<aside> 💡 • Court held that direct personal solicitation of prospective business clients by CPAs is protected under FA.

• Court ruled that an accountant is not trained in the art of persuasion.

• Accounting clients are less subject to manipulation than the young accident victim in Ohralik.

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• So, it must be okay for accountants, since apparently the court thinks that accountants are less sleazy. Justice O’Connor questioned this distinction, but the current rule is that in-person solicitation by accountants is okay, but in-person solicitation by lawyers is not okay.22

<aside> 💡 In Edenfield v. Fane, 507 U.S. 761 (1993), the Supreme Court held that direct, personal, uninvited solicitation to obtain clients was within the First Amendment rights of certified public accountants (CPAs). The decision furthered the Court’s development of commercial speech law.

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Fane challenged Florida law for right to solicit business clients as a CPA

• A CPA moved from New Jersey (permitted direct, personal, uninvited solicitation of business clients), to Florida (prohibited direct, personal, uninvited solicitation of business clients).
• CPA says anti-solicitation rule violated the First and Fourteenth Amendments.
• Fane won in the district court and the 11th U.S. Circuit Court of Appeals.

Court said Florida law threatened First Amendment

The Supreme Court affirmed the judgment in an 8-1 vote. In the opinion for the majority,

Justice Anthony Kennedy applied the three-pronged test established in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) for determining the constitutionality of commercial speech regulations.

<aside> 💡 This test requires that:

1. The government interest be substantial,
2. The regulations advance this interest in a direct and material way, and
3. The regulations be reasonably tailored to the interest served. </aside>

He concluded that “Florida’s law threatens social interest in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard.”

Because the speech was neither deceptive nor related to illegal activity, Kennedy further concluded that although the state had a substantial interest in protecting consumers from deception and ensuring clients’ privacy, the evidence did not support the claims that the ban on in-person solicitation would satisfy those interests.

<aside> 💡 Lawyers, not accountants, are “trained in the art of persuasion” and that the audiences of lawyers may be much more “susceptible to manipulation.” Thus, Kennedy concluded that the “ends sought by the State are not advanced by the speech restriction, and legitimate commercial speech is suppressed” by the Florida law.

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The courts have long been concerned with the ability of trained persuaders to manipulate audiences, especially when the receiver may be “vulnerable to influence,” for example, because he or she is an “unsophisticated, injured, or distressed lay person.”

Notes

<aside> 💡 In Edenfield, the majority of the Court appears to have extended or denied First Amendment rights to professionals on the basis of typical rhetorical characteristics of the profession.

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