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Case: 09-30925 Document: 00511366200 Page: 6 Date Filed: 01/31/2011

values, . . . allowing modes of regulation that might be impermissible in the
realm of noncommercial expression.” Ohralik v. Ohio State Bar Assoc., 436 U.S.

447, 456 (1978). The Court specifically applied First Amendment protections to

attorney advertising in Bates v. State Bar of Arizona, “holding that advertising

by attorneys may not be subjected to blanket suppression . . . [but] not . . . that

advertising by attorneys may not be regulated in any way.” 433 U.S. 350, 383

(1977). It encouraged the bar to “assur[e] that advertising by attorneys flows

both freely and cleanly.” Id. at 384.

The Court later clarified that different types of commercial speech merit

different levels of protection. Advertising that “is inherently likely to deceive or

where the record indicates that a particular form or method . . . of advertising

has in fact been deceptive” receives no protection and the State may prohibit it
entirely. In re R.M.J., 455 U.S. 191, 202 (1982). Advertising that is potentially

misleading¯because it “may be presented in a way that is not deceptive”¯may

be regulated if it satisfies one of two standards. See id. at 203; see also Zauderer

v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985).

A regulation that restricts potentially misleading commercial speech will pass

constitutional muster if “the regulation directly advances a substantial

government interest” and “is not more extensive than is necessary to serve that

interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557,

566 (1980). A regulation that imposes a disclosure obligation on a potentially

misleading form of advertising will survive First Amendment review if the

required disclosure is “reasonably related to the State’s interest in preventing
deception of consumers.” Zauderer, 471 U.S. at 651.

LADB, as “the party seeking to uphold a restriction on commercial

speech[,] carries the burden of justifying it.” Bolger v. Youngs Drug Prods. Corp.,

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