Milavetz, Gallop & Milavetz, P. A. v. United States , 559 U.S. 229 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
        MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. v. 
    
                     UNITED STATES
    
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                     THE EIGHTH CIRCUIT
    
       No. 08–1119. Argued December 1, 2009—Decided March 8, 2010*
    The Bankruptcy Abuse Prevention and Consumer Protection Act of
      2005 (BAPCPA) amended the Bankruptcy Code to define a class of
      bankruptcy professionals termed “debt relief agenc[ies].” 
    11 U.S. C
    .
      §101(12A). That class includes, with limited exceptions, “any person
      who provides any bankruptcy assistance to an assisted person . . . for
      . . . payment . . . , or who is a bankruptcy petition preparer.” Ibid.
      The BAPCPA prohibits such professionals from “advis[ing] an as
      sisted person . . . to incur more debt in contemplation of [filing for
      bankruptcy] . . . .” §526(a)(4). It also requires them to disclose in
      their advertisements for certain services that the services are with
      respect to or may involve bankruptcy relief, §§528(a)(3), (b)(2)(A), and
      to identify themselves as debt relief agencies, §§528(a)(4), (b)(2)(B).
          The plaintiffs in this litigation—a law firm and others (collectively
      Milavetz)—filed a preenforcement suit seeking declaratory relief, ar
      guing that Milavetz is not bound by the BAPCPA’s debt-relief-agency
      provisions and therefore can freely advise clients to incur additional
      debt and need not make the requisite disclosures in its advertise
      ments. The District Court found that “debt relief agency” does not
      include attorneys and that §§526 and 528 are unconstitutional as ap
      plied to that class of professionals. The Eighth Circuit affirmed in
      part and reversed in part, rejecting the District Court’s conclusion
      that attorneys are not “debt relief agenc[ies]”; upholding application
      of §528’s disclosure requirements to attorneys; and finding §526(a)(4)
      unconstitutional because it broadly prohibits debt relief agencies
    ——————
      * Together with No. 08–1225, United States v. Milavetz, Gallop & Mi
    lavetz, P. A., et al., also on certiorari to the same court.
    2        MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                              Syllabus 
    
    
        from advising assisted persons to incur any additional debt in con
        templation of bankruptcy even when the advice constitutes prudent
        prebankruptcy planning.
    Held:
        1. Attorneys who provide bankruptcy assistance to assisted persons
     are debt relief agencies under the BAPCPA. By definition, “bank
     ruptcy assistance” includes several services commonly performed by
     attorneys, e.g., providing “advice, counsel, [or] document prepara
     tion,” §101(4A). Moreover, in enumerating specific exceptions to the
     debt-relief-agency definition, Congress indicated no intent to exclude
     attorneys. See §§101(12A)(A)–(E). Milavetz relies on the fact that
     §101(12A) does not expressly include attorneys in advocating a nar
     rower understanding. On that reading, only a bankruptcy petition
     preparer would qualify—an implausibility given that a “debt relief
     agency” is “any person who provides any bankruptcy assistance . . . or
     who is a bankruptcy petition preparer,” ibid. Milavetz’s other argu
     ments for excluding attorneys are also unpersuasive. Pp. 5–9.
        2. Section 526(a)(4) prohibits a debt relief agency only from advis
     ing a debtor to incur more debt because the debtor is filing for bank
     ruptcy, rather than for a valid purpose. The statute’s language, to
     gether with its purpose, makes a narrow reading of §526(a)(4) the
     natural one. Conrad, Rubin & Lesser v. Pender, 
    289 U.S. 472
    , sup
     ports this conclusion. The Court in that case read now-repealed
     §96(d), which authorized reexamination of a debtor’s attorney’s fees
     payment “in contemplation of the filing of a petition,” to require that
     the portended bankruptcy have “induce[d]” the transfer at issue, id.,
     at 477, understanding inducement to engender suspicion of abuse.
     The Court identified the “controlling question” as “whether the
     thought of bankruptcy was the impelling cause of the transaction,”
     ibid.    Given the substantial similarities between §§96(d) and
     526(a)(4), the controlling question under the latter is likewise
     whether the impelling reason for “advis[ing] an assisted person . . . to
     incur more debt” was the prospect of filing for bankruptcy. In prac
     tice, advice impelled by the prospect of filing will generally consist of
     advice to “load up” on debt with the expectation of obtaining its dis
     charge.     The statutory context supports the conclusion that
     §526(a)(4)’s prohibition primarily targets this type of conduct. The
     Court rejects Milavetz’s arguments for a more expansive view of
     §526(a)(4) and its claim that the provision, narrowly construed, is
     impermissibly vague. Pp. 9–18.
        3. Section 528’s disclosure requirements are valid as applied to Mi
     lavetz. Consistent with Milavetz’s characterization, the Court pre
     sumes that this is an as-applied challenge. Because §528 is directed
     at misleading commercial speech and imposes only a disclosure re
                         Cite as: 559 U. S. ____ (2010)                    3
    
                                    Syllabus
    
      quirement rather than an affirmative limitation on speech, the less
      exacting scrutiny set out in Zauderer v. Office of Disciplinary Counsel
      of Supreme Court of Ohio, 
    471 U.S. 626
    , governs. There, the Court
      found that, while unjustified or unduly burdensome disclosure re
      quirements offend the First Amendment, “an advertiser’s rights are
      adequately protected as long as disclosure requirements are reasona
      bly related to the State’s interest in preventing deception of consum
      ers.” Id., at 651. Section 528’s requirements share the essential fea
      tures of the rule challenged in Zauderer. The disclosures are
      intended to combat the problem of inherently misleading commercial
      advertisements, and they entail only an accurate statement of the
      advertiser’s legal status and the character of the assistance provided.
      Moreover, they do not prevent debt relief agencies from conveying
      any additional information through their advertisements. In re R. M.
      J., 
    455 U.S. 191
    , distinguished. Because §528’s requirements are
      “reasonably related” to the Government’s interest in preventing con
      sumer deception, the Court upholds those provisions as applied to Mi
      lavetz. Pp. 18–23.
    
    541 F.3d 785
    , affirmed in part, reversed in part, and remanded.
    
       SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and STEVENS, KENNEDY, GINSBURG, BREYER, and ALITO, JJ.,
    joined, in which SCALIA, J., joined except for n. 3, and in which THOMAS,
    J., joined except for Part III–C. SCALIA, J., and THOMAS, J., filed opin
    ions concurring in part and concurring in the judgment.
                            Cite as: 559 U. S. ____ (2010)                              1
    
                                 Opinion of the Court
    
         NOTICE: This opinion is subject to formal revision before publication in the
         preliminary print of the United States Reports. Readers are requested to
         notify the Reporter of Decisions, Supreme Court of the United States, Wash
         ington, D. C. 20543, of any typographical or other formal errors, in order
         that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                       _________________
    
                             Nos. 08–1119 and 08–1225
                                       _________________
    
    
       MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                    PETITIONERS
    08–1119              v.
                   UNITED STATES
    
              UNITED STATES, PETITIONER
    08–1225               v.
        MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
    ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
               APPEALS FOR THE EIGHTH CIRCUIT
                                     [March 8, 2010]
    
      JUSTICE SOTOMAYOR delivered the opinion of the Court.
      Congress enacted the Bankruptcy Abuse Prevention and
    Consumer Protection Act of 2005 (BAPCPA or Act) to
    correct perceived abuses of the bankruptcy system.
    Among the reform measures the Act implemented are a
    number of provisions that regulate the conduct of “debt
    relief agenc[ies]”—i.e., professionals who provide bank
    ruptcy assistance to consumer debtors. See 
    11 U.S. C
    .
    §§101(3), (12A). These consolidated cases present the
    threshold question whether attorneys are debt relief agen
    cies when they provide qualifying services. Because we
    agree with the Court of Appeals that they are, we must
    also consider whether the Act’s provisions governing debt
    relief agencies’ advice to clients, §526(a)(4), and requiring
    them to make certain disclosures in their advertisements,
    2       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                         Opinion of the Court 
    
