SILVIA S. IBANEZ v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY

Legal Principle at Issue

Whether the government may constitutionally prohibit an attorney from including in her advertising truthful references to the facts that she is a certified public accountant and a certified financial planner.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

Silvia Ibanez, an attorney, included "CPA" and "CFP" designations after her listing in the yellow pages. Those designations were truthful. The Florida Board of Accountancy, however, believed the designations were misleading and reprimanded her for deceptive conduct. Despite the fact that the Board was unable to point to any person who claimed to have been misled, the Board's decision was affirmed by the Florida District Court of Appeal.

In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the U.S. Supreme Court for the first time recognized that commercial speech speech that concerns only commercial or economic activity is entitled to some First Amendment protection. The government therefore may regulate commercial speech only if it is false or misleading or if the restriction directly and narrowly advances a substantial state interest. Central Hudson Gas & Elec. v. Public Serv. Comm. of N.Y., 447 U.S. 557 (1978)

Importance of Case

The Court reaffirmed the First Amendment rights of professionals to engage in truthful advertising that is not deceptive. The Court also emphasized that it would not be persuaded by regulators' unsupported claims that such advertising might create the "possibility of deception." Under the Court's commercial speech doctrine, the government may regulate commercial speech only if it is false and misleading or if the restriction directly and narrowly advances a substantial state interest. The Court found that the Board's action was not supported by the evidence and held that the CPA and CFP designations were not misleading. The dissent believed that the CFP designation was misleading because the advertisement did not provide any information that would allow the consumer to verify the value or use of the designation.