Oring v. State Bar of Cal.

PETITIONER: Oring
RESPONDENT: State Bar of Cal.
LOCATION: Highway 395, Inyo County, California

DOCKET NO.: 87-1224
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Supreme Court of California

CITATION: 488 US 590 (1989)
ARGUED: Jan 10, 1989
DECIDED: Jan 23, 1989

ADVOCATES:
Diane C. Yu - on behalf of the Respondent
Theodore A. Cohen - on behalf of the Petitioner

Facts of the case

Question

Media for Oring v. State Bar of Cal.

Audio Transcription for Oral Argument - January 10, 1989 in Oring v. State Bar of Cal.

William H. Rehnquist:

We'll hear argument next in No. 87-1224, Mark Oring versus The State Bar of California.

Mr. Cohen, you may proceed whenever you're ready.

Theodore A. Cohen:

Mr. Chief Justice and may it please the Court:

Mark Oring, a lawyer, was disciplined by the State Bar of California for presenting a testimonial radio communication which was never found to be false, misleading, or deceptive.

In fact, the State Bar of California stipulated that the advertisement was true.

The basis for the discipline was a presumption that testimonial advertisement is presumed to be false, misleading, or deceptive.

Under this Court's prior decisions, such a presumption placing the burden on the speaker to prove the protected nature of the speech, thus effectively banning any testimonial advertisement, is unconstitutional.

The constitutional ground rules governing this area we believe to be crystal clear.

Again last term in Shapero versus Kentucky Bar, this Court reiterated the well-established standard that state rules designed to prevent the potential for deception and confusion may be no broader than reasonably necessary to prevent the perceived evil.

We feel that the State Bar itself has recognized that its legitimate goal of preventing deceptive advertising can in fact be met by a less stringent and restrictive rule.

To bring the case up to date, in November, or on November 28th of 1988, the California Supreme Court adopted the State Bar's proposed rule, which we have set forth in our briefs and in our appendix.

So the California Supreme Court has now formally adopted the State Bar's proposed rule which removes that presumption so long as the advertisement or testimonial advertisement contains a disclaimer which states that it is not a guarantee or prediction regarding the outcome of the potential client's case.

In your view, is that a constitutional rule?

Does that comport with the First Amendment?

Theodore A. Cohen:

Well, I would say that I think that it at least meets the objections or, not objections rather, but at least meets the standards that I think this Court suggested in Bates and in R.M.J.--

Well so, in your view, for purposes of our argument we can assume that that is a constitutional requirement?

Theodore A. Cohen:

I don't say at this point that I think even requiring a disclaimer would be constitutional because I don't know that testimonial advertisements should be treated any differently than advertisements in general.

Apparently the Federal Trade Commission doesn't feel that they have to be treated any differently, and they feel sufficiently secure that they can test each ad on its own merits.

You don't think the disclaimer ads to the truth of the statement?

Theodore A. Cohen:

I don't.

As a matter of fact, there has been a law review article, I believe in the Buffalo Law Review... I hope we've set it forth in our brief... by Professor Devine indicating that disclaimers may tend to be more confusing.

Why wouldn't it add to the truth of the statement?

I mean, it's surely true that if you had somebody saying, this was one pleased client, of course this doesn't necessarily mean that you'll be pleased or that all clients are always pleased, that ads to the truth of it, doesn't it?

I should think your argument is that you have no right to require somebody to add to the truth.

Isn't that your basic argument, that you can't require somebody to put in something he doesn't want to say?

Theodore A. Cohen:

Yes.

That the First Amendment prevents making somebody say something, as well as preventing somebody from saying something?

Theodore A. Cohen:

That is correct, Your Honor, Justice.

Mr. Cohen, I hope before you're through you will tell us why you haven't stipulated your case away.

Theodore A. Cohen:

Yes, if I may address that, Your Honor.