dissenting.
I respectfully dissent.
After attaching the label of “economic regulation” 1 to the statute at issue, the principal opinion improperly disregards United States Supreme Court interpretation of the First Amendment to the United States Constitution. Whether or not state court judges agree with that Court’s decisions we must accept and follow Supreme Court pronouncements on federal constitutional law. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816). See also The Federalist Papers No. 82. See generally G. Gunther, Constitutional Law 36-48 (10th ed. 1980); Hart and Wech-sler’s The Federal Courts And The Federal System 455-60 (2nd ed. 1973). Our federal system does not contemplate state courts avoiding the dictates of applicable federal law by attaching a label to a statute or by torturing the construction and interpretation of statutes in order to reach an “adequate and independent” state ground on which to base the decision. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). Cf. Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 22 L.Ed. 590 (1875). I would *673join the State of Alabama in following the well reasoned and amply supported opinion of the Illinois Supreme Court and hold the regulation unconstitutional.
“First Amendment theory provides different levels of protection by balancing the competing interests depending on the character of the speech. The highest protection is accorded pure speech touching on matters of public importance.” Henry v. Halliburton, 690 S.W.2d 775, 784 (Mo. banc 1985). See generally Philadelphia Newspapers, Inc. v. Hepps, — U.S. -, -, 106 S.Ct. 1558, 1562-64, 89 L.Ed.2d 783,54 U.S.L.W. 4373,4375-76 (U.S. April 22,1986); Pacific Gas & Electric Co. v. Public Utilities Commission of California, — U.S.-,-, 106 S.Ct. 903, 906, 89 L.Ed.2d 1 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., — U.S. -, 105 S.Ct. 2939, 2945 n. 5, 86 L.Ed.2d 598 (1985); F.C.C. v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 3118, 82 L.Ed.2d 278 (1984); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982). Such protection reflects that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). Initially, the Supreme Court held that commercial speech was not entitled to such First Amendment protection. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). Later, in Bige-low v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), and in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Court rejected its earlier position and brought commercial speech within the sphere of the First Amendment. Although not entitled to the same level of protection, it is now settled that regulations of commercial speech will be scrutinized to ensure their constitutionality. See generally Barnes, A Call For a Value-Based Test of Commercial Speech, 63 Wash. U.L.Q. 649 (1985); Barnes, Regulations of Speech Intended to Affect Behavior, 63 Denver U.L.Rev. 37 (1985); McChesney, Commercial Speech in the Professions: The Supreme Court’s Unanswered Questions and Questionable Answers, 134 U.Pa.L.Rev. 45 (1985); Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 New.U.L.Rev. 1212 (1983).
The initial question is whether the activity being regulated is speech. Coldwell argues that the statute and regulation are unconstitutional restraints on its right to solicit business through the use of a type of promotional program. According to Coldwell, the restriction prohibits it from using the promotional program to attract customers, which Coldwell contends is a regulation on its right to solicit and thus advertise. The principal opinion responds by presuming that the State has prohibited the underlying commercial activity — that is, the giving of the coupons — and holds that speech is not involved. If the underlying activity, in fact, was prohibited, we may well have a different case.2 The restriction in this case cannot be so easily separated into activity versus speech because the restriction is aimed at a form of *674solicitation through advertising where speech will always be a component part.
