so it needs to be able to be communicated if it's truthful and nonmisleading, and that's exactly what this case is about. There is no issue in this case about anything being untruthful or anything being misleading. This information is important. It needs to be protected. The court of appeals decision should be affirmed.
William H. Rehnquist: Thank you, Mr. Richard. The case is submitted.
Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.