BETH BLOOM, District Judge.
This matter is before the Court upon the Motion for Summary Judgment, ECF No. [28] (the "Motion"), filed by Plaintiffs Robert Rubenstein and Rubenstein Law, P.A. ("Plaintiffs" or "Rubenstein"). Defendants The Florida Bar and Arlene K. Sankel ("Defendants" or the "Bar") timely responded, ECF No. [36] (the "Response"), and Plaintiffs timely replied, ECF No. [38]. The Court has reviewed the Motion, all supporting and opposing filings and submissions, and the record in the case. For the reasons that follow, Plaintiffs' Motion for Summary Judgment is
Through this action, Plaintiffs challenge on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar. As a result, Plaintiffs seek injunctive and declaratory relief.
The rules regulating attorney advertising in Florida have long prohibited or restricted reference to past results. See Harrell v. The Florida Bar, 608 F.3d 1241, 1248 (11th Cir.2010). In 1997, a Task Force convened by the Bar recommended a complete ban on references to past successes or results in attorney advertising in indoor or outdoor display, television and radio media. The Task Force stated that
ECF No. [29-2] Exh. 1, The Florida Bar Joint Presidential Advertising Task Force, Final Report & Recommendations (May 1997) ("1997 Task Force Report") at 13-14. Most "computer-accessed communications," such as attorney or law-firm websites and unsolicited email communications, were separately regulated and did not contain the blanket ban on the use of past results. 1997 Task Force Report at 24-25, 27. The Task Force's findings were based on a multipart study, which included surveys, focus groups and data analysis, but the Report did not link its position and recommendations regarding past results advertising to any specific data or findings. See ECF No. [29-2] Exhs. 2, 3 (1997 Task Force Survey Results and Executive Summary). In 1999, the Supreme Court of Florida adopted the proposed rules. See Amendments to Rules Regulating the Florida Bar-Advertising Rules, 762 So.2d 392 (Fla.1999).
In 2004, the Bar recommended only minor changes to its rules pertaining to attorney advertising. Thereafter, in 2007, the Supreme Court of Florida directed the Bar to "undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising." In re Amendments to the Rules Regulating The Florida Bar — Advertising, 971 So.2d 763, 765 (Fla.2007). The Bar presented its petition to comprehensively amend the rules in 2011. See ECF No. [29-3] Exh. 5, Petition to Amend the Rules Regulating The Florida Bar — Subchapter 4-7, Lawyer Advertising Rules (Jul. 5, 2011) ("2011 Petition").
In January 2013, the Supreme Court of Florida adopted a completely revised set of attorney advertising rules as proposed by the Bar. See In re Amendments to the Rules Regulating The Florida Bar, 108 So.3d 609 (Fla.2013). The new rules for the first time permitted attorney advertising to reference past results so long as statements regarding such results were "objectively verifiable." Rule 4-7.13, Rules Reg. Fla. Bar (2013) (the "Rules"). The Rule in question provides, in relevant part,
Rule 4-7.13(b)(2).
Id. at 9-10. Justifying the new rules permitting the use of past results in advertising, the Bar highlighted that "The U.S. Supreme Court has generally struck down regulations restricting advertising truthful information;" that "[o]f those responding to the survey on public perception of lawyer advertising, 74% indicate that past results are an important attribute in choosing a lawyer[; i]t is clear that the public wants this information available to them;" and that "[m]ost of those Florida Bar members who provided written and oral comments also noted that the lawyer advertising rules should not prohibit truthful statements regarding past results." Id. at 13-14. The Bar further explained that "there is no reason why any communications seeking legal employment should be treated differently based upon the medium of the advertising or whether the person requested the information." Id. at 13.
Attorneys governed by the Rules are required to submit all non-exempt advertisements to the Bar for evaluation as to rule-compliance. Rule 4-7.19, Rules Reg. Fla. Bar (2013). An attorney may obtain an advisory opinion from the Bar concerning the compliance of a contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory opinions "are advisory only and are not the basis for action by [the Bar's] grievance committees." Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation § 1 (2002) ("Opinion Procedures"). The Bar must advise the attorney as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of Noncompliance. Rule 4-7.19. The Bar may subsequently change its finding of compliance and must then provide Notification of Noncompliance. Id. A finding of compliance by the Bar is binding on the Bar in any subsequent grievance proceeding, such
Evaluation of attorney advertising submissions are handled by the Bar's Ethics and Advertising Department. Notices and opinions issued by the Ethics and Advertising Department under Rule 4-7.19 may be appealed to the Bar's Standing Committee on Advertising, and from there to the Bar's Board of Governors. Opinion Procedures §§ 3(c), 5(a).