When the Supreme Court held that commercial speech was entitled to First Amendment protection — albeit to a lesser degree of protection than “political” speech, it did not design for us an exact measuring stick or formula for measuring and distinguishing what is commercial activity and what is commercial speech. In Friedman v. Rogers, 440 U.S. 1,10 n. 9, 99 S.Ct. 887, 894 n. 9, 59 L.Ed.2d 100 (1979), that Court noted:
The application of First Amendment protection to speech that does “no more than propose a commercial transaction,” Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385 [93 S.Ct. 2553, 2558, 37 L.Ed.2d 669] (1973), has been recognized generally as a substantial extension of traditional free-speech doctrine which poses special problems not presented by other forms of protected speech. Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L. Rev. 1 (1979); Note, 57 B.U.L.Rev. 833 (1977). Cf. Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U.Chi.L.Rev. 205 (1976). By definition, commercial speech is linked inextricably to commercial activity: while the First Amendment affords such speech “a limited measure of protection,” it is also true that “the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 [98 S.Ct. 1912, 1918, 56 L.Ed.2d 444] (1978). Because of the special character of commercial speech and the relative novelty of First Amendment protection for such speech, we act with caution in confronting First Amendment challenges to economic legislation that serves legitimate regulatory interests. Our decisions dealing with more traditional First Amendment problems do not extend automatically to this as yet uncharted area. See, e.g., id., at 462 n. 20 [98 S.Ct. at 1922 n. 20] (overbreadth analysis not applicable to commercial speech). When dealing with restrictions on commercial speech we frame our decisions narrowly, “allowing modes of regulation [of commercial speech] that might be impermissible in the realm of noncommercial expression.” Id., at 456 [98 S.Ct. at 1918],
Commenting upon the case, Archibald Cox writes that it may well be futile to attempt “to maintain a general constitutional distinction between commercial advertising and other commercial activity.” A. Cox, Freedom of Expression 40 (1981). See also Jackson v. Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 V.L.Rev. 1, 21 n. 70, 32-34 (1979). This may be true, but until the commercial speech doctrine is overturned by the Supreme Court of the United States, it is our duty to undertake the task.
This case illustrates the difficulty in distinguishing between commercial speech and other forms of commercial activity. The principal opinion avoids the problem by holding that the statute prohibits the giving of the coupons as gifts to those who purchase real estate through Coldwell. The opinion draws a distinction between the inducement itself and the communication of the inducement. It states that “[t]he statute says that things of value shall not be given to attract purchasers. It does not deal with the means of communication, and would apply even if there were not advertising and Coldwell relied purely on customers who had received the benefit to spread the word. The statute regulates conduct, not speech.” The analysis, logical as it appears to be, overlooks both the terms of the statute and the difficult question of distinguishing between conduct and speech.
The principal opinion not only misreads the statute but ignores the Commission’s own argument to this Court. The crux of the statute is that it prohibits the Savings Program only if Coldwell uses the Program to induce customers to purchase, lease, sell or list property. The statute is not a per se prohibition against the Savings *675Program; rather, it is directed at the manner and purpose for implementing such a program.3 It is undisputed in the record that the Commission is arguing that Cold-well cannot use the program if it intends to use the coupons to induce customers. The Commission’s brief before this Court focuses on whether the Program will, in fact, induce customers; and, the Commission’s initial position was that the trial court had insufficient facts to render any decision in a motion for summary judgment. In their reply brief, the Commission makes its position clear when it observes:
[Ajssuming arguendo that the program does not influence consumers, the program would not be within the bounds of the statute. To prove a violation under § 339.100.2(12), RSMo 1978, the Commission would have to prove that a licensee used the coupons and that a consumer’s decision to list or sell through that licensee was influenced by those coupons. * * Respondent could institute its program and only those licensees actually using the coupons to influence consumer decisions could be disciplined.
* * * It is clear that consumer influence is what this case is all about.
(Emphasis added.) Elsewhere, the Commission concedes that to establish a violation of the statute the Commission must do more than,
enter into evidence an advertisement that the coupons will be given to a customer. The Commission would have to prove that the licensee actually and knowingly used the coupons to induce the customer in a specific transaction and that the customer was actually influenced by the licensee’s conduct, i.e., use of the discount coupon book. Prosecution could not occur if a buyer of a home was unaffected by the licensee’s use of the coupons.
(Emphasis added.) In oral argument to this Court, the Commission was asked whether the statute prohibited the giving of the coupons if Coldwell did not advertise, and the Commission failed to answer the question. Thus, it seems clear to all but the majority of the Court that the statute would not be violated if the licensee gave the coupons not for the purpose of inducing the customer to purchase, lease, sell or list property but rather for such a purpose as generating more business for Sears by offering coupons.
That the statute was intended to regulate the manner in which the licensee proposes a commercial transaction was virtually admitted by the Commission in its Suggestions in Opposition to Plaintiff’s Motion for Summary Judgment. The Commission's own regulation confirms this point by providing that the regulation restricts the manner of advertising.
PURPOSE: This rule not only defines advertising but it also regulates the manner, form, requirements and restrictions imposed thereon....