    
    §§528(a) and (b)(2), violate the First Amendment rights of
    attorneys. Concluding that the Court of Appeals con
    strued §526(a)(4) too expansively, we reverse its judgment
    that the provision is unconstitutionally overbroad. Like
    the Court of Appeals, we uphold §528’s disclosure re
    quirements as applied in these consolidated cases.
                                  I
       In order to improve bankruptcy law and practice, Con
    gress enacted through the BAPCPA a number of provi
    sions directed at the conduct of bankruptcy professionals.
    Some of these measures apply to the broad class of bank
    ruptcy professionals termed “debt relief agenc[ies].” That
    category includes, with limited exceptions, “any person
    who provides any bankruptcy assistance to an assisted
    person in return for . . . payment . . . , or who is a bank
    ruptcy petition preparer.” §101(12A).1 “Bankruptcy assis
    tance” refers to goods or services “provided to an assisted
    person with the express or implied purpose of providing
    information, advice, counsel, document preparation, or
    filing, or attendance at a creditors’ meeting or appearing
    in a case or proceeding on behalf of another or providing
    legal representation with respect to a case or proceeding”
    in bankruptcy. §101(4A). An “assisted person” is someone
    with limited nonexempt property whose debts consist
    primarily of consumer debts. §101(3). The BAPCPA
    subjects debt relief agencies to a number of restrictions
    and requirements, as set forth in §§526, 527, and 528. As
    ——————
       1 Congress excluded from the definition of “debt relief agency” any
    
    “officer, director, employee, or agent of a person who provides [bank
    ruptcy] assistance”; any “nonprofit organization that is exempt from
    taxation under section 501(c)(3) of the Internal Revenue Code of 1986”;
    “a creditor of [an] assisted person” who is helping that person “to
    restructure any debt owed . . . to the creditor”; “a depository institu
    tion”; or “an author, publisher, distributor, or seller of works subject to
    copyright protection under title 17, when acting in such capacity.”
    §§101(12A)(A)–(E).
                     Cite as: 559 U. S. ____ (2010)            3
    
                         Opinion of the Court
    
    relevant here, §526(a) establishes several rules of profes
    sional conduct for persons qualifying as debt relief agen
    cies. Among them, §526(a)(4) states that a debt relief
    agency shall not “advise an assisted person . . . to incur
    more debt in contemplation of such person filing a case
    under this title or to pay an attorney or bankruptcy peti
    tion preparer fee or charge for services performed as part
    of preparing for or representing a debtor in a case under
    this title.”
       Section 528 requires qualifying professionals to include
    certain disclosures in their advertisements. Subsection (a)
    provides that debt relief agencies must “clearly and con
    spicuously disclose in any advertisement of bankruptcy
    assistance services or of the benefits of bankruptcy di
    rected to the general public . . . that the services or bene
    fits are with respect to bankruptcy relief under this title.”
    §528(a)(3). It also requires them to include the following,
    “or a substantially similar statement”: “We are a debt
    relief agency. We help people file for bankruptcy relief
    under the Bankruptcy Code.” §528(a)(4). Subsection (b)
    requires essentially the same disclosures in advertise
    ments “indicating that the debt relief agency provides
    assistance with respect to credit defaults, mortgage fore
    closures, eviction proceedings, excessive debt, debt collec
    tion pressure, or inability to pay any consumer debt.”
    §528(b)(2). Debt relief agencies advertising such services
    must disclose “that the assistance may involve bankruptcy
    relief,” §528(b)(2)(A), and must identify themselves as
    “debt relief agenc[ies]” as required by §528(a)(4), see
    §528(b)(2)(B).
                                  II
      The plaintiffs in this litigation—the law firm Milavetz,
    Gallop & Milavetz, P. A.; the firm’s president, Robert J.
    Milavetz; a bankruptcy attorney at the firm, Barbara
    Nilva Nevin; and two of the firm’s clients (collectively
    4      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                        Opinion of the Court 
    
    
    Milavetz)—filed a preenforcement suit in Federal District
    Court seeking declaratory relief with respect to the Act’s
    debt-relief-agency provisions. Milavetz asked the court to
    hold that it is not bound by these provisions and thus may
    freely advise clients to incur additional debt and need not
    identify itself as a debt relief agency in its advertisements.
       Milavetz first argued that attorneys are not “debt relief
    agenc[ies]” as that term is used in the BAPCPA. In the
    alternative, Milavetz sought a judgment that §§526(a)(4)
    and 528(a)(4) and (b)(2) are unconstitutional as applied to
    attorneys. The District Court agreed with Milavetz that
    the term “debt relief agency” does not include attorneys,
    App. to Pet. for Cert. in No. 08–1119, p. A–15, but only
    after finding that §§526 and 528—provisions expressly
    applicable only to debt relief agencies—are unconstitu
    tional as applied to this class of professionals.
       The Court of Appeals for the Eighth Circuit affirmed in
    part and reversed in part. 
    541 F.3d 785
     (2008). Relying
    on the Act’s plain language, the court unanimously re
    jected the District Court’s conclusion that attorneys are
    not “debt relief agenc[ies]” within the meaning of the Act.
    The Court of Appeals also parted ways with the District
    Court concerning the constitutionality of §528. Conclud
    ing that the disclosures are intended to prevent consumer
    deception and are “reasonably related” to that interest, the
    court upheld the application of §528’s disclosure require
    ments to attorneys. Id., at 796–797 (citing Zauderer v.
    Office of Disciplinary Counsel of Supreme Court of Ohio,
    
    471 U.S. 626
    , 651 (1985)).
       A majority of the Eighth Circuit panel, however, agreed
    with the District Court that §526(a)(4) is invalid. Deter
    mining that §526(a)(4) “broadly prohibits a debt relief
    agency from advising an assisted person . . . to incur any
    additional debt when the assisted person is contemplating
    bankruptcy,” even when that advice constitutes prudent
    prebankruptcy planning not intended to abuse the bank
                        Cite as: 559 U. S. ____ (2010)                 5
    
                            Opinion of the Court
    
    ruptcy laws, 
    541 F. 3d
    , at 793, the majority held that
    §526(a)(4) could not withstand either strict or intermedi
    ate scrutiny. In dissent, Judge Colloton argued that
    §526(a)(4) should be read narrowly to prevent only advice
    to abuse the bankruptcy system, noting that this construc
    tion would avoid most constitutional difficulties. See id.,
    at 799 (opinion concurring in part and dissenting in part).
       In light of a conflict among the Courts of Appeals,2 we
    granted certiorari to resolve the question of §526(a)(4)’s
    scope. 556 U. S. ___ (2009). We also agreed to consider
    the threshold question whether attorneys who provide
    bankruptcy assistance to assisted persons are “debt relief
    agenc[ies]” within the meaning of §101(12A) and the re
    lated question whether §528’s disclosure requirements are
    constitutional.
                                III 
    
                                 A
    
      We first consider whether the term “debt relief agency”
    includes attorneys. If it does not, we need not reach the
    other questions presented, as §§526 and 528 govern only
    the conduct of debt relief agencies, and Milavetz chal
    lenges the validity of those provisions based on their
    application to attorneys. The Government contends that
    “debt relief agency” plainly includes attorneys, while
    Milavetz urges that it does not. We conclude that the
    Government has the better view.
      As already noted, a debt relief agency is “any person
    who provides any bankruptcy assistance to an assisted
    person” in return for payment. §101(12A). By definition,
    “bankruptcy assistance” includes several services com
    ——————
      2 Compare 
    541 F.3d 785
    , 794 (CA8 2008) (case below), with Hersh v.
    
    United States ex rel. Mukasey, 
    553 F.3d 743
    , 761, 764 (CA5 2008)
    (holding that §526(a)(4) can be narrowly construed to prohibit only
    advice to abuse or manipulate the bankruptcy system and that, so
    construed, it is constitutional).
    6       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                         Opinion of the Court 
    
    
    monly performed by attorneys. Indeed, some forms of
    bankruptcy assistance, including the “provi[sion of] legal
    representation with respect to a case or proceeding,”
    §101(4A), may be provided only by attorneys.             See
    §110(e)(2) (prohibiting bankruptcy petition preparers from
    providing legal advice). Moreover, in enumerating specific
    exceptions to the definition of debt relief agency, Congress
    gave no indication that it intended to exclude attorneys.
    See §§101(12A)(A)–(E). Thus, as the Government con
    tends, the statutory text clearly indicates that attorneys
    are debt relief agencies when they provide qualifying
    services to assisted persons.3
      In advocating a narrower understanding of that term,
    Milavetz relies heavily on the fact that §101(12A) does not
    expressly include attorneys. That omission stands in
    contrast, it argues, to the provision’s explicit inclusion of
    “bankruptcy petition preparer[s]”—a category of profes
    sionals that excludes attorneys and their staff, see
    §110(a)(1). But Milavetz does not contend, nor could it
    credibly, that only professionals expressly included in the
    definition are debt relief agencies. On that reading, no
    professional other than a bankruptcy petition preparer
    would qualify—an implausible reading given that the
    statute defines “debt relief agency” as “any person who
    ——————
       3 Although reliance on legislative history is unnecessary in light of
    
    the statute’s unambiguous language, we note the support that record
    provides for the Government’s reading. Statements in a Report of the
    House Committee on the Judiciary regarding the Act’s purpose indicate
    concern with abusive practices undertaken by attorneys as well as
    other bankruptcy professionals. See, e.g., H. R. Rep. No. 109–31, pt. 1,
    p. 5 (2005) (hereinafter H. R. Rep.). And the legislative record else
    where documents misconduct by attorneys. See, e.g., Hearing on H. R.
    3150 before the Subcommittee on Commercial and Administrative Law
    of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. III,
    p. 95 (1998) (hereinafter 1998 Hearings). (While the 1998 Hearings
    preceded the BAPCPA’s enactment by several years, they form part of
    the record cited by the 2005 House Report. See H. R. Rep., at 7.)
                      Cite as: 559 U. S. ____ (2010)            7
    