The Bar's Lawyer Regulation Department is responsible for the investigation and prosecution of ethics complaints and violations of the Rules, including those regulating attorney advertisement. The Ethics and Advertising Department has no separate authority to commence disciplinary investigations or proceedings. ECF No. [31-3] ("First Tarbert Decl.") ¶ 3. According to the Director of the Lawyer Regulation Department, the Department "does not investigate failure to abide by advertising guidelines or advisory opinions issued by the Ethics and Advertising Department of the Bar and does not initiate disciplinary proceedings based upon failure to follow guidelines or advisory opinions." ECF No. [31-7] ("Berry Decl.") ¶ 2.
Relying on the newly amended Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. ECF No. [31-3] ("First Tarbert Decl.") ¶ 5. The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. Id. ¶ 5. Plaintiffs' advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words "COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case." See ECF No. [31-4] at 7-9 ("May 2013 Letter"). Critically, the Bar's notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against "false and misleading" attorney advertising. Id.
In early 2014, the Bar's Board of Governors issued new "Guidelines for Advertising Past Results." ECF No. [29-3] Exh. 6 ("Guidelines"). The Guidelines were issued "to assist lawyers in complying with these requirements [the relevant Rules] when advertising past results." Id. The Guidelines provide that:
The American Bar Association's Model Rules of Professional Conduct impose no blanket restrictions specific to references to past results. ABA Model Rules of Prof'l Conduct R. 7.1. The vast majority of states follow the ABA's approach, but six states have added the requirement that the reference to past results be accompanied by a disclaimer. See Mo. Rules of Prof'l Conduct R. 4-7.1(c); N.M. Rules of Prof'l Conduct R. 16-701(A)(4); N.Y.Code of Prof'l Resp. DR 2-101(e); S.D. Rules of Prof'l Conduct R. 7.1(c)(4); Tex. Disciplinary Rules of Prof'l Conduct R. 7.02(a)(2); Va. Rules of Prof'l Conduct R. 7.2(a)(3). Plaintiffs state, and the Bar does not dispute, that no state imposes a prohibition on past results entirely in any specific form of media.
Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had withdrawn its prior approval of multiple advertisements. See ECF No. [29-3] Exh. 7 ("Withdrawal Letter"). The Withdrawal Letter explained that "subsequent to the issuance to you [Plaintiffs] of the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule 4-7.13(b)(2) regarding past results." Id. at 1. The Bar then stated that:
Id. at 1. The Withdrawal Letter further instructed that "[r]eferences to past results generally may not be advertised in indoor and outdoor display media (billboards and other signs) or in television and radio advertisements. You may not include the reference to past results in the advertisement(s) as they appear in your submission in these media." Id. at 3. It advised that "[u]se of an advertisement that does not comply with the lawyer advertising rules past the time period noted above [of thirty days] may result in disciplinary action," but explained that "[t]his letter does not constitute disciplinary action, nor does it mean that the bar has opened an investigation." Id. at 4.
Plaintiffs initiated this action in March 2014. Plaintiffs have continued to disseminate the subject advertisements.
In June 2014, the Bar notified Plaintiffs that "[i]t appears you[] ha[ve] failed to comply with the Rules of Professional Conduct with respect to your advertising" and that the matter had been referred to Bar counsel "to initiate disciplinary proceedings." ECF No. [29-3] Exh. 8 ("June 2014 Letter") at 1. The Bar's June 2014 Letter specified the same advertisement language identified in the Withdrawal Letter, and paired it with violation of the Rules' regulation of statements regarding past results.
Sometime after both the adoption of the revised Rules and the Bar's issuance of the Guidelines — exactly when is not clear from the record — the Bar "bec[a]me concerned that advertisements ... that contained statements that lawyers or law firms had gotten clients recoveries in large dollar amounts ... might be misleading to the average consumer." ECF No. [32-1] ("Second Tarbert Decl.") ¶¶ 3-4.
In its cross-motion for summary judgment, the Bar challenged the justiciability of Plaintiffs' First Amendment claim. ECF No. [30]. Choosing also in its Response to the instant Motion to focus on its justiciability arguments, the Bar dedicated only a few paragraphs (of its five and half page brief) to the substance of the First Amendment issues. This Court rejected the Bar's standing and ripeness challenges to Plaintiffs' First Amendment claim, and determined that Plaintiffs' claim is justiciable. ECF No. [43], Rubenstein v. Florida Bar, 69 F.Supp.3d 1331, 2014 WL 6610972 (S.D.Fla. Nov. 20, 2014).