4 C.S.R. 250-8.070.
Quite clearly, therefore, the statute at issue attempts to regulate the manner licensees can solicit business through advertising. Such regulations have been treated consistently as implicating commercial speech. For example, in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the managing editor of a newspaper was charged with violating the prohibition against encouraging or prompting the procurement of abortions. Under the reasoning of the principal opinion, one could argue that this was a regulation of activity and not speech because there is a difference between the encouragement itself and the advertising. But of course no such distinction was drawn in Bigelow. Similarly, in Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), the State sought to restrict a particular form of lawyer solicitation. Although the Court up*676held the restriction against in-person solicitation, it was presumed that the activity being regulated involved some element of commercial speech. In the case at bar, however, the principal opinion suggests that the activity in Ohralik did not involve speech simply because there is a difference between the manner of acquiring clients and the transmission of information concerning the services to be rendered to the client.4 While critical of the commercial speech cases, Jackson & Jeffries indicate that prohibiting the inducement or encouragement of commercial activity without prohibiting the activity absent such inducement or encouragement implicates commercial speech concerns:
A number of states, for example, have statutes that regulate or prohibit the use of “loss leaders” — the practice of selling certain products at below cost to “lead” consumers into a store, where they presumably will buy other products as well. The Supreme Court has upheld these regulations. See Safeway Stores, Inc. v. Oklahoma Retail Grocers Ass’n, 360 U.S. 334, 341-42 [79 S.Ct. 1196, 1201-02, 3 L.Ed.2d 1280] (1959). If, however, states wished for some reason to ban the advertising of loss leaders but not the selling below cost (because, for example, they were more concerned with the solicitation aspect than the below cost selling aspect, and thought that this *677would be easier to police than an “intent” test), application of the decision in Virginia Board of Pharmacy would lead to the conclusion that the advertising ban without an underlying product ban runs afoul of the first amendment.
Jackson & Jeffries, supra, at 36 n. 128 (emphasis added).5 That is what the State has done in the case sub judice. It was concerned with the solicitation aspect of using the discount coupons (not unlike “loss leaders”) to attract customers and only regulated that activity without prohibiting discount coupons. See also A. Cox, supra, at 41 (suggesting that a restriction against encouraging the consumption of cigarettes or alcoholic beverages would be unconstitutional).6
When confronted with the Savings Program and a similar prohibition, both the Illinois Supreme Court and the State of Alabama agree that the activity being regulated is commercial speech. See Coldwell Banker Res. Real Estate v. Clayton, 105 Ill.2d 389, 86 Ill.Dec. 322, 475 N.E.2d 536 (1985); Coldwell Banker Graben Real Estate v. Alabama Real Estate Comm’n, No. 86-T-69-N, Consent Decree, March 31, 1986 (U.S.D. Ct. M.D.Ala.). See also Coldwell Banker Res. Real Estate Services of Ohio v. Bishop, No. C-840601 slip op. (Ohio Ct. of App. Sept. 4, 1985) (per curiam) (suggesting such activity involves commercial speech). See generally D. Burke, Law of Real Estate Brokers § 5.12 (1985 Supp.) (for a discussion of the Illinois case). This conclusion is inescapable because Coldwell is prohibited only from using the coupon books as inducements when one purchases, leases, or lists real estate with Coldwell. The Savings Program is not in itself made unlawful; it is only when it is used to induce customers that it becomes unlawful. Thus, “inducement,” in this context, is but a substitute for prohibiting the communication of the Savings Program — that is, advertising of the Savings Program. “[I]t *678is only the communication — the use of the plans as inducements to secure customers, with a direct tie to a transaction — which the defendant claims is illegal. The information sought to be communicated concerns a lawful activity.” Coldwell Banker Res. Real Estate v. Clayton, supra, 475 N.E.2d at 542. The Illinois court, therefore, observed that such a prohibition “is, in effect, an advertising regulation. Commercial speech concerns are ... directly at issue.” Id. at 540. In a consent decree, the Attorney General for the State of Alabama conceded that this type of prohibition was aimed at commercial speech and was unconstitutional. Coldwell Banker Graben Real Estate v. Alabama Real Estate Comm’n, supra.
Having determined that the State is attempting to regulate commercial speech, I would then decide whether the regulation is constitutional under the four-part test established in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.
