REHNQUIST, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

433 U.S. 350

Bates v. State Bar of Arizona

APPEAL FROM THE SUPREME COURT OF ARIZONA

MR. JUSTICE REHNQUIST, dissenting in part.

I join Part II of the Court's opinion holding that appellants' Sherman Act claim is barred by the Parker v. Brown, 317 U.S. 341 (1943), state action exemption. Largely for the reasons set forth in my dissent in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 781 (1976), however, I dissent from Part III because I cannot agree that the First Amendment is infringed by Arizona's regulation of the essentially commercial activity of advertising legal services. Valentine v. Chrestensen, 316 U.S. 52 (1942); Breard v. Alexandria, 341 U.S. 622 (1951). See Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973).

I continue to believe that the First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services. I would hold quite simply that the appellants' advertisement, however truthful or reasonable it may be, is not the sort of expression that the Amendment was adopted to protect.

I think my Brother POWELL persuasively demonstrates in his opinion that the Court's opinion offers very little guidance as to the extent or nature of permissible state regulation of professions such as law and medicine. I would join [p405] his opinion except for my belief that, once the Court took the first step down the "slippery slope" in Virginia Pharmacy Board, supra, the possibility of understandable and workable differentiations between protected speech and unprotected speech in the field of advertising largely evaporated. Once the exception of commercial speech from the protection of the First Amendment which had been established by Valentine v. Chrestensen, supra, was abandoned, the shift to case-by-case adjudication of First Amendment claims of advertisers was a predictable consequence.

While I agree with my Brother POWELL that the effect of today's opinion on the professions is both unfortunate and not required by the First and Fourteenth Amendments, I cannot join the implication in his opinion that some forms of legal advertising may be constitutionally protected. The Valentine distinction was constitutionally sound and practically workable, and I am still unwilling to take even one step down the "slippery slope" away from it.

I therefore join Parts I and II of the Court's opinion, but dissent from Part III and from the judgment.