Justice Kennedy, delivered the opinion of the Court.
In previous cases we have considered the constitutionality of state laws prohibiting lawyers from engaging in direct, personal solicitation of prospective clients. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978). In the case now before us, we consider a solicitation ban applicable to certified public accountants (CPA's) enacted by the State of Florida. We hold that, as applied to CPA solicitation in the business context, Florida's prohibition is inconsistent with the free speech guarantees of the First and Fourteenth Amendments.
Respondent Scott Fane is a CPA licensed to practice in the State of Florida by the Florida Board of Accountancy (Board). Before moving to Florida in 1985, Fane had his own accounting CPA practice in New Jersey, specializing in providing tax advice to small and medium-sized businesses. He often obtained business clients by making unsolicited telephone calls to their executives and arranging meetings to explain his services and expertise. This direct, personal, uninvited solicitation was permitted under New Jersey law.
When he moved to Florida, Fane wished to build a practice similar to his solo practice in New Jersey but was unable to do so because the Board of Accountancy had a comprehensive rule prohibiting CPA's from engaging in the direct, personal
The rule, according to Fane's uncontradicted submissions, presented a serious obstacle, because most businesses are willing to rely for advice on the accountants or CPA's already serving them. In Fane's experience, persuading a business to sever its existing accounting relations or alter them to include a new CPA on particular assignments requires the new CPA to contact the business and explain the advantages of a change. This entails a detailed discussion of the client's needs and the CPA's expertise, services and fees. See Affidavit of Scott Fane ¶¶ 7, 11, App. 11, 15.
Fane sued the Board in the United States District Court for the Northern District of Florida, seeking declaratory and injunctive relief on the ground that the Board's antisolicitation rule violated the First and Fourteenth Amendments. Fane alleged that but for the prohibition he would seek clients through personal solicitation and would offer fees below prevailing rates. Complaint ¶¶ 9-11, App. 3-4.
In response to Fane's submissions, the Board relied on the affidavit of Louis Dooner, one of its former chairmen. Dooner concluded that the solicitation ban was necessary to preserve the independence of CPA's performing the attest function, which involves the rendering of opinions on a firm's financial statements. His premise was that a CPA who solicits
The District Court gave summary judgment to Fane and enjoined enforcement of the rule "as it is applied to CPA's who seek clients through in-person, direct, uninvited solicitation in the business context." Civ. Case No. 88-40264—MNP (ND Fla., Sept. 13, 1990), App. 88. A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. 945 F.2d 1514 (1991).
We granted certiorari, 504 U.S. 940 (1992), and now affirm.
In soliciting potential clients, Fane seeks to communicate no more than truthful, nondeceptive information proposing a lawful commercial transaction. We need not parse Fane's proposed communications to see if some parts are entitled to greater protection than the solicitation itself. This case comes to us testing the solicitation, nothing more. That is what the State prohibits and Fane proposes.
Whatever ambiguities may exist at the margins of the category of commercial speech, see, e. g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 384-388 (1973), it is clear that this type of personal solicitation is commercial expression to which the protections of the First Amendment apply. E. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). While we did uphold a ban on in-person solicitation by lawyers in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), that opinion did not hold that all personal solicitation is without First Amendment protection. See id., at 457. There are, no doubt, detrimental aspects to personal commercial solicitation in certain circumstances,
In the commercial context, solicitation may have considerable value. Unlike many other forms of commercial expression, solicitation allows direct and spontaneous communication between buyer and seller. A seller has a strong financial incentive to educate the market and stimulate demand for his product or service, so solicitation produces more personal interchange between buyer and seller than would occur if only buyers were permitted to initiate contact. Personal interchange enables a potential buyer to meet and evaluate the person offering the product or service and allows both parties to discuss and negotiate the desired form for the transaction or professional relation. Solicitation also enables the seller to direct his proposals toward those consumers who he has a reason to believe would be most interested in what he has to sell. For the buyer, it provides an opportunity to explore in detail the way in which a particular product or service compares to its alternatives in the market. In particular, with respect to nonstandard products like the professional services offered by CPA's, these benefits are significant.
In denying CPA's and their clients these advantages, Florida's law threatens societal interests in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard. See Virginia State Bd. of Pharmacy, supra, at 762-765; Bates v. State Bar of Arizona, 433 U.S. 350, 377-378 (1977); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N. Y., 447 U.S. 557, 561-562 (1980).