Metromedia, Inc. v. San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (summarizing the Central Hudson test). As discussed earlier, the giving of the coupon books is not illegal; thus, advertising the Savings Program is not advertising unlawful activity. “[T]here is nothing inherently unlawful in ... the coupon program ...” Coldwell Banker Res. Real Estate v. Clayton, supra, 475 N.E.2d at 542. The State, in effect, is permitting a discount on the fees but denying the servi-cer the ability to inform the customer about the discount.
The Commission claims that advertising about the availability of the Savings Program will mislead the public because the information disseminated by the advertisements, although truthful, will be misused by consumers. It is not the advertisements that the Commission claims will mislead consumers; rather, the Commission contends that when consumers are informed about the Savings Program they may become unduly enticed by the Program and engage Coldwell’s services for a reason other than Coldwell’s competence as a real estate broker. Such a paternalistic justification has been rejected consistently by the United States Supreme Court. See Bates v. State Bar of Arizona, 433 U.S. 350, 365, 97 S.Ct. 2691, 2699, 53 L.Ed.2d 810 (1977); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 96-97, 97 S.Ct. 1614, 1620, 52 L.Ed.2d 155 (1977); Virginia Pharmacy Board v. Virginia Pharmacy Council, 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976).
What is at issue is whether a State may completely suppress the dissemination of concedely truthful information about an entirely lawful activity, fearful of the information’s effect upon its dissemina-tors and its recipients. Reserving other questions, we conclude that the answer to this one is in the negative.
Virginia Pharmacy Board v. Virginia Pharmacy Council, supra, at 773, 96 S.Ct. at 1831. Truthful commercial speech that is misleading may be banned only if the form of the speech is more likely to deceive the public than to inform the public. Central Hudson Gas v. Public Service Comm’n, supra, 447 U.S. at 563, 100 S.Ct. at 2350.
A review of the Savings Program indicates that there is nothing misleading in the Savings Program itself or in telling consumers about the existence of the Savings Program. Similarly, the Illinois court observed:
The defendant maintains that the section’s prohibition of plaintiff’s marketing plans, as well as the use of a “limitless array of gimmicks,” prevents the distortion of the cost of the broker’s services *679or the home he is attempting to sell. As such, the consumer is better able to make informed price and quality comparisons. Defendant goes so far as to suggest that brokers could use such inducements to lead buyers to specific neighborhoods or homes. Defendant concludes that the section “serves as a means of unfairly victimizing the public in the sophisticated financial transaction of the sale of property.”
Defendant’s bare assertions are conjectural and insufficient to justify the restrictions the section places on commercial speech. No evidence has been presented which would demonstrate that the use of commission discounts or discount coupons is inherently harmful or dishonest or likely to confuse or mislead the consumer.
Coldwell Banker Res. Real Estate v. Clayton, supra, 475 N.E.2d at 543.
Regulation of commercial speech will be upheld if it is proportionate to the interest served, directly advances that governmental interest and is no “more extensive than necessary to serve that interest.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 2881, 77 L.Ed.2d 469 (1983). See In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 931, 71 L.Ed.2d 64 (1982). The burden is on the State to justify a restriction on commercial speech. Zauderer v. The Office of Disciplinary Counsel, — U.S.-,-, 105 S.Ct. 2265, 2276, 85 L.Ed.2d 652, 666 (1985); Bolger v. Youngs Drug Products Corp., supra. The Commission argues that the prohibition in this case protects the public from information which may distract prospective customers from more important considerations regarding the purchase of a home.
I agree with the Illinois Supreme Court and the Attorney General for Alabama that such an argument carries little weight. Cf Linmark Associates, Inc. v. Willingboro, supra, 431 U.S. at 96-97, 97 S.Ct. at 1620; Rotunda, The Commercial Speech Doctrine In the Supreme Court U.Ill.L.F. 1080 (1976). In striking down a state ban on
drug price advertising, the United States Supreme Court stated:
There is ... an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.... But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.
Virginia Pharmacy Board v. Virginia Pharmacy Council, supra, 425 U.S. at 770, 96 S.Ct. at 1829.
The majority, admitting that Coldwell Banker v. Clayton, supra, “is substantially identical on the facts,” would dispose of and decline to follow the case for the reason that the Illinois Court “fails to distinguish between regulation of conduct and regulation of expression.” However, between circulation of the principal opinion and final draft of this dissent, a unanimous U.S. Supreme Court speaking through Justice Rehnquist has stated:
Moreover, where speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests.