                          Opinion of the Court
    
    provides any bankruptcy assistance to an assisted person
    . . . or who is a bankruptcy petition preparer.” §101(12A)
    (emphasis added). The provision’s silence regarding at
    torneys thus avails Milavetz little. Cf. Heintz v. Jenkins,
    
    514 U.S. 291
    , 294 (1995) (holding that “debt collector” as
    used in the Fair Debt Collection Practices Act, 
    15 U.S. C
    .
    §1692a(6), includes attorneys notwithstanding the defini
    tion’s lack of an express reference to lawyers or litigation).
        Milavetz’s other arguments for excluding attorneys
    similarly fail to persuade us to disregard the statute’s
    plain language.       Milavetz contends that 
    11 U.S. C
    .
    §526(d)(2)’s instruction that §§526, 527, and 528 should
    not “be deemed to limit or curtail” States’ authority to
    “determine and enforce qualifications for the practice of
    law” counsels against reading “debt relief agency” to in
    clude attorneys, as the surest way to protect the States’
    role in regulating the legal profession is to make the
    BAPCPA’s professional conduct rules inapplicable to
    lawyers. We find that §526(d)(2) supports the opposite
    conclusion, as Congress would have had no reason to enact
    that provision if the debt-relief-agency provisions did not
    apply to attorneys. Milavetz’s broader claim that reading
    §101(12A) to include attorneys impermissibly trenches on
    an area of traditional state regulation also lacks merit.
    Congress and the bankruptcy courts have long overseen
    aspects of attorney conduct in this area of substantial
    federal concern. See, e.g., Conrad, Rubin & Lesser v.
    Pender, 
    289 U.S. 472
    , 477–479 (1933) (finding broad
    authorization in former §96(d) (1934 ed.) (repealed 1978)
    for courts to examine the reasonableness of a debtor’s
    prepetition attorney’s fees).
        Milavetz next argues that §101(12A)’s exception for any
    “officer, director, employee, or agent of a person who pro
    vides” bankruptcy assistance is revealing for its failure to
    include “partners.” §101(12A)(A). In light of that omis
    sion, it contends, treating attorneys as debt relief agencies
    8       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                         Opinion of the Court 
    
    
    will obligate entire law firms to comply with §§526, 527,
    and 528 based on the conduct of a single partner, while
    the agents and employees of debt relief agencies not typi
    cally organized as partnerships are shielded from those
    requirements. Given that the partnership structure is not
    unique to law firms, however, it is unclear why the exclu
    sion would be revealing of Congress’ intent only with
    respect to attorneys. In any event, partnerships are them
    selves “person[s]” under the BAPCPA, see §101(41), and
    can qualify as “debt relief agenc[ies]” when they meet the
    criteria set forth in §101(12A). Moreover, a partnership’s
    employees and agents are exempted from §101(12A) in the
    same way as the employees and agents of other organiza
    tions. To the extent that partners may be subject to the
    debt-relief-agency provisions by association, that result is
    consistent with the joint responsibilities that typically flow
    from the partnership structure, cf. Strang v. Bradner, 
    114 U.S. 555
    , 561 (1885). Accordingly, we decline to attribute
    the significance Milavetz suggests to §101(12A)(A)’s fail
    ure to include partners among the exempted actors.4
       All else failing, Milavetz urges that the canon of consti
    tutional avoidance requires us to read “debt relief agency”
    ——————
      4 Reviving an argument that Milavetz abandoned, amici contend that
    
    §527(b) undermines the Government’s reading of §101(12A) because it
    requires a debt relief agency to inform an assisted person of his right to
    hire an attorney, and it would be nonsensical to require attorneys to
    provide such notice. See Brief for National Association of Consumer
    Bankruptcy Attorneys et al. as Amici Curiae 34. This argument fails
    on its own terms. Even if §101(12A) excluded attorneys, as Milavetz
    contends, §527(b) would still produce the result of which its amici
    complain, as that provision also requires a debt relief agency to inform
    assisted persons that they “ ‘can get help in some localities from a
    bankruptcy petition preparer,’ ” and there is no question that bank
    ruptcy petition preparers are debt relief agencies and thus subject to
    that requirement. It is in any event not absurd to require debt relief
    agencies—whether attorneys or bankruptcy petition preparers—to
    inform prospective clients of their options for obtaining bankruptcy
    assistance services.
                     Cite as: 559 U. S. ____ (2010)            9
    
                         Opinion of the Court
    
    to exclude attorneys in order to forestall serious doubts as
    to the validity of §§526 and 528. The avoidance canon,
    however, “is a tool for choosing between competing plausi
    ble interpretations of a statutory text.” Clark v. Martinez,
    
    543 U.S. 371
    , 381 (2005). In applying that tool, we will
    consider only those constructions of a statute that are
    “ ‘fairly possible.’ ” United States v. Security Industrial
    Bank, 
    459 U.S. 70
    , 78 (1982). For the reasons already
    discussed, the text and statutory context of §101(12A)
    foreclose a reading of “debt relief agency” that excludes
    attorneys. Accordingly, we hold that attorneys who pro
    vide bankruptcy assistance to assisted persons are debt
    relief agencies within the meaning of the BAPCPA.
                                  B
       Having concluded that attorneys are debt relief agencies
    when they provide qualifying services, we next address the
    scope and validity of §526(a)(4). Characterizing the stat
    ute as a broad, content-based restriction on attorney-client
    communications that is not adequately tailored to con
    strain only speech the Government has a substantial
    interest in restricting, the Eighth Circuit found the rule
    substantially overbroad. 
    541 F. 3d
    , at 793–794, and n. 10.
    For the reasons that follow, we reject that conclusion.
       Section 526(a)(4) prohibits a debt relief agency from
    “advis[ing] an assisted person” either “to incur more debt
    in contemplation of” filing for bankruptcy “or to pay an
    attorney or bankruptcy petition preparer fee or charge for
    services” performed in preparation for filing. Only the
    first of these prohibitions is at issue. In debating the
    correctness of the Court of Appeals’ decision, the parties
    first dispute the provision’s scope. The Court of Appeals
    concluded that Ҥ526(a)(4) broadly prohibits a debt relief
    agency from advising an assisted person . . . to incur any
    additional debt when the assisted person is contemplating
    bankruptcy.” Id., at 793. Under that reading, an attorney
    10     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
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                        Opinion of the Court 
    
    
    is prohibited from providing all manner of “beneficial
    advice—even if the advice could help the assisted person
    avoid filing for bankruptcy altogether.” Ibid.
       Agreeing with the Court of Appeals, Milavetz contends
    that §526(a)(4) prohibits a debt relief agency from advising
    a client to incur any new debt while considering whether
    to file for bankruptcy. Construing the provision more
    broadly still, Milavetz contends that §526(a)(4) forbids not
    only affirmative advice but also any discussion of the
    advantages, disadvantages, or legality of incurring more
    debt. Like the panel majority’s, Milavetz’s reading rests
    primarily on its view that the ordinary meaning of the
    phrase “in contemplation of” bankruptcy encompasses any
    advice given to a debtor with the awareness that he might
    soon file for bankruptcy, even if the advice seeks to obviate
    the need to file. Milavetz also maintains that if §526(a)(4)
    were construed more narrowly, as urged by the Govern
    ment and the dissent below, it would be so vague as to
    inevitably chill some protected speech.
       The Government continues to advocate a narrower
    construction of the statute, urging that Milavetz’s reading
    is untenable and that its vagueness concerns are mis
    placed. The Government contends that §526(a)(4)’s re
    striction on advice to incur more debt “in contemplation of”
    bankruptcy is most naturally read to forbid only advice to
    undertake actions to abuse the bankruptcy system. Focus
    ing first on the provision’s text, the Government points to
    sources indicating that the phrase “in contemplation of”
    bankruptcy has long been, and continues to be, associated
    with abusive conduct. For instance, Black’s Law Diction
    ary 336 (8th ed. 2004) (hereinafter Black’s) defines “con
    templation of bankruptcy” as “[t]he thought of declaring
    bankruptcy because of the inability to continue current
    financial operations, often coupled with action designed to
    thwart the distribution of assets in a bankruptcy proceed
    ing.” Use of the phrase by Members of Congress illus
                      Cite as: 559 U. S. ____ (2010)            11
    