A party may obtain summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The parties may support their positions by citation to the record, including inter alia, depositions, documents, affidavits, or declarations. Fed.R.Civ.P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006); Howard v. Steris Corp., 550 Fed.Appx. 748, 750 (11th Cir.2013) ("The court must view all evidence
"[T]he court may not weigh conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be denied." Carlin Commc'n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.1986); see also Aurich v. Sanchez, 2011 WL 5838233, at *1 (S.D.Fla. Nov. 21, 2011) ("If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then the court must not grant summary judgment." (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993))). To preclude summary judgment, the factual issue or dispute must be genuine — the evidence must be of such a quality that "a reasonable jury could return a verdict for the nonmoving party.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Only those doubts about facts that are reasonable must be resolved in favor of the non-movant." Worthy v. Widnall, 900 F.Supp. 475, 480 (M.D.Ga.1995) (citing Irby v. Bittick, 44 F.3d 949, 953 (11th Cir.1995)). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is `no genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotation omitted).
The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). Once this burden is satisfied, "the nonmoving party `must make a sufficient showing on each essential element of the case for which he has the burden of proof.'" Ray v. Equifax Info. Servs., L.L.C., 327 Fed. Appx. 819, 825 (11th Cir.2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991) ("Once a moving party has sufficiently supported its motion for summary judgment, the non-moving party must come forward with significant, probative evidence demonstrating the existence of a triable issue of fact."). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in his favor. Shiver, 549 F.3d at 1343.
Statements of fact submitted by the parties (as required by Local Rule in this District) must be supported by specific evidence in the record, such as depositions, answers to interrogatories, admissions, and affidavits on file with the Court. See S.D. Fla. L.R. 56.1. A party cannot manufacture a genuine issue of fact by misconstruing or misstating the clear factual record before the Court. See Broadcast Music, Inc. v. Evie's Tavern Ellenton, Inc., 772 F.3d 1254, 1259-60 (11th Cir.2014) (factual record contradicted assertion of fact by party and could not preclude summary judgment); Reese v. Herbert, 527 F.3d 1253, 1268-69 (11th Cir. 2008) (A statement of fact "is not itself a vehicle for making factual assertions that are otherwise unsupported in the record... [rather,] the district court must [] review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact.") (citations omitted). A party's affidavit or declaration will not be credited where "blatantly contradicted by other evidence in the record." Reid v. Sec'y, Fla. Dept of Corr., 486 Fed. Appx. 848, 851 (11th Cir.2012).
The United States Supreme Court first recognized that protections afforded by the First Amendment to the United States Constitution apply to commercial speech in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). See also Mason v. Fla. Bar, 208 F.3d 952, 955 (11th Cir.2000) ("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."). It later elaborated that this type of speech merits only "a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression." Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (quoting Ohralik v. Ohio State Bar Assoc., 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)). The Supreme Court specifically applied First Amendment protections to attorney advertising in Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), holding that advertising by attorneys may be regulated, but "may not be subjected to blanket suppression." Bates, 433 U.S. at 383, 97 S.Ct. 2691. The Court further noted that "[i]t is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection." Went For It, 515 U.S. at 623, 115 S.Ct. 2371.
The Supreme Court's "decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful." Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 646, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). Regulations which seek to restrict advertising often "assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information." Bates, 433 U.S. at 374-75, 97 S.Ct. 2691. The Supreme Court has eschewed "as dubious any justification that is based on the benefits of public ignorance." Id. "[P]eople will perceive their own best interests if only they are well enough informed, and ... the best means to that end is to open the channels of communication rather than to close them." Va. Bd. of Pharmacy, 425 U.S. at 770, 96 S.Ct. 1817. Moreover, the Supreme Court has stressed that "insofar as [lawyer] advertising tend[s] to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it [is] undoubtedly more valuable than many other forms of advertising." Zauderer, 471 U.S. at 646, 105 S.Ct. 2265.
The Court must determine whether Plaintiffs present a facial or an as-applied challenge to the Guidelines and the Rules. See, e.g., Abramson v. Gonzalez, 949 F.2d 1567, 1572 (11th Cir.1992) (considering nature and propriety of challenge as facial or as-applied before review of the merits).
