Shapero v. Kentucky Bar Assn.

486 U. S. 466

June 13, 1988

A lawyer prepared to mail targeted advertising to residents who were facing home foreclosure. The mailings urged the residents to “Call NOW,” and had other such examples of caps lock. Although the mailing was truthful, the Kentucky Bar Association ruled that the mailings were too coercive, and too motivated by the lawyer’s own pecuniary gain to stand. The lawyer charged that the state bar’s ethical rules about the mailings violated the First Amendment.

The Court ruled 6-3 that a state bar could not impose a blanket ban on truthful targeted mailings. Brennan noted that non-targeted mailings had been previously held protected by the First Amendment, and that the difference of targeting was trivial. While a decision called Ohralik had upheld rules against in-person targeted solicitation, Brennan said this was because in-person solicitation was far more coercive. The comparative ease by which a mail recipient could ignore a letter or throw it away made all the difference.

There still remained the question of whether Shapero’s specific letter went beyond the reach of First Amendment protection. Though it included some puffery, and caps lock words, Brennan concluded that the letter was still basically truthful and non-coercive. White, joined by Stevens, took exception to this declaration, and wrote that the state courts should have the final word on the issue.

O’Connor, joined by Rehnquist and Scalia, dissented. She admitted that Brennan’s ruling was a logical extension of the Court’s precedents, but she argued that the whole line of cases protecting lawyer advertising ought to be overruled. O’Connor saw some convincing reasons for restraining legal advertising. For one thing, potential clients are usually too uninformed about the law to make intelligent decisions when confronted with legal advertising. For another thing, the legal system itself was fraught with too much uncertainty and contingency to determine, in many cases, whether advertising claims were truthful.

I’m not sure if O’Connor is correct in calling for nearly all First Amendment protection to be taken away from legal advertising. But I do think that Shapero’s targeted letter is hecka’ creepy, and I would not like getting such a personalized advertisement.

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