                          Opinion of the Court
    
    trates that traditional coupling. See, e.g., S. Rep. No. 98–
    65, p. 9 (1983) (discussing the practice of “ ‘loading up’ [on
    debt] in contemplation of bankruptcy”); Report of the
    Commission on the Bankruptcy Laws of the United States,
    H. R. Doc. No. 93–137, pt. I, p. 11 (1973) (“[T]he most
    serious abuse of consumer bankruptcy is the number of
    instances in which individuals have purchased a sizable
    quantity of goods and services on credit on the eve of
    bankruptcy in contemplation of obtaining a discharge”).
    The Government also points to early American and Eng
    lish judicial decisions to corroborate its contention that “in
    contemplation of” bankruptcy signifies abusive conduct.
    See, e.g., In re Pearce, 
    19 F. Cas. 50
    , 53 (No. 10,873) (D. Vt.
    1843); Morgan v. Brundrett, 5 B. Ad. 288, 296–297, 110
    Eng. Rep. 798, 801 (K. B. 1833) (Parke, J.).
       To bolster its textual claim, the Government relies on
    §526(a)(4)’s immediate context. According to the Govern
    ment, the other three subsections of §526(a) are designed
    to protect debtors from abusive practices by debt relief
    agencies: §526(a)(1) requires debt relief agencies to per
    form all promised services; §526(a)(2) prohibits them from
    making or advising debtors to make false or misleading
    statements in bankruptcy; and §526(a)(3) prohibits them
    from misleading debtors regarding the costs or benefits of
    bankruptcy. When §526(a)(4) is read in context of these
    debtor-protective provisions, the Government argues,
    construing it to prevent debt relief agencies from giving
    advice that is beneficial to both debtors and their creditors
    seems particularly nonsensical.
       Finally, the Government contends that the BAPCPA’s
    remedies for violations of §526(a)(4) similarly corroborate
    its narrow reading. Section 526(c) provides remedies for a
    debt relief agency’s violation of §526, §527, or §528.
    Among the actions authorized, a debtor may sue the at
    torney for remittal of fees, actual damages, and reasonable
    attorney’s fees and costs; a state attorney general may sue
    12    MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                            STATES
    
                       Opinion of the Court 
    
    
    for a resident’s actual damages; and a court finding inten
    tional abuse may impose an appropriate civil penalty.
    §526(c). The Government also relies on the Fifth Circuit’s
    decision in Hersh v. United States ex rel. Mukasey, 
    553 F.3d 743
     (2008), and Judge Colloton’s dissent below for
    the observation that “Congress’s emphasis on actual dam
    ages for violations of section 526(a)(4) strongly suggests
    that Congress viewed that section as aimed at advice to
    debtors which if followed would have a significant risk of
    harming the debtor.” Id., at 760; see 
    541 F. 3d
    , at 800
    (opinion concurring in part and dissenting in part). By
    contrast, “legal and appropriate advice that would be
    protected by the First Amendment, yet prohibited by a
    broad reading of §526(a)(4), should cause no damage at
    all.” Ibid.; see Hersh, 
    541 F. 3d
    , at 760.
       Milavetz contends that the Government’s sources actu
    ally undermine its claim that the phrase “in contemplation
    of” bankruptcy necessarily refers to abusive conduct.
    Specifically, Milavetz argues that these authorities illus
    trate that “in contemplation of” bankruptcy is a neutral
    phrase that only implies abusive conduct when attached to
    an additional, proscriptive term. As Black’s states, the
    phrase is “often coupled with action designed to thwart the
    distribution of assets” in bankruptcy, Black’s 336 (empha
    sis added), but it carries no independent connotation of
    abuse. In support of that conclusion, Milavetz relies on
    our decision in Pender, 
    289 U.S. 472
    , contending that we
    construed “in contemplation of” bankruptcy in that case to
    describe “conduct with a view to a probable bankruptcy
    filing and nothing more.” Brief for Milavetz 61.
       After reviewing these competing claims, we are per
    suaded that a narrower reading of §526(a)(4) is sounder,
    although we do not adopt precisely the view the Govern
    ment advocates. The Government’s sources show that the
    phrase “in contemplation of” bankruptcy has so commonly
    been associated with abusive conduct that it may readily
                     Cite as: 559 U. S. ____ (2010)           13
    
                         Opinion of the Court
    
    be understood to prefigure abuse. As used in §526(a)(4),
    however, we think the phrase refers to a specific type of
    misconduct designed to manipulate the protections of the
    bankruptcy system. In light of our decision in Pender, and
    in context of other sections of the Code, we conclude that
    §526(a)(4) prohibits a debt relief agency only from advising
    a debtor to incur more debt because the debtor is filing for
    bankruptcy, rather than for a valid purpose.
        Pender addressed the meaning of former §96(d), which
    authorized reexamination of a debtor’s payment of attor
    ney’s fees “in contemplation of the filing of a petition.”
    Recognizing “ ‘the temptation of a failing debtor to deal too
    liberally with his property in enabling counsel to protect
    him,’ ” 289 U. S., at 478 (quoting In re Wood & Henderson,
    
    210 U.S. 246
    , 253 (1908)), we read “in contemplation of
    . . . filing” in that context to require that the portended
    bankruptcy have “induce[d]” the transfer at issue, 289
    U. S., at 477, understanding inducement to engender
    suspicion of abuse. In so construing the statute, we identi
    fied the “controlling question” as “whether the thought of
    bankruptcy was the impelling cause of the transaction.”
    Ibid. Given the substantial similarities between §§96(d)
    and 526(a)(4), we think the controlling question under the
    latter provision is likewise whether the impelling reason
    for “advis[ing] an assisted person . . . to incur more debt”
    was the prospect of filing for bankruptcy.
        To be sure, there are relevant differences between the
    provision at issue in Pender and the one now under re
    view. Most notably, the inquiry in Pender was as to pay
    ments made on the eve of bankruptcy, whereas §526(a)(4)
    regards advice to incur additional debts. Consistent with
    that difference, under §96(d) a finding that a payment was
    made “in contemplation of” filing resolved only a threshold
    inquiry triggering further review of the reasonableness of
    the payment; the finding thus supported an inference of
    abuse but did not conclusively establish it. By contrast,
    14    MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                            STATES
    
                       Opinion of the Court 
    
    
    advice to incur more debt because of bankruptcy, as pro
    hibited by §526(a)(4), will generally consist of advice to
    “load up” on debt with the expectation of obtaining its
    discharge—i.e., conduct that is abusive per se.
       The statutory context supports the conclusion that
    §526(a)(4)’s prohibition primarily targets this type of
    abuse. Code provisions predating the BAPCPA already
    sought to prevent the practice of loading up on debt prior
    to filing. Section 523(a)(2), for instance, addressed the
    attendant risk of manipulation by preventing the dis
    charge of debts obtained by false pretenses and making
    debts for purchases of luxury goods or services presump
    tively nondischargeable. See §§523(a)(2)(A) and (C) (2000
    ed.). The BAPCPA increased the risk of such abuse, how
    ever, by providing a new mechanism for determining a
    debtor’s ability to repay. Pursuant to the “means tes[t],”
    §707(b)(2)(D) (2006 ed.), a debtor’s petition for Chapter 7
    relief is presumed abusive (and may therefore be dis
    missed or converted to a structured repayment plan under
    Chapter 13) if the debtor’s current monthly income ex
    ceeds his statutorily allowed expenses, including pay
    ments for secured debt, by more than a prescribed
    amount. See §§707(b)(2)(A)(i)–(iv). The test promotes
    debtor accountability but also enhances incentives to incur
    additional debt prior to filing, as payments on secured
    debts offset a debtor’s monthly income under the formula.
    Other amendments effected by the BAPCPA reflect a
    concern with this practice.        For instance, Congress
    amended §523(a)(2) to expand the exceptions to discharge
    by lowering the threshold amount of new debt a debtor
    must assume to trigger the presumption of abuse under
    §523(a)(2)(C), and it extended the relevant prefiling win
    dow. See §310, 119 Stat. 84. In context, §526(a)(4) is best
    understood to provide an additional safeguard against the
    practice of loading up on debt prior to filing.
       The Government’s contextual arguments provide addi
                     Cite as: 559 U. S. ____ (2010)          15
    