"A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself." United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir.2000). See Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("[I]n the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable."). Under the standard articulated by the Supreme Court in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), a plaintiff mounting a facial challenge "must establish that no set of circumstances exists under which the [statute or regulation] would be valid." Id. at 745, 107 S.Ct. 2095; see GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 & n. 19 (11th Cir.2012) (reiterating that Salerno's "no set of circumstances" test is the proper standard for evaluating a facial challenge). That is, "when a plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law could never be constitutionally applied." Jacobs v. The Fla. Bar, 50 F.3d 901, 906 n. 20 (11th Cir.1995) (citing N.Y. State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) ("to prevail on a facial attack the plaintiff must demonstrate that the challenged law ... could never be applied in a valid manner")).
By contrast, where "plaintiffs seek to vindicate their own rights, the challenge is as-applied." Jacobs, 50 F.3d at 906; see also Ross v. Duggan, 402 F.3d 575, 583 (6th Cir.2004) ("In an as-applied challenge, the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiff's particular situation.") (citation omitted); Legal Aid Servs. of Oregon v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) ("An as-applied First Amendment challenge contends that a given statute or regulation is unconstitutional as it has been applied to a litigant's particular speech activity."). When evaluating an as-applied challenge, the court's inquiry and potential relief focuses only on the particular challenged application, and "the party seeking to uphold a restriction on commercial speech carries the burden of justifying it." Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)). The Supreme Court has characterized that burden as a "heavy" one. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996).
The Eleventh Circuit has confirmed that the target of a plaintiff's claim and the nature of the relief sought is paramount, not the facial versus as-applied label. See Am. Fed'n of State, Cnty. & Mun. Employees Council 79 v. Scott, 717 F.3d 851, 863-64 (11th Cir.2013). Characterizing a challenge as either facial or as-applied
Here, Plaintiffs and the Bar both discuss Plaintiffs' First Amendment claim as an as-applied challenge. However, the Court is "not bound by [Plaintiffs'] designation of [their] claims, and [must] look to the complaint to determine what claims, if any, [their] allegations support." Harrell v. The Fla. Bar, 608 F.3d 1241, 1259 (11th Cir.2010) (citing Jacobs, 50 F.3d at 905 n. 17). Plaintiffs' challenge to the Guidelines and Rules is quasi-facial. Plaintiffs attack the Bar's application of the Guidelines to their particular advertisements and aim to vindicate their specific rights. Their challenge is in that sense as-applied, and the Bar thus carries the burden of justifying the restrictions the Guidelines and Rules impose upon Plaintiffs' commercial speech. At the same time, Plaintiffs seek injunctive relief "[d]eclar[ing] unconstitutional and enjoin[ing] enforcement of the [Guidelines] prohibiting television and radio advertising of past results." ECF No. [1] (Complaint) at 8; Mtn. at 26. Therefore, in evaluating the relief Plaintiffs request, the Court will consider whether it meets Salerno's "demanding" no-set-of-circumstances standard. See Scott, 717 F.3d at 865-66 (applying Salerno in relief context).
"[D]ifferent types of commercial speech merit different levels of protection." Public Citizen Inc. v. La. Att'y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir.2011). "Inherently misleading or false advertising is not considered commercial speech, and may be regulated by the state at will." Borgner v. Brooks, 284 F.3d 1204, 1210 (11th Cir.2002) ("Since the First Amendment is concerned only with the informational function of advertising, state regulations of commercial messages that do not accurately inform the public about lawful activity are valid."); see In re R.M.J., 455 U.S. 191, 203-04, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982) ("[W]hen the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse ... [it] may be prohibited entirely."); Zauderer, 471 U.S. at 638, 105 S.Ct. 2265 ("The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction."); Public Citizen, 632 F.3d at 218 (inherently misleading advertising or advertising deceptive-in-fact "receives no protection and the State may prohibit it entirely").
"Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest."
Here, neither party disputes that attorney advertisements containing past results statements are at most potentially, and not necessarily, deceptive or misleading. Rule 4-7.13 on its own terms restricts only "deceptive or inherently misleading advertisements," implying that any advertisements which it in fact prohibits are "inherently misleading." But the Guidelines do not apply to all forms of attorney advertisement — they apply only to advertisements on indoor and outdoor display, television and radio media. Moreover, the Guidelines clarify that they target past results advertising because the "inclusion of past results in advertising carries a particularly high risk of being misleading" (emphasis added). The Bar has further specified that its application of the Guidelines was directed by a "concern[] that advertisements such as the aforesaid might be misleading to the average consumer" (emphasis added). Second Tarbert Decl. ¶ 4. The Bar itself thus characterizes the subject advertisements as likely or potentially, but not inherently or actually, misleading. The Court further notes that the Bar has conceded that it must meet the burden delineated in Central Hudson "before imposing regulations on attorney advertising." Resp. at 2. Finally, the Court considers it relevant that, as represented by Plaintiffs and not disputed by the Bar, no other state bar or attorney regulatory body currently imposes a blanket prohibition on attorney advertising using past results, or a blanket prohibition on such advertisement in any particular media.
