776
Opinion of the Court
vulnerability, the clients Fane wishes to solicit meet him in their own offices at a time of their choosing. If they are unreceptive to his initial telephone solicitation, they need only terminate the call. Invasion of privacy is not a signifi-cant concern.
If a prospective client does decide to meet with Fane, there is no expectation or pressure to retain Fane on the spot; instead, he or she most often exercises caution, checking references and deliberating before deciding to hire a new CPA. See Affidavit of Scott Fane ¶ 10(C), App. 13-14. Because a CPA has access to a business firm's most sensitive financial records and internal documents, retaining a new accountant is not a casual decision. Ibid. The engagements Fane seeks are also long term in nature; to the extent he engages in unpleasant, high pressure sales tactics, he can impair rather than improve his chances of obtaining an engagement or establishing a satisfactory professional relation. The importance of repeat business and referrals gives the CPA a strong incentive to act in a responsible and decorous manner when soliciting business. In contrast with Ohralik, it cannot be said that under these circumstances, personal solicitation by CPA's "more often than not will be injurious to the person solicited." Ohralik, 436 U. S., at 466.
The Board's reliance on Ohralik is misplaced for yet another reason: The Board misunderstands what Ohralik meant when it approved the use of a prophylactic rule. Id., at 464. The ban on attorney solicitation in Ohralik was prophylactic in the sense that it prohibited conduct conducive to fraud or overreaching at the outset, rather than punishing the misconduct after it occurred. But Ohralik in no way relieves the State of the obligation to demonstrate that it is regulating speech in order to address what is in fact a serious problem and that the preventative measure it proposes will contribute in a material way to solving that problem. See ibid. (describing the State's fear of harm from attorney solicitation as "well founded").
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