416
Opinion of the Court
who objects to the compelled support for this speech. For these and other reasons we have set forth, the assessments are not permitted under the First Amendment.
Our conclusions are not inconsistent with the Court's decision in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), a case involving attempts by a State to prohibit certain voluntary advertising by licensed attorneys. The Court invalidated the restrictions in substantial part but did permit a rule requiring that attorneys who advertised by their own choice and who referred to contingent fees should disclose that clients might be liable for costs. Noting that substantial numbers of potential clients might be misled by omission of the explanation, the Court sustained the requirement as consistent with the State's interest in "preventing deception of consumers." Id., at 651. There is no suggestion in the case now before us that the mandatory assessments imposed to require one group of private persons to pay for speech by others are somehow necessary to make voluntary advertisements non-misleading for consumers.
The Government argues the advertising here is government speech, and so immune from the scrutiny we would otherwise apply. As the Government admits in a forthright manner, however, this argument was "not raised or addressed" in the Court of Appeals. Brief for Petitioners 32, n. 19. The Government, citing Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995), suggests that the question is embraced within the question set forth in the petition for certiorari. In Lebron, the theory presented by the petitioner in the brief on the merits was addressed by the court whose judgment was being reviewed. Id., at 379. Here, by contrast, it is undisputed that the Court of Appeals did not mention the government speech theory now put forward for our consideration.
The Government's failure to raise its argument in the Court of Appeals deprived respondent of the ability to ad-
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