Commercial speech, however, is "linked inextricably" with the commercial arrangement that it proposes, Friedman v. Rogers, 440 U.S. 1, 10, n. 9 (1979), so the State's interest in regulating the underlying transaction may give it a concomitant interest in the expression itself. See Ohralik, supra, at 457. For this reason, laws restricting commercial speech, unlike laws burdening other forms of protected expression, need only be tailored in a reasonable manner to serve a substantial state interest in order to survive First Amendment scrutiny. Board of Trustees of State University of N. Y. v. Fox, 492 U.S. 469, 480 (1989); Central Hudson Gas & Electric Corp., 447 U. S., at 564. Even under this intermediate standard of review, however, Florida's blanket ban on direct, in-person, uninvited solicitation by CPA's cannot be sustained as applied to Fane's proposed speech.
To determine whether personal solicitation by CPA's may be proscribed under the test set forth in Central Hudson we must ask whether the State's interests in proscribing it are substantial, whether the challenged regulation advances these interests in a direct and material way, and whether the extent of the restriction on protected speech is in reasonable proportion to the interests served. See ibid. Though we conclude that the Board's asserted interests are substantial, the Board has failed to demonstrate that its solicitation ban advances those interests.
In undertaking the first inquiry, we must identify with care the interests the State itself asserts. Unlike rationalbasis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions. See Fox, supra, at 480. Neither will we turn away if it appears that the stated interests are not the actual interests served by the restriction. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982).
To justify its ban on personal solicitation by CPA's, the Board proffers two interests. First, the Board asserts an interest in protecting consumers from fraud or overreaching by CPA's. Second, the Board claims that its ban is necessary to maintain both the fact and appearance of CPA independence in auditing a business and attesting to its financial statements.
The State's first interest encompasses two distinct purposes: to prevent fraud and other forms of deception, and to protect privacy. As to the first purpose, we have said that "[t]he First Amendment . . . does not prohibit the State from insuring that the stream of commercial information flow[s] cleanly as well as freely," Virginia State Bd. of Pharmacy, 425 U. S., at 771-772, and our cases make clear that the State may ban commercial expression that is fraudulent or deceptive without further justification, see, e. g., Central Hudson Gas & Electric Corp., supra, at 563-564; In re R. M. J., 455 U.S. 191, 203 (1982); Metromedia, Inc. v. San Diego, 453 U.S. 490, 507 (1981) (plurality opinion). Indeed, 25 States and the District of Columbia take various forms of this approach, forbidding solicitation by CPA's only under circumstances that would render it fraudulent, deceptive, or coercive. See, e. g., Code of Colo. Regs. § 7.12 (1991); N. D. Admin. Code § 3-04-06-02 (1991); N. H. Code Admin. Rules § 507.02(c) (1990); D. C. Mun. Reg., Tit. 17, § 2513.4 (1990). But where, as with the blanket ban involved here, truthful
Likewise, the protection of potential clients' privacy is a substantial state interest. Even solicitation that is neither fraudulent nor deceptive may be pressed with such frequency or vehemence as to intimidate, vex, or harass the recipient. In Ohralik, we made explicit that "protection of the public from these aspects of solicitation is a legitimate and important state interest." 436 U. S., at 462.
The Board's second justification for its ban—the need to maintain the fact and appearance of CPA independence and to guard against conflicts of interest—is related to the audit and attest functions of a CPA. In the course of rendering these professional services, a CPA reviews financial statements and attests that they have been prepared in accordance with generally accepted accounting principles and present a fair and accurate picture of the firm's financial condition. See generally R. Gormley, Law of Accountants and Auditors ¶ 1.07 (1981); 1 American Institute of Certified Public Accountants, Professional Standards AU § 110.01 (1991) (hereinafter AICPA Professional Standards). In the Board's view, solicitation compromises the independence necessary to perform the audit and attest functions, because a CPA who needs business enough to solicit clients will be prone to ethical lapses. The Board claims that even if actual misconduct does not occur, the public perception of CPA independence
We have given consistent recognition to the State's important interests in maintaining standards of ethical conduct in the licensed professions. See, e. g., Ohralik, supra, at 460; Virginia State Bd. of Pharmacy, supra, at 766; National Soc. of Professional Engineers v. United States, 435 U.S. 679, 696 (1978). With regard to CPA's, we have observed that they must "maintain total independence" and act with "complete fidelity to the public trust" when serving as independent auditors. United States v. Arthur Young & Co., 465 U.S. 805, 818 (1984). Although the State's interest in obscuring the commercial nature of public accounting practice is open to doubt, see Bates v. Arizona State Bar Assn., 433 U. S., at 369-371, the Board's asserted interest in maintaining CPA independence and ensuring against conflicts of interest is not. We acknowledge that this interest is substantial. See Ohralik, supra, at 460-461.