                         Opinion of the Court
    
    tional support for the view that §526(a)(4) was meant to
    prevent this type of conduct. The companion rules of
    professional conduct in §§526(a)(1)–(3) and the remedies
    for their violation in §526(c) indicate that Congress was
    concerned with actions that threaten to harm debtors or
    creditors. Unlike the reasonable financial advice the
    Eighth Circuit’s broad reading would proscribe, advice to
    incur more debt because of bankruptcy presents a sub
    stantial risk of injury to both debtors and creditors. See
    Hersh, 
    553 F. 3d
    , at 760–761. Specifically, the incurrence
    of such debt stands to harm a debtor if his prepetition
    conduct leads a court to hold his debts nondischargable,
    see §523(a)(2), convert his case to another chapter, or
    dismiss it altogether, see §707(b), thereby defeating his
    effort to obtain bankruptcy relief. If a debt, although
    manipulatively incurred, is not timely identified as abu
    sive and therefore is discharged, creditors will suffer harm
    as a result of the discharge and the consequent dilution of
    the bankruptcy estate. By contrast, the prudent advice
    that the Eighth Circuit’s view of the statute forbids would
    likely benefit both debtors and creditors and at the very
    least should cause no harm. See id., at 760; 
    541 F. 3d
    , at
    800 (Colloton, J., concurring in part and dissenting in
    part). For all of these reasons, we conclude that §526(a)(4)
    prohibits a debt relief agency only from advising an as
    sisted person to incur more debt when the impelling rea
    son for the advice is the anticipation of bankruptcy.
       That “[n]o other solution yields as sensible a” result
    further persuades us of the correctness of this narrow
    reading. United States v. Granderson, 
    511 U.S. 39
    , 55
    (1994). It would make scant sense to prevent attorneys
    and other debt relief agencies from advising individuals
    thinking of filing for bankruptcy about options that would
    be beneficial to both those individuals and their creditors.
    That construction serves none of the purposes of the Bank
    ruptcy Code or the amendments enacted through the
    16      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                              STATES
    
                         Opinion of the Court 
    
    
    BAPCPA. Milavetz itself acknowledges that its expansive
    view of §526(a)(4) would produce absurd results; that is
    one of its bases for arguing that “debt relief agency” should
    be construed to exclude attorneys. Because the language
    and context of §526(a)(4) evidence a more targeted pur
    pose, we can avoid the absurdity of which Milavetz com
    plains without reaching the result it advocates.
       For the same reason, we reject Milavetz’s suggestion
    that §526(a)(4) broadly prohibits debt relief agencies from
    discussing covered subjects instead of merely proscribing
    affirmative advice to undertake a particular action. Sec
    tion 526(a)(4) by its terms prevents debt relief agencies
    only from “advis[ing]” assisted persons “to incur” more
    debt. Covered professionals remain free to “tal[k] fully
    and candidly about the incurrence of debt in contempla
    tion of filing a bankruptcy case.” Brief for Milavetz 73.
    Section 526(a)(4) requires professionals only to avoid
    instructing or encouraging assisted persons to take on
    more debt in that circumstance. Cf. ABA Model Rule of
    Professional Conduct 1.2(d) (2009) (“A lawyer shall not
    counsel a client to engage, or assist a client, in conduct
    that the lawyer knows is criminal or fraudulent, but a
    lawyer may discuss the legal consequences of any pro
    posed course of conduct with a client and may counsel or
    assist a client to make a good faith effort to determine the
    validity, scope, meaning or application of the law”). Even
    if the statute were not clear in this regard, we would reach
    the same conclusion about its scope because the inhibition
    of frank discussion serves no conceivable purpose within
    the statutory scheme. Cf. Johnson v. United States, 
    529 U.S. 694
    , 706, n. 9 (2000).5
    ——————
       5 If read as Milavetz advocates, §526(a)(4) would seriously undermine
    
    the attorney-client relationship. Earlier this Term, we acknowledged
    the importance of the attorney-client privilege as a means of protecting
    that relationship and fostering robust discussion. See Mohawk Indus
    tries, Inc. v. Carpenter, 
    558 U.S.
    ___, ___ (2009) (slip op., at 7). Reiter
                        Cite as: 559 U. S. ____ (2010)                  17
    
                             Opinion of the Court
    
       Finally, we reject Milavetz’s contention that, narrowly
    construed, §526(a)(4) is impermissibly vague. Milavetz
    urges that the concept of abusive prefiling conduct is too
    indefinite to withstand constitutional scrutiny and that
    uncertainty regarding the scope of the prohibition will
    chill protected speech. We disagree.
       Under our reading of the statute, of course, the prohib
    ited advice is not defined in terms of abusive prefiling
    conduct but rather the incurrence of additional debt when
    the impelling reason is the anticipation of bankruptcy.
    Even if the test depended upon the notion of abuse, how
    ever, Milavetz’s claim would be fatally undermined by
    other provisions of the Bankruptcy Code, to which that
    concept is no stranger. As discussed above, the Code
    authorizes a bankruptcy court to decline to discharge
    fraudulent debts, see §523(a)(2), or to dismiss a case or
    convert it to a case under another chapter if it finds that
    granting relief would constitute abuse, see §707(b)(1).
    Attorneys and other professionals who give debtors bank
    ruptcy advice must know of these provisions and their
    consequences for a debtor who in bad faith incurs addi
    tional debt prior to filing. Indeed, §707(b)(4)(C) states that
    an attorney’s signature on bankruptcy filings “shall consti
    tute a certification that the attorney has” determined that
    the filing “does not constitute an abuse under [§707(b)(1)].”
    Against this backdrop, it is hard to see how a rule that
    narrowly prohibits an attorney from affirmatively advising
    a client to commit this type of abusive prefiling conduct
    could chill attorney speech or inhibit the attorney-client
    relationship. Our construction of §526(a)(4) to prevent
    only advice principally motivated by the prospect of bank
    
    —————— 
    
    ating the significance of such dialogue, we note that §526(a)(4), as
    
    narrowly construed, presents no impediment to “ ‘full and frank’ ” 
    
    discussions. Ibid. (quoting Upjohn Co. v. United States, 
    449 U.S. 383
    ,
    
    389 (1981)). 
    
    18      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                              STATES
    
                         Opinion of the Court 
    
    
    ruptcy further ensures that professionals cannot unknow
    ingly run afoul of its proscription.6 Because the scope of
    the prohibition is adequately defined, both on its own
    terms and by reference to the Code’s other provisions, we
    reject Milavetz’s vagueness claim.
      As the foregoing shows, the language of the statute,
    together with other evidence of its purpose, makes this
    narrow reading of §526(a)(4) not merely a plausible inter
    pretation but the more natural one. Accordingly, we reject
    the Eighth Circuit’s conclusion and hold that a debt relief
    agency violates §526(a)(4) only when the impetus of the
    advice to incur more debt is the expectation of filing for
    bankruptcy and obtaining the attendant relief. Because
    our reading of the statute supplies a sufficient ground for
    reversing the Court of Appeals’ decision, and because
    Milavetz challenges the constitutionality of the statute, as
    narrowed, only on vagueness grounds, we need not further
    consider whether the statute so construed withstands
    First Amendment scrutiny.
                              C
      Finally, we address the validity of §528’s challenged
    disclosure requirements. Our first task in resolving this
    ——————
      6 The hypothetical questions Milavetz posits regarding the permissi
    
    bility of advice to incur debt in certain circumstances, see Brief for
    Milavetz 48–51, are easily answered by reference to whether the
    expectation of filing for bankruptcy (and obtaining a discharge) im
    pelled the advice. We emphasize that awareness of the possibility of
    bankruptcy is insufficient to trigger §526(a)(4)’s prohibition. Instead,
    that provision proscribes only advice to incur more debt that is princi
    pally motivated by that likelihood. Thus, advice to refinance a mort
    gage or purchase a reliable car prior to filing because doing so will
    reduce the debtor’s interest rates or improve his ability to repay is not
    prohibited, as the promise of enhanced financial prospects, rather than
    the anticipated filing, is the impelling cause. Advice to incur additional
    debt to buy groceries, pay medical bills, or make other purchases
    “reasonably necessary for the support or maintenance of the debtor or a
    dependent of the debtor,” §523(a)(2)(C)(ii)(II), is similarly permissible.
                         Cite as: 559 U. S. ____ (2010)                  19
    
