507 U.S. 761 (1993)
Scott Fane is a certified public accountant licensed to practice in Florida by the Florida Board of Accountancy.1 Before moving to Florida in 1985, Fane maintained his own accounting practice in New Jersey, where he specialized in providing tax advice to small and medium-sized businesses and obtained clients through unsolicited telephone calls to executives.2 Upon relocating to Florida, Fane sought to establish a similar solo practice but encountered the Board's comprehensive rule barring CPAs from direct, in-person, uninvited solicitation of engagements from non-clients.3
The Board's rule states that a CPA shall not by any direct, in-person, uninvited solicitation solicit an engagement to perform public accounting services for a person or entity not already a client, unless invited.4 Fane submitted that the prohibition created a serious obstacle because most businesses rely on their existing accountants, and persuading them to change requires personal contact to discuss needs, expertise, services, and fees.5 Fane alleged in his complaint that but for the rule he would seek clients through personal solicitation and offer fees below prevailing rates.6
Fane filed suit against the Board in the United States District Court for the Northern District of Florida, seeking declaratory and injunctive relief.7 In response, the Board presented an affidavit from former chairman Louis Dooner asserting that the ban was necessary to preserve CPA independence in performing the attest function and to prevent overreaching.8 The District Court granted summary judgment to Fane and enjoined enforcement of the rule as applied to CPAs seeking clients through in-person, direct, uninvited solicitation in the business context.9
A divided panel of the United States Court of Appeals for the Eleventh Circuit affirmed the District Court's judgment.10 The Supreme Court granted certiorari to review the case.11
Whether Florida's prohibition on direct, in-person, uninvited solicitation by certified public accountants is inconsistent with the free speech guarantees of the First and Fourteenth Amendments as applied to the solicitation of business clients?12
Laws restricting commercial speech need only be tailored in a reasonable manner to serve a substantial state interest. Under the Central Hudson test, a restriction survives First Amendment scrutiny only if the state's interests are substantial, the regulation advances those interests in a direct and material way, and the extent of the restriction on protected speech is in reasonable proportion to the interests served.13
Yes. The Board's asserted interests in protecting consumers from fraud or overreaching and in maintaining the fact and appearance of CPA independence are substantial.14 The Board failed to demonstrate that its blanket ban advances those interests in any direct and material way.15 The record contains no studies, anecdotal evidence from Florida or other states, or other proof that personal solicitation by CPAs creates dangers of fraud, overreaching, or compromised independence.16
The typical business clients Fane seeks to solicit are sophisticated executives who meet the CPA at a time of their choosing rather than vulnerable accident victims.17
Florida's prohibition on direct, in-person, uninvited solicitation by certified public accountants is inconsistent with the free speech guarantees of the First and Fourteenth Amendments as applied to the solicitation of business clients.18
Related opinions on this issue
Justice Blackmun joins the Court’s opinion.19 He disengages himself from any part thereof, or inference therefrom, that commercial speech that is free from fraud or duress or the advocacy of unlawful activity is entitled to only an “intermediate standard” of protection under the First Amendment’s proscription of any law abridging the freedom of speech.20
Justice O'Connor continues to believe that the Court took a wrong turn with Bates v. State Bar of Arizona.21 She maintains that States have broader authority to prohibit commercial speech inconsistent with membership in a learned profession.22 Even assuming the focus is on direct harm to the listener, she would still dissent because the result cannot be squared with Ohralik.23
There is no constitutional difference between a rule prohibiting in-person solicitation by attorneys and by certified public accountants.24 The majority improperly treats the case as an as-applied challenge to a valid law.25