Mason v. Florida Bar, No. 99-2138

• Decision Date: 06 April 2000
• Docket Number: No. 99-2138
• Citation: 208 F.3d 952
• Parties: (11th Cir. 2000) Steven G. MASON, Plaintiff-Appellant, v. FLORIDA BAR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 952

208 F.3d 952 (11th Cir. 2000)

Steven G. MASON, Plaintiff-Appellant, v. FLORIDA BAR, Defendant-Appellee.

No. 99-2138.

United States Court of Appeals, Eleventh Circuit.

April 6, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.

DUBINA, Circuit Judge:

This case involves facial and as applied challenges to Rule 4-7.2(j) of the Rules Regulating the Florida Bar ("Rule 4-7.2(j)"), which prohibits statements made by lawyers in advertisements or written communications that are "self laudatory" or that describe or characterize the quality of legal services. In particular, Appellant Steven G. Mason ("Mason") challenges the application of Rule 4-7.2(j) as a violation of his First Amendment rights and charges that Rule 4-7.2(j) is void-for-vagueness under the First Amendment as it applies to the states via the Due Process Clause of the Fourteenth Amendment.

I.

Mason, a criminal defense attorney practicing in Orlando, Florida, submitted a proof of his yellow pages advertisement to the Bar for an ethics advisory opinion.¹ In pertinent part, the advertisement states that Mason is " 'AV' Rated, the Highest Rating Martindale-Hubbell National Law Directory." The Bar issued an opinion that the advertisement violated Rule 4-7.2(j) ² which provides: "Self-Laudatory Statements. A lawyer shall not make statements that are merely self-laudatory or statements describing or characterizing the quality of the lawyer's services in advertisements and written communication...." The Bar notified Mason that his advertisement must include a "full explanation as to the meaning of the [Martindale-Hubbell] AV rating and how the publication chooses the participating attorneys." The Bar further indicated that the explanation must state "that the ratings and participation are based 'exclusively on ... opinions expressed by ... confidential sources' and that these publications do not undertake to rate all Florida attorneys." (internal quotations and ellipses in original).

After exhausting his administrative appeals, Mason filed suit in district court alleging that the Bar's position violated the First Amendment and Rule 4-7.2(j) was void for vagueness under the Due Process Clause of the Fifth and Fourteenth Amendments. Mason sought a declaratory judgment from the district court declaring Rule 4-7.2(j) unconstitutional, as well as a permanent injunction enjoining the Bar from enforcing the Rule.

From the outset, the Bar has acknowledged that Mason is "AV" rated by Martindale-Hubbell, but insists that the full statement " 'AV' Rated, the Highest Rating Martindale-Hubbell National Law Directory" is misleading or potentially misleading. The district court conducted a mini-trial wherein the Bar presented only one witness in support of its position. Elizabeth Tarbert ("Ms.Tarbert"), the Bar's director of ethics and advertising, testified to the Bar's interests in promulgating the rule, and its belief that Mason's reference to Martindale Hubbell would mislead the unsophisticated public. The district court found in favor of the Bar and upheld Rule 4-7.2(j) against both of Mason's challenges.

II.

This court reviews de novo the question of whether state restrictions on commercial speech are constitutional. See Falanga v. State Bar of Georgia, 150 F.3d 1333, 1335-36 (11th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1496, 143 L.Ed.2d 651 (1999). The determination of whether a statute is unconstitutionally vague is also subject to de novo review in this court. See Wilson v. State Bar of Georgia, 132 F.3d 1422, 1427 (11th Cir.1998).

A.

On appeal, Mason contends that the Bar has no substantial state interest in regulating his advertisement because his advertisement is neither inherently nor potentially misleading. Mason further argues that even if the state does have a substantial interest, the Bar failed to produce sufficient evidence to justify its restrictions on his speech.