                             Opinion of the Court
    
    question is to determine the contours of Milavetz’s claim.
    Although the nature of its challenge is not entirely clear
    from the briefing or decisions below, counsel for Milavetz
    insisted at oral argument that this is “not a facial chal
    lenge; it’s an as-applied challenge.” Tr. of Oral Arg. 26.
    We will approach the question consistent with Milavetz’s
    characterization.7
       We next consider the standard of scrutiny applicable to
    §528’s disclosure requirements. The parties agree, as do
    we, that the challenged provisions regulate only commer
    cial speech. Milavetz contends that our decision in Cen
    tral Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of
    N. Y., 
    447 U.S. 557
     (1980), supplies the proper standard
    for reviewing these requirements. The Court in that case
    held that restrictions on nonmisleading commercial speech
    regarding lawful activity must withstand intermediate
    scrutiny—that is, they must “directly advanc[e]” a sub
    stantial governmental interest and be “n[o] more extensive
    than is necessary to serve that interest.” Id., at 566.
    Contesting Milavetz’s premise, the Government maintains
    that §528 is directed at misleading commercial speech.
    For that reason, and because the challenged provisions
    impose a disclosure requirement rather than an affirma
    tive limitation on speech, the Government contends that
    the less exacting scrutiny described in Zauderer governs
    our review. We agree.
       Zauderer addressed the validity of a rule of professional
    conduct that required attorneys who advertised contin
    gency-fee services to disclose in their advertisements that
    a losing client might still be responsible for certain litiga
    ——————
      7 In so doing, we note that our ability to evaluate §528’s validity as
    
    applied to Milavetz is constrained by the lack of a developed record.
    Because the parties have introduced no exhibits or other evidence to
    ground our analysis, we are guided in this preenforcement challenge
    only by Milavetz’s status—i.e., as a law firm or attorney—and its
    general claims about the nature of its advertisements.
    20     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                             STATES
    
                        Opinion of the Court 
    
    
    tion fees and costs. Noting that First Amendment protec
    tion for commercial speech is justified in large part by the
    information’s value to consumers, the Court concluded
    that an attorney’s constitutionally protected interest in not
    providing the required factual information is “minimal.”
    471 U. S., at 651. Unjustified or unduly burdensome
    disclosure requirements offend the First Amendment by
    chilling protected speech, but “an advertiser’s rights are
    adequately protected as long as disclosure requirements
    are reasonably related to the State’s interest in preventing
    deception of consumers.” Ibid.
       The challenged provisions of §528 share the essential
    features of the rule at issue in Zauderer. As in that case,
    §528’s required disclosures are intended to combat the
    problem of inherently misleading commercial advertise
    ments—specifically, the promise of debt relief without any
    reference to the possibility of filing for bankruptcy, which
    has inherent costs. Additionally, the disclosures entail
    only an accurate statement identifying the advertiser’s
    legal status and the character of the assistance provided,
    and they do not prevent debt relief agencies like Milavetz
    from conveying any additional information.
       The same characteristics of §528 that make it analogous
    to the rule in Zauderer serve to distinguish it from those
    at issue in In re R. M. J., 
    455 U.S. 191
     (1982), to which
    the Court applied the intermediate scrutiny of Central
    Hudson. The ethical rules addressed in R. M. J. prohib
    ited attorneys from advertising their practice areas in
    terms other than those prescribed by the State Supreme
    Court and from announcing the courts in which they were
    admitted to practice. See 455 U. S., at 197–198. Finding
    that the restricted statements were not inherently mis
    leading and that the State had failed to show that the
    appellant’s advertisements were themselves likely to
    mislead consumers, see id., at 205, the Court applied
    Central Hudson’s intermediate scrutiny and invalidated
                      Cite as: 559 U. S. ____ (2010)           21
    
                          Opinion of the Court
    
    the restrictions as insufficiently tailored to any substan
    tial state interest, 455 U. S., at 205–206. In so holding,
    the Court emphasized that States retain authority to
    regulate inherently misleading advertisements, particu
    larly through disclosure requirements, and it noted that
    advertisements for professional services pose a special risk
    of deception. See id., at 203, 207.
       Milavetz makes much of the fact that the Government
    in these consolidated cases has adduced no evidence that
    its advertisements are misleading. Zauderer forecloses
    that argument: “When the possibility of deception is as
    self-evident as it is in this case, we need not require the
    State to ‘conduct a survey of the . . . public before it [may]
    determine that the [advertisement] had a tendency to
    mislead.’ ” 471 U. S., at 652–653 (quoting FTC v. Colgate-
    Palmolive Co., 
    380 U.S. 374
    , 391–392 (1965)). Evidence
    in the congressional record demonstrating a pattern of
    advertisements that hold out the promise of debt relief
    without alerting consumers to its potential cost, see 1998
    Hearings, pt. III, at 86, 90–94, is adequate to establish
    that the likelihood of deception in this case “is hardly a
    speculative one,” 471 U. S., at 652.
       Milavetz alternatively argues that the term “debt relief
    agency” is confusing and misleading and that requiring its
    inclusion in advertisements cannot be “reasonably related”
    to the Government’s interest in preventing consumer
    deception, as Zauderer requires. Id., at 651. This conten
    tion amounts to little more than a preference on Milavetz’s
    part for referring to itself as something other than a “debt
    relief agency”—e.g., an attorney or a law firm. For several
    reasons, we conclude that this preference lacks any consti
    tutional basis. First, Milavetz offers no evidence to sup
    port its claim that the label is confusing. Because §528 by
    its terms applies only to debt relief agencies, the disclo
    sures are necessarily accurate to that extent: Only debt
    relief agencies must identify themselves as such in their
    22     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED
                             STATES
                        Opinion of the Court
    
    advertisements. This statement provides interested ob
    servers with pertinent information about the advertiser’s
    services and client obligations.
       Other information that Milavetz must or may include in
    its advertisements for bankruptcy-assistance services
    provides additional assurance that consumers will not
    misunderstand the term. The required statement that the
    advertiser “ ‘help[s] people file for bankruptcy relief’ ” gives
    meaningful context to the term “debt relief agency.” And
    Milavetz may further identify itself as a law firm or attor
    ney. Section 528 also gives Milavetz flexibility to tailor
    the disclosures to its individual circumstances, as long as
    the resulting statements are “substantially similar” to the
    statutory examples. §§528(a)(4) and (b)(2)(B).
       Finally, we reject Milavetz’s argument that §528 is not
    reasonably related to any governmental interest because it
    applies equally to attorneys who represent creditors, as
    Milavetz sometimes does. The required disclosures, Mi
    lavetz contends, would be counterfactual and misleading
    in that context. This claim is premised on an untenable
    reading of the statute. We think it evident from the defi
    nition of “assisted person”—which is stated in terms of the
    person’s debts, see §101(3)—and from the text and struc
    ture of the debt-relief-agency provisions in §§526, 527, and
    528 that those provisions, including §528’s disclosure
    requirements, govern only professionals who offer bank
    ruptcy-related services to consumer debtors. Section 528
    is itself expressly concerned with advertisements pertain
    ing to “bankruptcy assistance services,” “the benefits of
    bankruptcy,” “excessive debt, debt collection pressure, or
    inability to pay any consumer debt,” §§528(a)(3) and (b)(2).
    Moreover, like the other debt-relief-agency provisions, that
    section is codified in a subchapter of the Bankruptcy Code
    entitled “DEBTOR’S DUTIES AND BENEFITS.”                      
    11 U.S. C
    ., ch. 5, subch. II. In context, reading §528 to gov
    ern advertisements aimed at creditors would be as anoma
                     Cite as: 559 U. S. ____ (2010)           23
    