The record here is in accord with a recent Fifth Circuit decision that is directly on point. In Public Citizen, 632 F.3d 212, the plaintiffs challenged a rule prohibiting attorney communications containing a reference to past successes or results. Id. at 217. The specific rule in Public Citizen "prohibit[ed] communications that contain a reference or testimonial to past successes or results obtained" except when provided upon client request. Id. The Louisiana Attorney Disciplinary Board argued that "[r]eference to past results, even if truthful ... could also be inherently misleading." Public Citizen, Inc. v. La. Attorney Disciplinary Bd., 642 F.Supp.2d 539, 553 (E.D.La.2009). The circuit court confirmed the district court's determination that "it is possible for an attorney to present past results in a manner that is not misleading." Public Citizen, 632 F.3d at 219. The court contrasted attorney advertisements that reference past result with advertisements that promise results: "a promise that a party will prevail in a future case is necessarily false and deceptive [because n]o attorney can guarantee future results." Id. at 218-19. The Fifth Circuit held that attorney advertisements containing reference to past successes or results — the same communication at issue here — "may be presented in a non-deceptive manner and [is] not inherently likely to deceive the public" and, therefore, requires application of the Central Hudson test. Id. at 219.
The Bar argues that Plaintiffs' claim is either misplaced or mistimed and "based on the erroneous premise that the Bar has prohibited advertising of past results on television. The Bar has not." Resp. at 3. The Bar highlights that the Rules on their face do not prohibit Plaintiffs' advertisements and maintains that the Guidelines are advisory and do not themselves establish rules permitting or prohibiting any attorney conduct. In support of their position, the Bar states in opposition to Plaintiffs' recitation of material facts that the "Guidelines adopted by the Bar Board of Governors do not prohibit advertising of past results on television, radio, or any other media" and that the Bar "did not notify Rubenstein that he would face the risk of professional discipline for failing to comply with the [Withdrawal Letter] of Guidelines." ECF No. [33] (Def. Stat. Facts) ¶¶ 1, 2. The Bar's statements of fact claim support by and cite only to the two Tarbert Declarations and the Withdrawal Letter.
The Bar's statements of fact on this issue are directly contradicted by the record evidence before the Court. To be clear, the Court need not weigh evidence (as would be inappropriate on summary judgment) to reject the Bar's statements of fact. To be considered, the Bar's statements of fact must be supported by record evidence. See Broadcast Music, 772 F.3d at 1259-60; Reese, 527 F.3d at 1268-69. As explained in more detail below, the Bar's statements that the Guidelines "do not prohibit advertising of past results" and that they "did not notify Rubenstein that he would face the risk of professional discipline" are directly contradicted by record evidence (including the Guidelines themselves and the evidence of the Bar's enforcement of the Rules against Plaintiffs), and are not supported even by the evidence to which the Bar cites (the Withdrawal Letter and the two Tarbert Declarations). The Bar has not identified any genuine dispute of fact material to the substance of Plaintiffs' First Amendment claim.
As addressed (in a different procedural posture) in the Court's previous opinion and order on the justiciability of Plaintiffs' claim, the record clearly establishes that the Guidelines are the Bar's interpretation and application of its Rules regarding attorney advertisement of past results. Plaintiffs' claim targets the Rules regarding attorney advertisement as articulated in the Guidelines. The Rules permit attorney advertisement of past results where "objectively verifiable." But the Guidelines establish that advertisements utilizing past results on specific media — including billboards and television — present too high a risk of being misleading, and as a result, the Bar considers all such advertisement non-complaint with its Rules on attorney advertising.