That the Board's asserted interests are substantial in the abstract does not mean, however, that its blanket prohibition on solicitation serves them. The penultimate prong of the Central Hudson test requires that a regulation impinging upon commercial expression "directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson Gas & Electric Corp., 447 U. S., at 564. We agree with the Court of Appeals that the Board's ban on CPA solicitation as applied to the solicitation of business clients fails to satisfy this requirement.
It is well established that "[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, n. 20 (1983); Fox, 492 U. S., at 480. This burden is not satisfied by mere speculation or conjecture; rather, a governmental
The Board has not demonstrated that, as applied in the business context, the ban on CPA solicitation advances its asserted interests in any direct and material way. It presents no studies that suggest personal solicitation of prospective business clients by CPA's creates the dangers of fraud, overreaching, or compromised independence that the Board claims to fear. The record does not disclose any anecdotal evidence, either from Florida or another State, that validates the Board's suppositions. This is so even though 21 States place no specific restrictions of any kind on solicitation by CPA's, and only 3 States besides Florida have enacted a categorical ban. See 3 La. Admin. Code 46:XIX.507(D)(1)(c) (Supp. 1988); Minn. Admin. Code § 1100.6100 (1991); 22 Tex. Admin. Code § 501.44 (Supp. 1992). Not even Fane's own conduct suggests that the Board's concerns are justified. Cf. Ohralik, supra, at 467-468. The only suggestion that a ban on solicitation might help prevent fraud and overreaching or preserve CPA independence is the affidavit of Louis Dooner, which contains nothing more than a series of conclusory statements that add little if anything to the Board's original statement of its justifications.
The Board directs the Court's attention to a report on CPA solicitation prepared by the American Institute of Certified Public Accountants in 1981. See AICPA, Report of the Special
Other evidence concerning personal solicitation by CPA's also belies the Board's concerns. In contrast to the Board's anxiety over uninvited solicitation, the literature on the accounting profession suggests that the main dangers of compromised independence occur when a CPA firm is too dependent upon, or involved with, a longstanding client. See, e. g., P. Cottell & T. Perlin, Accounting Ethics 39-40 (1990); G. Previts, The Scope of CPA Services: A Study of the Development of the Concept of Independence and the Profession's Role in Society 142 (1985); S. Rep. No. 95-34, pp. 50-52 (1977); General Accounting Office, CPA Audit Quality: Status of Actions Taken to Improve Auditing and Financial Reporting of Public Companies 36 (Mar. 1989) (GAO/AFMD-89-38). It appears from the literature that a business executive who wishes to obtain a favorable but unjustified audit opinion
For similar reasons, we reject the Board's alternative argument that the solicitation ban is a reasonable restriction on the manner in which CPA's may communicate with prospective clients, rather than a direct regulation of the commercial speech itself. Assuming that a flat ban on commercial solicitation could be regarded as a content-neutral time, place, or manner restriction on speech, a proposition that is open to serious doubt, see, e. g., Virginia State Bd. of Pharmacy, 425 U. S., at 771, a challenged restriction of that type still must serve a substantial state interest in "a direct and effective way," Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989). The State has identified certain interests in regulating solicitation in the accounting profession that are important and within its legitimate power, but the prohibitions here do not serve these purposes in a direct and material manner. Where a restriction on speech lacks this close and substantial relation to the governmental interests asserted, it cannot be, by definition, a reasonable time, place, or manner restriction.
Relying on Ohralik, the Board seeks to justify its solicitation ban as a prophylactic rule. It acknowledges that Fane's solicitations may not involve any misconduct but argues that all personal solicitation by CPA's must be banned, because this contact most often occurs in private offices and is difficult to regulate or monitor.
Ohralik was a challenge to the application of Ohio's ban on attorney solicitation and held only that a State Bar "constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent." Ohralik, 436 U. S., at 449. While Ohralik discusses the generic hazards of personal solicitation, see id., at 464-466, the opinion made clear that a preventative rule was justified only in situations "inherently conducive to overreaching and other forms of misconduct." Id., at 464; cf. In re R. M. J., 455 U. S., at 203 (advertising may be banned outright only if it is actually or inherently misleading). The Court in Ohralik explained why the case before it met this standard:
The solicitation here poses none of the same dangers. Unlike a lawyer, a CPA is not "a professional trained in the art of persuasion." A CPA's training emphasizes independence and objectivity, not advocacy. See 1 AICPA Professional Standards AU § 220; 2 id., ET § 55; H. Magill & G. Previts, CPA Professional Responsibilities: An Introduction 105-108 (1991). The typical client of a CPA is far less susceptible to manipulation than the young accident victim in Ohralik. Fane's prospective clients are sophisticated and experienced business executives who understand well the services that a CPA offers. See Affidavit of Scott Fane ¶¶ 5-7, 10(A), App. 10-11, 13. In general, the prospective client has an existing professional relation with an accountant and so has an independent basis for evaluating the claims of a new CPA seeking professional work. Id., ¶ 6, App. 10-11.