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Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force. But cf. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 [98 S.Ct. 1912, 1920, 56 L.Ed.2d 444 (1978). This Court “may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgement of expressive activity.”
*680City of Los Angeles v. Preferred Communications, Inc., — U.S. -, -, 106 S.Ct. 2034, —, 90 L.Ed.2d 480 (1986) (citations omitted).
Additionally, restrictions upon protected commercial speech must be narrowly drawn and may extend only as far as the interest it serves. Central Hudson Gas & Electric Corp. v. Public Service Comm’n, supra, 447 U.S. at 565, 100 S.Ct. at 2350. Like our sister court in Illinois, I agree that “[i]f a broker does, however, utilize a marketing plan to defraud or mislead a consumer,” other options are available to the State. Coldwell Banker Res. Real Estate v. Clayton, supra, 475 N.E.2d at 543. The Commission, for example, can proceed against a licensee who performs “[a]ny other conduct which constitutes untrustworthy, improper or fraudulent business dealings, or demonstrates bad faith or gross incompetence.” § 339.100.2(18), RSMo 1978. The statute and regulation at issue prohibit an entire category of commercial speech while more limited means exist for effectuating the asserted governmental purpose.7 See In re R.M.J., supra, at 203, 102 S.Ct. at 931.
I would affirm the judgment.8
. All commercial speech cases would fall under the label of economic regulation simply because such activity proposes a business transaction— that is, economic activity. It is apparently for this reason that some commentators criticize trivializing the First Amendment by including commercial speech under its protection in a fashion reminiscent of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). See Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1 (1979). See also L. Tribe, Constitutional Choices 210 (1985).
. Due to the widespread use of coupons as an indirect means for reducing consumer prices and generating business, it may well be that a flat prohibition on discount coupons would come perilously close to offending the Fourteenth Amendment. See e.g., Airline Plans Giveaways To Spur Atlantic Travel, St. Louis Post-Dispatch, May 21,1986, at 1 (Rolls Royce, townhouses, and other gifts to stimulate travel). The argument can be made that a reduced price is an important factor in a consumer’s decision and the State cannot presume that the consumer will be harmed, or overwhelmed, by that factor alone in the decision-making process. See generally Scott, Error and Rationality in Individual Decisionmaking: An Essay on the Relationship Between Cognitive Illusions and the Management of Choices, 59 S.Cal.L.Rev. 329 (1986). One might draw an analogy between this regulation and a restriction on using lower prices as inducement to secure business for the licensee.
The principal opinion refers to other areas where competition is restricted. The two statutes cited are concerned with price discrimination and driving out competitors. That, however, is a far cry from the purported reason for the statute at issue and what it regulates.
. The principal opinion presumes that conditional gifts are tantamount to "inducement[s]" under the statute and therefore prohibited. A reading of the statute indicates the fallacy in this reasoning. Using something as an inducement under the statute refers to the manner of behavior (soliciting or advertising) and is not synonymous with the reference to conditional gifts.
. Certain language in Ohralik, however, does, at first glance, seem to support such a distinction:
Moreover, “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 [69 S.Ct. 684, 690, 93 L.Ed. 834] (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulfer Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 [89 S.Ct. 1454, 22 L.Ed.2d 756] (1969), corporate proxy statements. Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U.S. 377 [42 S.Ct. 114, 66 L.Ed. 284] (1921), and employers' threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 [89 S.Ct. 1918, 1942, 23 L.Ed.2d 547] (1969). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 [93 S.Ct. 2628, 2637, 37 L.Ed.2d 446] (1973). Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Neither Virginia Pharmacy nor Bates purported to cast doubt on the permissibility of these kinds of commercial regulation.
In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component.