The Guidelines, on their face, purport to interpret and apply the Rules. The Guidelines were issued by the Bar's Board of Governors, which has exclusive authority to formulate and adopt matters of policy for the entirety of the Bar's operations. The Bar's practice in enforcing the Rules through the lens of the Guidelines confirms that the Guidelines are the Bar's official interpretation of the Rules. The Withdrawal Letter states that Plaintiffs' "advertisement(s) do not comply with the
Dissemination of advertisements not in compliance with the Rules will subject an attorney — and has subjected Plaintiffs — to disciplinary action by the Bar. The Rules themselves state that that "[a] lawyer will be subject to discipline as provided in these rules for ... dissemination of a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar." Rule 4-7.19(f)(2). On their face, the Rules themselves appear to mandate disciplinary action for use of an advertisement not found by the Bar to be Rule-compliant. Again, the Bar's practice bears this out. In the June 2014 Letter, the Bar notified Plaintiffs that they were alleged to have violated the Rules regarding attorney advertisement — specifying the same advertisement language identified in the Withdrawal Letter, and pairing that language with violation of the Rules regarding advertising past results. The Letter stated that the matter had been referred to Bar counsel "to initiate disciplinary proceedings." The June 2014 Letter concretely establishes that the Bar's Lawyer Regulation Department has applied the Rules as interpreted by the Guidelines to prohibit attorney advertisement of past results as practiced by Plaintiffs, and engages in disciplinary action to enforce that prohibition.
The Bar's declaration that its Lawyer Regulation Department has not (since adoption of the new Rules) itself submitted an attorney grievance complaint targeting the use of past performance in advertising is misleading and belied by the very disciplinary actions taken by the Bar against Plaintiffs here. The Bar initiated disciplinary proceedings against Plaintiffs in June 2014 for violating the Rules regarding advertising past results on the basis of an anonymous complaint by "concerned bar members." See June 2014 Letter at 7. Submission of a complaint by the Lawyer Regulation Department was and is not necessary. The Bar undertook to enforce the Rules — against Plaintiffs themselves — as interpreted by the Guidelines.
Neither Tarbert Declaration supports the Bar's assertion that it has not prohibited attorney advertising of past results on indoor and outdoor display, television and radio media. Rather, they recite that the Bar's Ethics and Advertising Department has no independent disciplinary authority, and that the Bar has ceased to issue safe harbor opinions "regarding past results involving dollar recoveries" due to its "concern" that advertisements containing such information "might be misleading to the average consumer." That is irrelevant to the fact that the Bar has enforced the Rules as restated by the Guidelines to completely prohibit the use of past results in attorney advertisement on indoor and outdoor display, television and radio media. The Bar's disciplinary arm has enforced the Guidelines. The fact that the Bar no longer issues safe harbor opinions, similar to the one withdrawn as to Plaintiffs, reinforces the prohibition. The record evidence establishes that the Bar has banned the use of past results on the specified media and has subjected Plaintiffs to disciplinary repercussions for violating the Guidelines.
The first prong of the Central Hudson test requires the Bar to offer a substantial governmental interest that is advanced by the challenged restrictions on speech. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 367, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) ("If the speech concerns lawful activity and is not misleading... we next ask whether the asserted governmental interest is substantial."). "Unlike rational basis review, the Central Hudson standard does not permit [the court] to supplant the precise interests put forward by the State with other suppositions." Harrell, 608 F.3d at 1269 (quoting Went For It, 515 U.S. at 624, 115 S.Ct. 2371).
Because it chose not to substantively brief the First Amendment issue, the Bar did not articulate which interest or interests the Rules support and promote. If there is no substantial or important governmental interest at play — and, as explained in Harrell, the Court cannot invent one — the analysis ends there. See also Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 183, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) ("[T]he Government bears the burden of identifying a substantial interest and justifying the challenged restriction."). Judgment in favor of Plaintiffs would be mandated on this basis alone. See, e.g., Tinsley Media, LLC v. Pickens Cnty., Ga., 203 Fed.Appx. 268, 273-74 (11th Cir.2006) (holding that ordinance failed Central Hudson test where government failed to establish that it was enacted to implement a substantial governmental interest, and refusing to consider "after the fact rationalizations for regulations" in its analysis).
