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Edenfield v. Fane

Supreme Court of the United States · 1993 · Constitutional Law

Constitutional LawFirst AmendmentCommercial SpeechProfessional Regulationcommercial speechCPA solicitationin-person solicitationCentral Hudson

Facts

Scott Fane, a certified public accountant licensed in Florida, had previously built a New Jersey practice by making unsolicited telephone calls to business executives and arranging meetings to explain his services. After moving to Florida, he could not use that method because Florida barred CPAs from direct, in-person, uninvited solicitation of nonclients, including uninvited visits, conversations, and phone calls requesting an immediate oral response. Fane alleged the rule prevented him from building a similar practice and that he would otherwise solicit clients and offer fees below prevailing rates. The Board defended the rule mainly through an affidavit asserting that soliciting CPAs may be more likely to bend rules, become beholden to clients, and engage in overreaching.

Issue

Whether Florida may, consistent with the First and Fourteenth Amendments, prohibit certified public accountants from engaging in truthful, nondeceptive, direct, in-person, uninvited solicitation of prospective business clients. More specifically, the question was whether the ban satisfied the Central Hudson standard as applied to CPA solicitation in the business context.

Rule

Truthful, nondeceptive personal solicitation proposing a lawful commercial transaction is protected commercial speech. Under Central Hudson, the government may restrict such speech only if it shows that the asserted state interests are substantial, that the restriction directly and materially advances those interests, and that the restriction is reasonably proportioned to the interests served; mere speculation or conjecture is insufficient, and the government must demonstrate that the harms are real and that the restriction will alleviate them to a material degree.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nevada bars licensed actuaries from making uninvited phone calls to corporate benefits managers to offer pension-audit services. Maya Chen, an actuary in Reno, wants to call human-resources directors at midsize companies and truthfully describe her rates and experience.

If Maya challenges the rule, which is the best threshold characterization of her proposed calls?

Explanation. The majority treated truthful, nondeceptive personal solicitation proposing a lawful commercial transaction as commercial speech within the First Amendment. It rejected the idea that all personal solicitation by professionals is categorically unprotected. The fact that the communication is a proposal for paid professional services makes it commercial speech, not fully protected noncommercial expression.