                         Opinion of the Court
    
    lous as the result of which Milavetz complains. Once
    again, we decline Milavetz’s invitation to adopt a view of
    the statute that is contrary to its plain meaning and would
    produce an absurd result.
       Because §528’s requirements that Milavetz identify
    itself as a debt relief agency and include certain informa
    tion about its bankruptcy-assistance and related services
    are “reasonably related to the [Government’s] interest in
    preventing deception of consumers,” Zauderer, 471 U. S.,
    at 651, we uphold those provisions as applied to Milavetz.
                                IV
      For the foregoing reasons, the judgment of the Court of
    Appeals for the Eighth Circuit is affirmed as to §§101(12A)
    and 528 and reversed as to §526(a)(4), and the cases are
    remanded for further proceedings consistent with this
    opinion.
                                                It is so ordered.
                     Cite as: 559 U. S. ____ (2010)           1
    
                         Opinion of SCALIA, J.
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                      Nos. 08–1119 and 08–1225
                             _________________
    
    
       MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                    PETITIONERS
    08–1119              v.
                   UNITED STATES
    
              UNITED STATES, PETITIONER
    08–1225               v.
        MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
    ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
               APPEALS FOR THE EIGHTH CIRCUIT
                            [March 8, 2010]
    
      JUSTICE SCALIA, concurring in part and concurring in
    the judgment.
      I join the opinion of the Court, except for footnote 3,
    which notes that the legislative history supports what the
    statute unambiguously says. The Court first notes that
    statements in the Report of the House Committee on the
    Judiciary “indicate concern with abusive practices under
    taken by attorneys.” Ante, at 6, n. 3. Perhaps, but only
    the concern of the author of the Report. Such statements
    tell us nothing about what the statute means, since (1) we
    do not know that the members of the Committee read the
    Report, (2) it is almost certain that they did not vote on
    the Report (that is not the practice), and (3) even if they
    did read and vote on it, they were not, after all, those who
    made this law. The statute before us is a law because its
    text was approved by a majority vote of the House and the
    Senate, and was signed by the President. Even indulging
    the extravagant assumption that Members of the House
    2       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                              STATES
    
                         Opinion of SCALIA, J. 
    
    
    other than members of its Committee on the Judiciary
    read the Report (and the further extravagant assumption
    that they agreed with it), the Members of the Senate could
    not possibly have read it, since it did not exist when the
    Senate passed the Bankruptcy Abuse Prevention and
    Consumer Protection Act of 2005. And the President
    surely had more important things to do.
      The footnote’s other source of legislative history is truly
    mystifying. For the proposition that “the legislative record
    elsewhere documents misconduct by attorneys” which was
    presumably the concern of Congress, the Court cites a
    reproduction of a tasteless advertisement that was (1) an
    attachment to the written statement of a witness, (2) in a
    hearing held seven years prior to this statute’s passage,
    (3) before a subcommittee of the House considering a
    different consumer bankruptcy reform bill that never
    passed.* “Elsewhere” indeed.
      The Court acknowledges that nothing can be gained by
    this superfluous citation (it admits the footnote is “unnec
    essary in light of the statute’s unambiguous language,”
    ante, at 6, n. 3). But much can be lost. Our cases have
    said that legislative history is irrelevant when the statu
    tory text is clear. See, e.g., United States v. Gonzales, 
    520 U.S. 1
    , 6 (1997); Connecticut Nat. Bank v. Germain, 
    503 U.S. 249
    , 254 (1992). The footnote advises conscientious
    attorneys that this is not true, and that they must spend
    time and their clients’ treasure combing the annals of
    legislative history in all cases: To buttress their case
    ——————
       * The Court protests that the earlier hearing was “part of the record
    cited by the 2005 House Report,” ante, at 6, n. 3. The page it cites,
    however, does nothing more than note that the earlier hearing took
    place, see H. R. Rep. No. 109–31, pt. 1, p. 7 (2005). Are we to believe
    that this brought to the attention of the committee (much less of the
    whole Congress) an attachment to the testimony of one of the witnesses
    at that long-ago hearing? Of course not. That legislative history shows
    what “Congress” intended is a fiction requiring no support in reality.
                      Cite as: 559 U. S. ____ (2010)             3
    
                          Opinion of SCALIA, J.
    
    where the statutory text is unambiguously in their favor;
    and to attack an unambiguous text that is against them.
    If legislative history is relevant to confirm that a clear text
    means what it says, it is presumably relevant to show that
    an apparently clear text does not mean what it seems to
    say. Even for those who believe in the legal fiction that
    committee reports reflect congressional intent, footnote 3
    is a bridge too far.
                     Cite as: 559 U. S. ____ (2010)           1
    
                        Opinion of THOMAS, J.
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                      Nos. 08–1119 and 08–1225
                             _________________
    
    
       MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                    PETITIONERS
    08–1119              v.
                   UNITED STATES
    
              UNITED STATES, PETITIONER
    08–1225               v.
        MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
    ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
               APPEALS FOR THE EIGHTH CIRCUIT
                            [March 8, 2010]
    
      JUSTICE THOMAS, concurring in part and concurring in
    the judgment.
      I concur in the judgment and join all but Part III–C of
    the Court’s opinion. I agree with the Court that 
    11 U.S. C
    . §528’s advertising disclosure requirements sur
    vive First Amendment scrutiny on the record before us. I
    write separately because different reasons lead me to that
    conclusion.
      I have never been persuaded that there is any basis in
    the First Amendment for the relaxed scrutiny this Court
    applies to laws that suppress nonmisleading commercial
    speech. See 44 Liquormart, Inc. v. Rhode Island, 
    517 U.S. 484
    , 522–523 (1996) (opinion concurring in part and con
    curring in judgment) (discussing Central Hudson Gas &
    Elec. Corp. v. Public Serv. Comm’n of N. Y., 
    447 U.S. 557
    (1980)). In this case, the Court applies a still lower stan
    dard of scrutiny to review a law that compels the disclo
    sure of commercial speech—i.e., the rule articulated in
    2      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                             STATES
    
                       Opinion of THOMAS, J. 
    
    
    Zauderer v. Office of Disciplinary Counsel of Supreme
    Court of Ohio, 
    471 U.S. 626
     (1985), that laws that require
    the disclosure of factual information in commercial adver
    tising may be upheld so long as they are “reasonably
    related” to the government’s interest in preventing con
    sumer deception, id., at 651.
       I am skeptical of the premise on which Zauderer rests—
    that, in the commercial-speech context, “the First Amend
    ment interests implicated by disclosure requirements are
    substantially weaker than those at stake when speech is
    actually suppressed,” id., at 652, n. 14; see id., at 650
    (citing “material differences between disclosure require
    ments and outright prohibitions on speech”). We have
    refused in other contexts to attach any “constitutional
    significance” to the difference between regulations that
    compel protected speech and regulations that restrict it.
    See, e.g., Riley v. National Federation of Blind of N. C.,
    Inc., 
    487 U.S. 781
    , 796–797 (1988). I see no reason why
    that difference should acquire constitutional significance
    merely because the regulations at issue involve commer
    cial speech. See Glickman v. Wileman Brothers & Elliott,
    Inc., 
    521 U.S. 457
    , 480–481 (1997) (Souter, J., dissenting)
    (arguing that “commercial speech is . . . subject to [this]
    First Amendment principle: that compelling cognizable
    speech officially is just as suspect as suppressing it, and is
    typically subject to the same level of scrutiny”); id., at 504
    (THOMAS, J., dissenting); cf. United States v. United Foods,
    Inc., 
    533 U.S. 405
    , 419 (2001) (THOMAS, J., concurring)
    (stating that regulations that compel funding for commer
    cial advertising “must be subjected to the most stringent
    First Amendment scrutiny”).
       Accordingly, I would be willing to reexamine Zauderer
    and its progeny in an appropriate case to determine
    whether these precedents provide sufficient First Amend
    ment protection against government-mandated disclo
                         Cite as: 559 U. S. ____ (2010)                     3
    
                             Opinion of THOMAS, J.
    
