778
O'Connor, J., dissenting
under the First Amendment's proscription of any law abridging the freedom of speech.
Justice O'Connor, dissenting.
I continue to believe that this Court took a wrong turn with Bates v. State Bar of Arizona, 433 U. S. 350 (1977), and that it has compounded this error by finding increasingly un-professional forms of attorney advertising to be protected speech. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988); Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91 (1990) (plurality opinion). These cases consistently focus on whether the challenged advertisement directly harms the listener: whether it is false or misleading, or amounts to "overreaching, invasion of privacy, [or] the exercise of undue influence," Shapero, supra, at 475. This focus is too narrow. In my view, the States have the broader authority to prohibit commercial speech that, albeit not directly harmful to the listener, is inconsistent with the speaker's membership in a learned profession and therefore damaging to the profession and society at large. See Zauderer, supra, at 676-677 (O'Connor, J., concurring in part, concurring in judgment in part, and dissenting in part); Shapero, supra, at 488-491 (O'Connor, J., dissenting); Peel, supra, at 119 (O'Connor, J., dissenting). In particular, the States may prohibit certain "forms of competition usual in the business world," Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975) (internal quotation marks omitted), on the grounds that pure profit seeking degrades the public-spirited culture of the profession and that a particular profit-seeking practice is inadequately justified in terms of consumer welfare or other social benefits. Commercialization has an incremental, indirect, yet profound effect on professional culture, as lawyers know all too well.
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