Peel v. Attorney Registration and Disciplinary Commission of Illinois/Dissent White

Justice WHITE, dissenting.

I agree with Justice MARSHALL that petitioner's letterhead is potentially misleading and with the reasons he gives for this conclusion. Thus, there are four Justices-Justice STEVENS and the three Justices joining his opinion-who believe that the First Amendment protects the letterhead as it is and that the State may not forbid its circulation. But there are five Justices who believe that this particular letterhead is unprotected: Justice O'CONNOR, THE CHIEF JUSTICE, and Justice SCALIA believe the letterhead is inherently misleading and hence would uphold Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility; at least two of us-Justice MARSHALL and myself-find it potentially misleading and would permit the State to ban such letterheads but only if they are not accompanied by disclaimers appropriate to avoid the danger. This letterhead does not carry such a disclaimer. The upshot is that while the State may not apply its flat ban to any and all claims of certification by attorneys, particularly those carrying disclaimers, the State should be allowed to apply its Rule to the letterhead in its present form and forbid its circulation. That leads me to affirm, rather than to reverse, the judgment below.

To reverse is to leave petitioner free to circulate his letterhead, not because it is protected under the First Amendment indeed, it is not-but because five Justices refuse to enforce the Rule even as applied, leaving the State powerless to act unless it drafts a narrower rule that will survive scrutiny under the First Amendment. This is nothing less than a brand of overbreadth, a doctrine that has little if any place in considering the validity of restrictions on commercial speech, which is what is involved in this case. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810 (1977). Bates "established the nonapplicability of overbreadth analysis to commercial speech." Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989); Accord, Shapero v. Kentucky Bar Assn., 486 U.S. 466, 478, 108 S.Ct. 1916, 1924, 100 L.Ed.2d 475 (1988); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 463, n. 20, 98 S.Ct. 1912, 1922, n. 20, 56 L.Ed.2d 444 (1978). This being so, the inquiry is not whether the regulation at issue here is invalid on its face, but whether it was constitutionally applied to forbid circulation of the letterhead in its present form. It is plain enough that it was so applied, for five of us hold that the letterhead is at least potentially misleading and hence must carry an appropriate disclaimer to qualify for circulation. As I see it, it is petitioner who should have to clean up his advertisement so as to eliminate its potential to mislead. Until he does, the State's Rule legally bars him from circulating the letterhead in its present form.

I would therefore affirm the judgment.