    sures.1 Because no party asks us to do so here, however, I
    agree with the Court that the Zauderer standard governs
    our review of the challenge to §528 brought by the Milav
    etz law firm and the other plaintiffs in this action (herein
    after Milavetz).
      Yet even under Zauderer, we “have not presumptively
    endorsed” laws requiring the use of “government-scripted
    disclaimers” in commercial advertising. See Borgner v.
    Florida Bd. of Dentistry, 
    537 U.S. 1080
    , 1082 (2002)
    (THOMAS, J., dissenting from denial of certiorari). Zaud
    erer upheld the imposition of sanctions against an attor
    ney under a rule of professional conduct that required
    advertisements for contingency-fee services to disclose
    that losing clients might be responsible for litigation fees
    and costs. See 471 U. S., at 650–653. Importantly, how
    ever, Zauderer’s advertisement was found to be misleading
    on its face, and the regulation in that case did not man
    date the specific form or text of the disclosure. Ibid. Thus,
    Zauderer does not stand for the proposition that the gov
    ernment can constitutionally compel the use of a scripted
    disclaimer in any circumstance in which its interest in
    ——————
       1 I have no quarrel with the principle that advertisements that are
    
    false or misleading, or that propose an illegal transaction, may be
    proscribed. See 44 Liquormart, Inc. v. Rhode Island, 
    517 U.S. 484
    , 520
    (1996) (opinion concurring in part and concurring in judgment).
    Furthermore, I acknowledge this Court’s longstanding assumption that
    a consumer-fraud regulation that compels the disclosure of certain
    factual information in advertisements may intrude less significantly on
    First Amendment interests than an outright prohibition on all adver
    tisements that have the potential to mislead. See, e.g., Virginia Bd. of
    Pharmacy v. Virginia Citizens Consumer Council, Inc., 
    425 U.S. 748
    ,
    771–772 (1976); Zauderer v. Office of Disciplinary Counsel of Supreme
    Court of Ohio, 
    471 U.S. 626
    , 651–652, n. 14 (1985); Riley v. National
    Federation of Blind of N. C., Inc., 
    487 U.S. 781
    , 796, n. 9 (1988);
    Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 
    447 U.S. 557
    , 565 (1980). But even if that assumption is correct, I doubt
    that it justifies an entirely different standard of review for regulations
    that compel, rather than suppress, commercial speech.
    4     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                            STATES
    
                      Opinion of THOMAS, J. 
    
    
    preventing consumer deception might plausibly be at
    stake. In other words, a bare assertion by the government
    that a disclosure requirement is “intended” to prevent
    consumer deception, standing alone, is not sufficient to
    uphold the requirement as applied to all speech that falls
    within its sweep. See ante, at 20.
       Instead, our precedents make clear that regulations
    aimed at false or misleading advertisements are permissi
    ble only where “the particular advertising is inherently
    likely to deceive or where the record indicates that a par
    ticular form or method of advertising has in fact been
    deceptive.” In re R. M. J., 
    455 U.S. 191
    , 202 (1982) (em
    phasis added); see Zauderer, supra, at 651 (“recogniz[ing]
    that unjustified or unduly burdensome disclosure re
    quirements might offend the First Amendment”). There
    fore, a disclosure requirement passes constitutional mus
    ter only to the extent that it is aimed at advertisements
    that, by their nature, possess these traits. See R. M. J.,
    supra, at 202; Ibanez v. Florida Dept. of Business and
    Professional Regulation, Bd. of Accountancy, 
    512 U.S. 136
    , 143, 146–147 (1994).
       I do not read the Court’s opinion to hold otherwise. See
    ante, at 20. Accordingly, and with that understanding, I
    turn to the question whether Milavetz’s challenge to
    §528’s disclosure requirements survives Zauderer scrutiny
    on the record before us.
       As the Court notes, the posture of Milavetz’s challenge
    inhibits our review of its First Amendment claim. See
    ante, at 19, n. 7. Milavetz challenged §528’s constitution
    ality before the statute had ever been enforced against any
    of the firm’s advertisements. Although Milavetz purports
    to challenge §528 only “ ‘as-applied’ ” to its own advertis
    ing, see ante, at 19, it did not introduce any evidence or
    exhibits to substantiate its claim. Thus, no court has seen
    a sampling of Milavetz’s advertisements or even a declara
    tion describing their contents and the media through
                         Cite as: 559 U. S. ____ (2010)                   5
    
                             Opinion of THOMAS, J.
    
    which Milavetz seeks to transmit them. As a consequence,
    Milavetz’s nominal “as applied” challenge appears strik
    ingly similar to a facial challenge.
       We generally disapprove of such challenges because
    they “often rest on speculation” and require courts to
    engage in “ ‘premature interpretation of statutes on the
    basis of factually barebones records.’ ” Washington State
    Grange v. Washington State Republican Party, 
    552 U.S. 442
    , 450 (2008) (quoting Sabri v. United States, 
    541 U.S. 600
    , 609 (2004)). Milavetz’s claim invites the same prob
    lems. Milavetz alleges that §528’s disclosure require
    ments are unconstitutional as applied to its advertise
    ments because its advertisements are not misleading and
    because the disclaimer required by §528 will create, rather
    than reduce, confusion for Milavetz’s potential clients.
    That may well be true. But because no record evidence of
    Milavetz’s advertisements exists to guide our review, we
    can only speculate about the ways in which the statute
    might be applied to Milavetz’s speech.
       When forced to determine the constitutionality of a
    statute based solely on such conjecture, we will uphold the
    law if there is any “conceivabl[e]” manner in which it can
    be enforced consistent with the First Amendment. Wash
    ington State Grange, supra, at 456. In this case, both
    parties agree that §528’s disclosure requirements cover, at
    a minimum, deceptive advertisements that promise to
    “ ‘wipe out’ ” debts without mentioning bankruptcy as the
    means of accomplishing this goal.2 Brief for Milavetz 82,
    ——————
      2 Atoral argument, Milavetz’s counsel declined to describe Milavetz’s
    challenge to §528 as a facial overbreadth claim, Tr. of Oral Arg. 25–26,
    and Milavetz’s briefs make no such contention. But even viewing
    Milavetz’s argument as a claim that §528 is facially overbroad because
    it applies to nonmisleading advertisements for bankruptcy-related
    services, such an argument must fail. First, as noted, Milavetz ac
    knowledges that §528 can be constitutionally applied to deceptive
    bankruptcy-related advertisements and, thus, at least one “set of
    6       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED 
    
                              STATES
    
                        Opinion of THOMAS, J. 
    
    
    86; Brief for United States 60–62. As a result, there is at
    least one set of facts on which the statute could be consti
    tutionally applied. Thus, I agree with the Court that
    Milavetz’s challenge to §528 must fail.
    
    
    
    
    —————— 
    
    circumstances exists under which [§528] would be valid.” United States 
    
    v. Salerno, 
    481 U.S. 739
    , 745 (1987). Second, Milavetz does not at
    tempt to argue that §528’s unconstitutional applications are “substan
    tial” in number when judged in relation to this “plainly legitimate
    sweep.” Washington State Grange v. Washington State Republican
    Party, 
    552 U.S. 442
    , 449–450, and n. 6 (2008) (internal quotation
    marks omitted).
    

Document Info

DocketNumber: 08-1119

Citation Numbers: 559 U.S. 229, 130 S. Ct. 1324, 176 L. Ed. 2d 79, 2010 U.S. LEXIS 2206

Filed Date: 3/8/2010

Precedential Status: Precedential

Modified Date: 3/30/2018

Authorities (29)

Mohawk Industries, Inc. v. Carpenter , 558 U.S. 100 ( 2009 )

Hersh v. US Ex Rel. Mukasey , 553 F.3d 743 ( 2008 )

Strang v. Bradner , 114 U.S. 555 ( 1885 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

In Re Wood and Henderson , 210 U.S. 246 ( 1908 )

Conrad, Rubin & Lesser v. Pender , 289 U.S. 472 ( 1933 )

FTC v. Colgate-Palmolive Co. , 380 U.S. 374 ( 1965 )

Va. Pharmacy Bd. v. Va. Consumer Council , 425 U.S. 748 ( 1976 )

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of ... , 447 U.S. 557 ( 1980 )

Upjohn Co. v. United States , 449 U.S. 383 ( 1981 )

In Re RMJ , 455 U.S. 191 ( 1982 )

United States v. Security Industrial Bank , 459 U.S. 70 ( 1982 )

Zauderer v. Office of Disciplinary Counsel of Supreme Court ... , 471 U.S. 626 ( 1985 )

United States v. Salerno , 481 U.S. 739 ( 1987 )

Riley v. National Federation of Blind of NC, Inc. , 487 U.S. 781 ( 1988 )

Connecticut Nat. Bank v. Germain , 503 U.S. 249 ( 1992 )

United States v. Granderson , 511 U.S. 39 ( 1994 )

Ibanez v. Florida Dept. of Business and Professional ... , 512 U.S. 136 ( 1994 )

Heintz v. Jenkins , 514 U.S. 291 ( 1995 )

44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484 ( 1996 )

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