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At least we encourage competition

If I were not a journalist I would be a lawyer. At their best, our professions have much in common. Good lawyers, like good journalists, take to heart Joseph Pulitzer's admonition to "comfort the afflicted and afflict the comfortable." Without us, democracy would have a hard time. Civil rights would be unenforceable, as we both frequently remind you.

Beneath our self-righteousness, though, lies not just a large measure of truth but a great and growing insecurity. Under the facades, our self-images are hurting. Public opinion is hostile toward both professions, not without some good reasons. The Simpson trial, for example, is a mutual disgrace.

Noble, upstanding lawyers frown in disgust at attorney advertising on billboards or the backs of buses. Similarly, ethical journalists deplored Connie Chung for trashing a confidence. We cringe when we see the Weekly World News or National Enquirer at the supermarket and at checkbook journalism that compromises information by paying sources.

But we don't try to put our sleazebag colleagues out of business, which is where we and the lawyers have now parted company. The Bar, which prides itself as a first-line defender of the Constitution, has just won a Supreme Court decision that tears a large gash in the First Amendment, and for what? To polish the image of lawyers.

The decision upholds a Florida rule forbidding personal-injury lawyers from mailing solicitations to victims or their relatives for 30 days after an accident or disaster. This is, of course, a direct infringement on freedom of speech, which the court previously had held to protect truthful advertising even by lawyers.

Stripped of all the cumbersome folderol with which Sandra Day O'Connor failed to cover up her having chosen the wrong side, the majority opinion comes down to this: What offends the public about lawyers diminishes respect for the Bar. Ergo, what makes the Bar look bad, the Bar can ban. As a profession, the Bar has "a substantial interest in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered."

What hokum. First, it wasn't proved that the public really gives a hoot about ambulance chasers. Far worse, in my book, are the sharks who defend tobacco companies by ruthlessly wearing down the opposition or who help corporate raiders loot thriving companies and throw thousands of honest people out of work. Secondly, the Florida Bar is not simply a profession but an entire branch of Florida government, with the Supreme Court at its head. It has a responsibility to free speech.

It is as if the establishment press were to get a court order banning tabloids from supermarket racks and Geraldo Rivera from television because they make finicky people think we're all slimy. We wouldn't (and couldn't) do that. I am chagrined, however, to admit that O'Connor favorably cited a 1987 editorial in this newspaper that disapproved of lawyer solicitations. We let our distaste for the tawdry undermine our faith in the First Amendment.

Personally, I do not think too highly of lawyers who hustle by mail and wouldn't hire one. Unlike the people who do, however, I already know all the good lawyers I might ever need. And if I were lying semi-conscious in a hospital bed, I'd still know not to sign anything an unctuous insurance adjuster brings me. But many people wouldn't. As Justice Anthony Kennedy noted in his compelling dissent, it makes "little sense" to shield them only from the lawyers who might give them timely warning not to sign their rights away, and especially not when the presumed cause is only that "the expression might offend the listener." The victims who won't get the letters, he said, are those who most need them.

Eighteen years ago, the court interpreted the First Amendment to mean lawyers could advertise despite silk-stocking sensibilities.

Now, said Kennedy, the court orders "a major retreat from the constitutional guarantees for commercial speech in order to shield its own profession from public criticism." The court's opinion, he concluded in sorrow and anger, reflects "a newfound and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the Bar and its clients. Self-assurance has always been the hallmark of a censor."

The decision seems out of character for the current Supreme Court, which in another recent Florida case on commercial speech had struck down an equally nonsensical state rule prohibiting certified public accountants from personally soliciting new clients. So perhaps this one was only an aberration owing to the majority's' personal vanity as lawyers _ which would still be a shabby reason. It is a dangerous precedent nonetheless. The right of some citizens to hear what might help them has been abridged because it might offend someone. Four justices _ Kennedy, Souter, Ginsburg and Stevens _ were alarmed. Bless them, but four is one too few.

Martin Dyckman is associate editor of the Times.

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