Ohralik v. Ohio State Bar Ass’n, supra, 436 U.S. at 456-47, 98 S.Ct. 1918-19. See also Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). And, in SEC v. Lowe, 725 F.2d 892, 901 (2nd Cir.1984), later reversed on other grounds in — U.S.-, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985), the Second Circuit held that the activity in that case was simply the regulation of economic activity — although the court then considered the restriction in light of the commercial speech doctrine. But cf. Schoeman, The First Amendment and Restriction on Advertising of Securities Under the Securities Act of 1933, 41 The Bus. Lawyer 377 (1986). Predicting the full import of this language in Ohralik is difficult for a number of reasons. First, the Court in that case had not yet developed a less restrictive test for commercial speech and was attempting to explain that certain economic activity that involved speech could be regulated. Second, in Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), the Court noted that commercial activity and commercial speech often might be inextricably linked. And, third, since Ohralik, the Court has treated nontraditional advertising cases as commercial speech, and now under Central Hudson Gas and Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), there is a workable approach for determining the constitutionality of such regulations.
In a well-written article, one commentator suggests that the Supreme Court has treated commercial advertising cases differently than no-nadvertising cases, although the latter still fall within the realm of commercial speech. McChesney, supra. While the author criticizes such a distinction, he contends that in nonad-vertising cases such as Ohralik and Friedman, the State need only show a risk of deception. It is important to note, however, that such cases are treated as commercial speech cases. While I believe that Central Hudson resolved this problem, even under this less restrictive test the statute at issue is unconstitutional.
. The authors, however, suggest that such a situation illustrates the problem with commercial speech cases because the distinction should be pointless and the activity should be subject to state regulation. The import of the distinction, however, is lessened because under Central Hudson the State can regulate some commercial speech.
. The principal opinion seems to disregard other Supreme Court decisions where that Court could have distinguished between commercial activity and commercial speech (advertising) but failed to entertain such an analysis. See Bolger v. Youngs Drugs Product Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (a prohibition on unsolicited mailing of contraceptive advertisements); Central Hudson Gas and Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (a prohibition against private utility companies from promoting energy consumption); Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (restricting the use of trade names for optometrists). See also City of Renton v. Playtime Theatres, Inc., — U.S.-, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (zoning ordinance restricting the location of adult movie theatres); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) ("anti-skid row” ordinance). And, I see no reason why, under the reasoning of the principal opinion, a court could not hold that a prohibition against in-person distribution of commercial information is a regulation of commercial activity and not speech (advertising). E.g., Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). But cf. Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136 (3rd Cir.1982).
If, for example, the state prohibited the sale of liquor, it could prohibit the advertising. If, however, the sale of liquor was not prohibited but strictly regulated through time, place and manner restrictions, and one of the regulations prohibited encouraging the sale of liquor, the principal opinion suggests that such a regulation would be directed at activity rather than speech. Advertising could be viewed as an incident to the sale of liquor, and the prohibition would be against the manner of soliciting business. E.g., Delamater v. South Dakota, 205 U.S. 93, 104, 27 S.Ct. 447, 450, 51 L.Ed. 724 (1907). See also Barnes, Regulations of Speech Intended to Affect Behavior, supra, at 43. Although subsequently affirmed on other grounds, a United States Court of Appeals presumed that commercial speech was involved when the State of Oklahoma strictly regulated the sale of liquor but prohibited its advertising. Oklahoma Telecasters Ass’n v. Crisp, 699 F.2d 490 (10th Cir.1983), aff'd on other grounds, Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). See also Spiritual Psychic Science Church of Azusa, 39 Cal.3d 501, 703, 217 Cal. Rptr. 225, 703 P.2d 1119 (Cal.1985) (although deciding the issue on state grounds, held that a regulation against fortunetellers was directed at speech).
. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.
Zauderer v. Office of Disciplinary Counsel, supra, — U.S. at - 105 S.Ct. at 2279, 85 L.Ed.2d at 669.
. For several years, I taught thousands of Missouri licensees in a real estate association pre-li-censing school that statutes and regulations such as those currently before this Court are constitutional. That, however, was before the United States Supreme Court’s recognition of the applicability of the commercial speech doctrine and before the creation of national real estate companies such as Coldwell Banker, Century 21 and others. The buying and selling of real estate and the use of coupons each touch the life of almost every person living in the United States. I now perceive it to be my duty to determine the constitutionality of the regulation at issue in light of the recent Supreme Court decisions, and after doing so I must agree with the decision of the Illinois Supreme Court that the regulation is unconstitutional. I might also add that as an instructor in the real estate pre-licensing school, I was issued a broker’s license which has never been activated.