Commercial speech, expression inextricably related to the economic interests of the speaker and audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution. See Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993); Peel v. Attorney Registration & Disciplinary Comm'n., 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Board of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Shapero v. Kentucky Bar Ass'n., 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48L.Ed.2d 346 (1976). Because of the value inherent in truthful, relevant information, a state may ban only false, deceptive, or misleading commercial speech. See Ibanez, 512 U.S. at 142, 114 S.Ct. 2084. However, a state may restrict commercial speech that is not false, deceptive, or misleading upon a showing that the restriction "directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest." Id. at 142-43, 114 S.Ct. 2088-89.

Lawyer advertising is a constitutionally protected form of commercial speech, but like any other form of commercial speech, a state may regulate it to protect the public. See Bates v. State Bar of Arizona, 433 U.S. 350, 383-84, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). This court reviews the constitutionality of a state's restrictions on lawyer advertising pursuant to the four-part test originally set forth by the Supreme Court in Central Hudson. See 447 U.S. at 563-66, 100 S.Ct. 2343. Having determined from the outset that Mason's speech as truthful information is protectable commercial speech, satisfying Central Hudson 's first prong, we need only apply the latter three prongs of the Central Hudson test to determine whether the state's regulation of this speech is constitutional. The Central Hudson test inquires as to (1) whether the state's interests in limiting the speech is substantial; (2) whether the challenged regulation advances these interests in a direct and material way; and (3) whether the extent of the restriction on protected speech is in reasonable proportion to the interests served. See id; Edenfield, 507 U.S. at 767, 113 S.Ct. 1792. In applying Central Hudson, it is important to recall that "[t]he four parts of the Central Hudson test are not entirely discrete. All are important and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three." Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 119 S.Ct. 1923, 1930, 144 L.Ed.2d 161 (1999).

1.

Turning first to the government's interests in regulating Mason's commercial speech, the Bar advances three interests as "substantial government interests." The Bar first asserts an interest in ensuring that attorney advertisements are not misleading. Indeed, the Supreme Court confirmed long ago that the state has both a general interest in protecting consumers, as well as a special responsibility to regulate lawyers. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Thus, the Bar's first asserted interest is substantial, meaning that the Bar may regulate Mr. Mason's commercial speech if it can show that the regulation directly addresses an actual harm.

The Bar also asserts an interest in ensuring that the public has access to relevant information to assist in the comparison and selection of attorneys. Again, there is little question that the state, as part of its duty to regulate attorneys, has an interest in ensuring and encouraging the flow of helpful relevant information about attorneys. See Peel, 496 U.S. at 110, 110 S.Ct. 2281 ("Information about certification and specialties facilitates the consumer's access to legal services and thus better serves the administration of justice."). Accordingly, the Bar's second asserted interest is also substantial.

Finally, the Bar contends that it has an interest in encouraging attorney rating services to use objective criteria. The Florida Bar offers no reason for its preference for objective criteria over subjective criteria, and the existing case law contributes little additional guidance on the matter. Because we fail to see the value in the distinction between objective and subjective criteria in the specific context before us, we must reject the Bar's third asserted "substantial" interest.

2.

Although the Bar has asserted two substantial interests in the abstract, its restrictions on Mason's speech do not necessarily serve those interests. The penultimate prong of the Central Hudson test requires a state's restrictions on speech to target an identifiable harm and mandates that the state's restrictions on speech mitigate against such harm in a direct and effective manner. See Ibanez, 512 U.S. at 146, 114 S.Ct. 2084; Edenfield, 507 U.S. at 773, 113 S.Ct. 1792. A state cannot satisfy its burden to demonstrate that the harms it recites are real and that its restrictions will alleviate the identified harm by rote invocation of the words "potentially misleading." See Ibanez, 512 U.S. at 146, 114 S.Ct. 2084 (quoting Edenfield, 507 U.S. at 771, 113 S.Ct. 1792).

The Bar does not view the statement that an attorney is " 'AV' Rated" as "potentially misleading." In fact, the Bar permits reference to one's "AV" rating without a disclaimer and explicitly...