However, the undisputed record evidence reveals several discrete interests the Bar understood the Rules and Guidelines to advance. In its 2011 Petition advocating adoption of the Rules, the Bar stated several "primary goals," including: protecting the public from "false, misleading, or deceptive information by lawyers for the purpose of obtaining representation;" promoting attorney advertising that "provides information that will assist a prospective client in making an informed and meaningful decision" about legal services; and preventing "advertising that contributes to disrespect for the judicial system" or that "causes the public to have an inaccurate view of the legal system." The Guidelines reiterate the purpose of preventing misleading attorney advertising. The Supreme Court and the Eleventh Circuit have recognized as substantial the government's interests in "ensuring the accuracy of commercial information in the marketplace," Edenfield, 507 U.S. at 769-70, 113 S.Ct. 1792, and in preserving the integrity and reputation of the legal profession and through that promoting the administration of justice. Harrell, 608 F.3d at 1269-70 (citing Went For It, 515 U.S. at 625, 115 S.Ct. 2371); see also Mason, 208 F.3d at 956 ("[T]he 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."). "By contrast, an interest in preserving attorneys' dignity in their communication with the public is
"This portion of the test requires the government to `demonstrate that the challenged regulation advances the Government's interest in a direct and material way.'" Borgner, 284 F.3d at 1211 (quoting Went For It, 515 U.S. at 625, 115 S.Ct. 2371). That burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995). "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.'" Mason, 208 F.3d at 956. "Courts have generally required the state to present tangible evidence that the commercial speech in question is misleading and harmful to consumers before they will find that restrictions on such speech satisfy [this] prong." Borgner, 284 F.3d at 1211; see also Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 147, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (striking down a state regulation for failure to back up the concern that the speech would mislead rather than inform); Peel v. Attorney Registration & Disciplinary Comm'n of Ill., 496 U.S. 91, 108-09, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (rejecting the claim that certain speech was misleading for lack of empirical evidence); Edenfield, 507 U.S. at 770-71, 113 S.Ct. 1792 (rejecting the state's asserted harm because the state had presented no studies, nor anecdotal evidence to support its position).
The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote. The burden here is the Bar's, and it has failed to meet it.
Rather than proving that its rules on the use of past results are necessary to protect consumers, the record evidence accumulated by the Bar actually undermines its position. The data collected between 1995 and 1997 toward the 1997 Task Force Report — to the extent probative — showed that consumers wanted more "useful" and "factual" information to help them chose an attorney. The supporting survey results explain that large majorities of consumers were interested in attorney "qualifications," "experience," "competence" and "professional record (i.e., wins/losses)." They also revealed that negative attitudes about legal system and lawyers consistently declined over the relevant survey period, despite the increase in quantity and breadth of attorney advertising.
More poignant, in advocating permitting the use of past results in attorney advertising as part of the revised Rules, the Bar stated that "[o]f those responding to the survey on public perception of lawyer advertising, 74% indicate that past results are an important attribute in choosing a lawyer[; i]t is clear that the public wants this information available to them;" and that "[m]ost of those Florida Bar members who provided written and oral comments also noted that the lawyer advertising rules should not prohibit truthful statements regarding past results." The Bar further explained that "there is no reason why any communications seeking legal employment should be treated differently based upon the medium of the advertising or whether the person requested the information." Like its 1997 Task Force, the 2011 Petition was supported by data and deliberation.
In contrast, the Bar included no factual support for its course-reversal in the Guidelines. The Guidelines claim that "[t]he inclusion of past results in advertising carries a particularly high risk of being misleading" and that "[i]ndoor and outdoor display and radio and television media do not lend themselves to effective communication" of information necessary to ensure that the use of past results are not misleading. In the absence of evidence — especially in light of the fact that the Bar continues to permit the widespread use of past results in other advertising media — this amounts to mere conjecture and speculation.
The Bar has submitted a single declaration from its Director of Ethics and Attorney Advertising relevant to this analysis, stating that the Bar "bec[a]me concerned that advertisements ... that contained statements that lawyers or law firms had gotten clients recoveries in large dollar amounts ... might be misleading to the average consumer." Whatever the merits of the Bar's "concern," this alone is woefully insufficient to support its restriction on Plaintiffs' commercial speech. The Bar offers that it has engaged a third party to conduct consumer research into the use of certain past results information in attorney advertising. The Bar's interest in supporting its position with actual evidence does too little, too late. The data and results of this possible survey, even if they could justify the Guidelines in their entirety, are not properly before this Court. The Bar never requested additional time for discovery. It has not asked the Court to delay consideration of the instant Motion
Finally, the Court reiterates that the Fifth Circuit, in Public Citizen, recently held unconstitutional a Louisiana prohibition on past results attorney advertising materially identical to the rule at issue here. Similar to the Bar's interests in protecting the public from misleading advertising and promoting informative attorney advertising, the Louisiana Attorney Disciplinary Board argued that "the prohibited speech has the potential for fostering unrealistic expectations in consumers." Public Citizen, 632 F.3d at 222. The court rejected that argument, and explained:
Public Citizen, 632 F.3d at 221-22. Public Citizen reinforces that the Bar — had it attempted to prove that the Guidelines advance substantial governmental interests — would need to do so without resorting to the naked paternalism of protecting the public from truthful information. See 44 Liquormart, 517 U.S. at 497, 116 S.Ct. 1495 ("[A] State's paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it."); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 792, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) ("The First Amendment rejects the highly paternalistic approach of statutes... which restrict what the people may hear.") (citations omitted); Va. Bd. of Pharmacy, 425 U.S. at 770, 96 S.Ct. 1817 (deprecating as "highly paternalistic" a state law that, in violation of the First Amendment, sought to protect consumers by prohibiting truthful advertising).
