Jacobs v. The Florida Bar

• Decision Date: 10 April 1995
• Docket Number: No. 93-2933,93-2933
• Citation: 50 F.3d 901
• Parties: , 23 Media L. Rep. 1718 Harry N. JACOBS, Plaintiff, Richard R. Mulholland; David W. Singer, Plaintiffs-Appellants, v. THE FLORIDA BAR; John F. Harkness, Jr., Defendants-Appellees, Stephen H. Grimes; Supreme Court of Florida; James Fox Miller, President of the Florida Bar; Leander J. Shaw, Jr., et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 901

50 F.3d 901

63 USLW 2671, 23 Media L. Rep. 1718

Harry N. JACOBS, Plaintiff, Richard R. Mulholland; David W. Singer, Plaintiffs-Appellants, v. THE FLORIDA BAR; John F. Harkness, Jr., Defendants-Appellees, Stephen H. Grimes; Supreme Court of Florida; James Fox

Miller, President of the Florida Bar; Leander J.

Shaw, Jr., et al., Defendants.

No. 93-2933.

United States Court of Appeals, Eleventh Circuit.

April 10, 1995.

As Corrected April 20, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied June 16, 1995. ^*

Bruce Rogow and Beverly A. Pohl, Ft. Lauderdale, FL, for appellants.

Robert A. Butterworth, Atty. Gen., George L. Waas, Asst. Atty. Gen., Office of the Atty. Gen., Paul F. Hill, The Florida Bar, Tallahassee, FL, and Thomas C. MacDonald, Jr., Gregory P. Hansel, Shakleford, Farrior, Stallings & Evans, Tampa, FL, Alan C. Sundberg, Carlton, Fields, et al., Tallahassee, FL, Sylvia H. Walbolt, Carlton, Fields, Ward, Emmanuel, Smith & Cutter, St. Petersburg, FL, for FL Supreme Court.

Appeal from the United States District Court for the Northern District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and GODBOLD, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This appeal arises out of Appellants' First and Fourteenth Amendment challenge to certain rules promulgated by the Florida Bar governing attorney advertising. Appellants appeal from the district court's order granting Appellees' ¹ motion for summary judgment. The issues we address today are narrow: whether Appellants have standing to challenge the rules, and if so, who bears the burden of proving the constitutionality of the rules? We also must determine whether summary judgment was proper on a vagueness challenge to one of the rules. We hold that Appellants have standing to bring their as-applied challenge to the rules and that Appellees bear the burden of proving that the rules are constitutional; we also remand to the district court for a determination of whether summary judgment is appropriate with respect to Appellants' vagueness challenge. Accordingly, we REVERSE the grant of summary judgment and REMAND for proceedings consistent with this opinion.

The Florida Supreme Court adopted amended rules promulgated by the Florida Bar, which regulate attorney advertising. See The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar--Advertising Issues, 571 So.2d 451 (Fla.1990). Appellants Richard R. Mulholland and David W. Singer are members of the Florida Bar. They brought suit in federal district court, pursuant to 42 U.S.C. Secs. 1983, 1988, and 28 U.S.C. Secs. 2201-02, seeking an injunction prohibiting the enforcement of certain rules and seeking a declaratory judgment that these rules are unconstitutional. ² Specifically, Appellants challenge the following rules: ³ (1) the "testimonial rule," prohibiting testimonials in advertising; ⁴ (2) the "dramatization rule," prohibiting dramatizations in advertising; ⁵ (3) the "single voice rule," mandating that in television and radio, only one voice be used, with no background sound other than instrumental music and that the voice not be one of a recognizable celebrity; ⁶ and (4) the "illustration rule." ⁷ Appellants assert that the first three rules infringe upon their First Amendment rights because they operate as a total ban on a method of advertising, regardless of whether the content of an individual advertisement using that method is misleading or otherwise improper. In their complaint, Appellants allege that they have in the past used advertisements which would now be violative of these three rules and would like to continue to do so. ⁸ In its answer, the Florida Bar admitted that "some of the plaintiffs have used advertisements that would be violative of the present Rules Regulating The Florida Bar," and that "plaintiffs are subject to potential discipline in accord with the Rules Regulating The Florida Bar if they use advertisements not in compliance with the Rules." ⁹

In addition to challenging three rules as unconstitutional prohibitions on certain advertising methods, Appellants also contend that the illustration rule is unconstitutionally vague in violation of the Fourteenth Amendment because it does not give sufficient notice as to which illustrations violate the rule. Appellants aver in their complaint that "[t]hey wish to use illustrations but are unsure of when one becomes 'factually substantiated.' "

Following extensive discovery, Appellants filed a motion in limine seeking to place the burden of demonstrating that the rules are justified upon Appellees. The district court held that Appellants sought a facial invalidation of the rules, as they had not submitted any proposed advertisements to the court for review, and thus, Appellants bore the burden of "convinc[ing] this court that facial invalidation is appropriate because the rules can never be constitutionally applied under any circumstances."

