Legal Principle at Issue
Whether the government may constitutionally prohibit a certified public accountant from directly and personally soliciting non-clients.
Affirmed (includes modified). Petitioning party did not receive a favorable disposition.
Scott Fane, a certified public accountant, built a successful solo practice in New Jersey by making unsolicited telephone calls to business executives and then arranging meetings to explain his expertise and services. Fane then moved to Florida, where he learned that such calls were prohibited by the Florida Board of Accountancy. Fane challenged this prohibition on First Amendment grounds, and the district court held that the rule was invalid as it applied to solicitations of business clients. The Court of Appeals for the Eleventh Circuit affirmed.
In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the U.S. Supreme Court for the first time recognized that commercial speech speech that concerns only commercial or economic activity is entitled to some First Amendment protection. The government therefore may regulate commercial speech only if it is false or misleading or if the restriction directly and narrowly advances a substantial state interest. Central Hudson Gas & Elec. v. Public Serv. Comm. of N.Y., 447 U.S. 557 (1978).
Importance of Case
In applying the Central Hudson test, the Court found that the interests offered by the Board in support of the ban to prevent fraud, to protect privacy, and to maintain the independence of accountants were substantial. The Court, however, noted that the Board had not produced any evidence that the ban furthered these interests. Without such evidence, the Court held that the Board could not satisfy its burden under Central Hudson.
The Court reaffirmed the First Amendment rights of professionals to engage in truthful advertising that is not deceptive. While the Court went to great pains to distinguish its decision from that in Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), in which the Court upheld a ban on in-person solicitation by lawyers, the dissent recognized that the distinctions between the two cases were primarily semantic.