e no reasons for differences in treatment. If no differences exist, the distinction would be regarded as arbitrary and would be invalidated for that reason. While there are significant differences among professional groups, the law may require that the differences be disregarded in commercial speech.
There are essentially two standards of review used when faced with claims that an action violates the First and Fourteenth Amendments. In the ordinary case, the activity would be upheld if it has any rational basis. However, in those cases in which there is an infringement upon a fundamental right (such as the right to speak), the defendant would be required to justify the action by demonstrating that action was taken to serve a substantial state interest.
Conflicts arise between the First Amendment rights of the professionals and protection of consumers. That is, professionals have the right to exercise First Amendment rights and to advance pecuniary interests, but consumers are entitled to protection from overreaching and deceptive practices. As regulators of both professionals and consumers, states may maintain ethical standards of its licensed professionals by requiring specific procedures, policies, rules, and regulations and may protect them from competition, but states may not keep the public ignorant of lawful terms offered by those professionals.
The U.S. Supreme Court has prohibited absolute bans on advertising by professionals,3 required caveats as warnings, defined the type of advertising not permissible to regulate4 as well as indicated that states could regulate certain advertising and could even ban certain types of advertisements.5 The court also established a four-prong test to identify when restriction of commercial speech may be exercised.6 The court has stood firm on this issue of commercial speech, but its future direction is unclear as decisions are overruled, for example, the failure to utilize the...