Appellants conceded that they could not meet this burden, as the state clearly could ban advertisements using the prohibited methods if the content of an individual advertisement was misleading. ¹⁰

Following this concession, the district court granted Appellees' motion for summary judgment, reasoning that because Appellants sought to mount a facial challenge to the rules, there was no "justiciable controversy on the record as fashioned by Plaintiffs' complaint."

I.

As a threshold issue, we must determine whether Appellants have standing to bring this suit. "Article III ... gives the federal courts jurisdiction over only 'cases and controversies,' and the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990).

Whether Appellants have standing to challenge the rules is a legal issue subject to de novo review. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 683, 126 L.Ed.2d 651 (1994). When an attack on standing occurs via a motion for summary judgment, the plaintiff "must 'set forth' by affidavit or other evidence 'specific facts' ... which for purposes of the summary judgment motion will be taken to be true." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130 2137, 119 L.Ed.2d 351 (1992) (quoting Fed.R.Civ.P. 56(e)).

To establish standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). ¹¹ A plaintiff stating that he "intends to engage in a specific course of conduct 'arguably affected with a constitutional interest,' ... does not have to expose himself to enforcement to be able to challenge the law." ACLU v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir.1993) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979)). Rather, a plaintiff has standing if he "demonstrate[s] 'a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement.' " Graham v. Butterworth, 5 F.3d 496, 499 (11th Cir.1993) (quoting ACLU v. The Florida Bar, 999 F.2d at 1492), cert. denied, --- U.S. ----, 114 S.Ct. 2136, 128 L.Ed.2d 866 (1994). This showing may be accomplished by an allegation "that either (1) he was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution." ACLU v. The Florida Bar, 999 F.2d at 1492.

Appellants allege that they had used advertisements in the past that violate the new rules, and that, but for the adoption of the rules, they would continue to do so. Appellees, both in their answer and in the joint pre-trial stipulation, admit that Appellants advertise via television, radio, newspapers, and the telephone book yellow pages and that Appellants "have used advertisements that would be violative of the present Rules Regulating The Florida Bar." Appellees also admit that Appellants "are subject to potential discipline in accord with the Rules Regulating The Florida Bar if they use advertisements not in compliance with the Rules." After considering both the pleadings and the admissions in this case, we conclude that Appellants have shown that they face a credible threat of prosecution and thus have standing to bring this claim. See id. (when "alleged injury is one of self-censorship, the likelihood of disciplinary action by the Bar ... is an important factor in determining whether [plaintiff] reasonably believed that he had to forgo what he considered to be constitutionally protected speech in order to avoid disciplinary charges being brought against him.").

Our conclusion finds support in similar cases in which a plaintiff asserted that but for the challenged rule, he or she would engage in conduct prohibited by the restriction. ¹²

For example, in United States v. Edge Broadcasting Co., --- U.S. ----, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993), the Court heard a challenge to a federal statute prohibiting radio stations licensed in states which outlaw the lottery from advertising that prohibited activity. ¹³ Edge alleged that it lost a substantial amount of money because its fear of prosecution "caused it to refrain from broadcasting any advertisements promoting the Virginia lottery." Edge Broadcasting Co. v. United States, 732 F.Supp. 633, 635 (E.D.Va.1990). Edge had standing to pursue its claim even though it had "not been threatened with prosecution." Id.

Similarly, in Edenfield v. Fane, --- U.S. ----, ----, 113 S.Ct. 1792, 1797, 123 L.Ed.2d 543 (1993), the Court entertained Fane's challenge to a Florida law prohibiting certified public accountants from direct, in-person solicitation of clients; Fane had alleged that "but for the prohibition, he would seek clients through personal solicitation." ¹⁴

Likewise, in McHenry v....