The manner in which a CPA like Fane solicits business is conducive to rational and considered decisionmaking by the prospective client, in sharp contrast to the "uninformed acquiescence" to which the accident victims in Ohralik were prone. Ohralik, supra, at 465. While the clients in Ohralik were approached at a moment of high stress and
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").
The judgment of the Court of Appeals is
Justice Blackmun, concurring.
I join the Court's opinion, just as I joined Justice Stevens' recent opinion for the Court in Cincinnati v. Discovery Network, Inc., ante, p. 410, with the observation that I again disengage myself 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," see ante, at 767, of protection
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 unprofessional 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.
Although Ohralik preceded Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N. Y., 447 U.S. 557 (1980), this Court has understood Ohralik to mean that a rule prohibiting in-person solicitation by attorneys would satisfy the Central Hudson test. See Shapero, supra, at 472. Such a rule would "directly advanc[e] the governmental interest [and would not be] more extensive than is necessary to serve that interest." Central Hudson, supra, at 566. A substantial fraction of in-person solicitations are inherently conducive to overreaching or otherwise harmful speech, and these potentially harmful solicitations cannot be singled out in advance (or so a reasonable legislator could believe).
I see no constitutional difference between a rule prohibiting in-person solicitation by attorneys, and a rule prohibiting in-person solicitation by certified public accountants (CPA's). The attorney's rhetorical power derives not only from his specific training in the art of persuasion, see ante, at 774-775, but more generally from his professional expertise. His certified status as an expert in a complex subject matter— the law—empowers the attorney to overawe inexpert clients. CPA's have an analogous power. The drafters of Fla. Admin. Code § 21A-24.002(2)(c) (1992) reasonably could
Indeed, the majority scrupulously declines to question the validity of Florida's rule. The majority never analyzes the rule itself under Central Hudson, cf. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340— 344 (1986) (analyzing "facial" validity of law regulating commercial speech by employing Central Hudson test), but instead seeks to avoid this analysis by characterizing Fane's suit as an "as-applied" challenge. See ante, at 763, 767, 770, 771, 774. I am surprised that the majority has taken this approach without explaining or even articulating the underlying assumption: that a commercial speaker can claim First Amendment protection for particular instances of prohibited commercial speech, even where the prohibitory law satisfies Central Hudson. Board of Trustees of State University of N. Y. v. Fox, 492 U.S. 469 (1989), appears to say the opposite, see id., at 476-486, and we recently granted certiorari in a case that poses precisely this issue, see United States v. Edge Broadcasting Co., 506 U.S. 1032 (1992).
In any event, the instant case is not an "as-applied" challenge, in the sense that a speaker points to special features of his own speech as constitutionally protected from a valid law. Cf. Zauderer, supra, at 644. The majority obscures this point by stating that Florida's rule "cannot be sustained as applied to Fane's proposed speech," ante, at 767, and by paraphrasing Fane's affidavit at length to show that he does not propose to solicit vulnerable clients, ante, at 775-776. But I do not understand the relevance of that affidavit here, because the broad remedy granted by the District Court goes well beyond Fane's own speech.
Even if the majority is correct that a law satisfying Central Hudson cannot be applied to harmless commercial speech, and that Fane's proposed speech will indeed be harmless, these two premises do not justify an injunction against the enforcement of the anti solicitation rule to all CPA's.
The majority also relies on the fact that petitioners were enjoined only from enforcing the rule in the "business context." See ante, at 763, 771. Yet this narrowing of focus, without more, does not salvage the District Court's remedy. I fail to see why § 21A-24.002(2)(c) should be valid overall, but not "in the business context." Small businesses constitute the vast majority of business establishments in the United States, see U. S. Dept. of Commerce, Statistical Abstract of the United States 526 (1992). The drafters of Florida's rule reasonably could have believed that the average small businessman is no more sophisticated than the average individual who is wealthy enough to hire a CPA for his personal affairs.
In short, I do not see how the result reached by the majority is consistent with the validity of § 21A-24.002(2)(c). In failing to state otherwise, the majority implies that the rule itself satisfies Central Hudson, and I agree, but on that precise grounds I would reverse the judgment of the Court of Appeals.
Kenneth R. Hart filed a brief for the Florida Institute of Certified Public Accountants as amicus curiae.