Edenfield v. Fane, 507 U.S. 761, 2 (1993)

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762

EDENFIELD v. FANE

Syllabus

ing against conflicts of interest—are substantial. However, the Board has failed to demonstrate that the ban advances those interests in any direct and material way. A governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. Here, the Board's suppositions about the dangers of personal solicitation by CPA's in the business context are not validated by studies, anecdotal evidence, or Fane's own conduct; and its claims are contradicted by a report of the American Institute of Certified Public Accountants and other literature. Nor can the ban be justified as a reasonable time, place, or manner restriction on speech. Even assuming that a flat ban on commercial solicitation could be regarded as such a restriction, the ban still must serve a substantial state interest in a direct and material way. Pp. 767-773. (c) The ban cannot be justified as a prophylactic rule because the circumstances of CPA solicitation in the business context are not "inherently conducive to overreaching and other forms of misconduct." Ohralik, supra, at 464. Unlike a lawyer, who is trained in the art of persuasion, a CPA is trained in a way that emphasizes independence and objectivity rather than advocacy. Moreover, while a lawyer may be soliciting an unsophisticated, injured, or distressed lay person, a CPA's typical prospective client is a sophisticated and experienced business executive who has an existing professional relation with a CPA, who selects the time and place for their meeting, and for whom there is no expectation or pressure to retain the CPA on the spot. In addition, Ohralik in no way relieves a State of the obligation to demonstrate that its restrictions on speech address a serious problem and contribute in a material way to solving that problem. Pp. 773-777.

945 F. 2d 1514, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, Souter, and Thomas, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 777. O'Connor, J., filed a dissenting opinion, post, p. 778.

Parker D. Thomson, Special Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs were Robert A. Butterworth, Attorney General, John J. Rimes III, Assistant Attorney General, and Carol A. Licko, Special Assistant Attorney General.

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