The Bar has failed to demonstrate that its restrictions advance the governmental interests at play. For that reason alone, the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines are unconstitutional. The Court notes, however, that "[i]nvalidating a regulation of commercial speech for lack of sufficient evidence under this prong of Central Hudson does not foreclose a similar regulation being enacted validly in the future. Rather, such invalidation returns the matter to the applicable legislating body and forces that body to take a `second look' with the eyes of the people on it." Alexander v. Cahill, 598 F.3d 79, 91-92 (2d Cir.2010) (citations omitted).
The Bar has additionally failed to demonstrate that its subject restrictions
The Guidelines amount to a blanket restriction on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar has not demonstrated that the prohibition's breadth was necessary to achieve the interest advanced, or that lesser restrictions — e.g., including a disclaimer, or required language — would not have been sufficient. The Bar has failed to meet its burden under this prong as well.
Plaintiffs seek to declare unconstitutional and enjoin the enforcement of the Guidelines' blanket prohibition on attorney advertisement of past results in indoor and outdoor display, television and radio media. This amounts to quasi-facial relief beyond application of the Guidelines to Plaintiffs' particular circumstances. As discussed above, the Court must ensure that, to the extent the relief requested reaches beyond Plaintiffs in this particular case, Plaintiffs have satisfied Salerno's "no set of circumstances" test. See Scott, 717 F.3d at 863.
As part of its "long-recognized, inherent equitable powers," a federal court may issue "traditional" injunctive relief "as either an interim or permanent remedy for certain breaches of common law, statutory, or constitutional rights." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir.2004). "A district court may grant [preliminary] injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc) (per curiam). The standard for issuing a permanent injunction is identical, except that the plaintiff must show actual success on the merits instead of a likelihood of success, and most courts do not consider the public interest element in deciding whether to issue a permanent injunction. See Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ("The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success."); Klay, 376 F.3d at 1098. "[E]ven if his common law, statutory, or constitutional rights have been violated, the plaintiff must also meet the other requirements for obtaining an injunction to show that an injunction is the proper remedy for such violation." Klay, 376 F.3d at 1098.
While Plaintiffs have not raised an overbreadth challenge, the Supreme Court and Eleventh Circuit's guidance on the less demanding standard in that context informs the Court's analysis here. "[T]he Supreme Court itself in Salerno acknowledged an exception to the `unconstitutional-in-every-conceivable-application' rule in cases involving the overbreadth doctrine in `the limited context of the First Amendment.'" Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1331 (11th Cir.2001) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). "[T]he Supreme Court and [the Eleventh Circuit] consistently have permitted facial challenges to prior restraints on speech without requiring the plaintiff to show that there are no conceivable set of facts where the application of the particular government regulation might or would be constitutional." United States v. Frandsen, 212 F.3d 1231, 1236 (11th Cir.2000). "An overbreadth challenge does not require a showing that there is no set of circumstances in which the statute could be applied constitutionally, but it does require a showing that a substantial number of a statute's applications are unconstitutional, judged in relation to its plainly legitimate sweep." United States v. Martinez, 736 F.3d 981, 991 (11th Cir.2013) (quotations omitted). "The reason for this exception lies in the fact that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Horton, 272 F.3d at 1331.
Plaintiffs seek declaratory and injunctive relief on First Amendment grounds, but pose that relief in terms broader than their particular context. The same rationale which guides an overbreadth challenge analysis — hostility to broadly written laws that may chill properly unrestrained communication — applies here. Certainly, the Court cannot impose facial relief beyond what can be supported by the factual record in a particular case. See Wash. State Grange v. Wash. State Republican
The Court's approach here comports with the approach taken by other courts in crafting relief in the First Amendment context, including when considering the constitutionality of restrictions on commercial speech by attorneys.
In Alexander v. Cahill, 598 F.3d 79 (2d Cir.2010), attorneys challenged new rules prohibiting certain types of advertising adopted by the New York Supreme Court, Appellate Division. Fearful that some of their advertising techniques violated the new rules, the plaintiffs stopped running them, and then sued on First Amendment grounds. The Second Circuit affirmed the district court's grant of summary judgment to the plaintiffs with respect to the content-based attorney advertising restrictions, and confirmed the declaratory and injunctive relief the district court imposed. As appropriate for an as-applied challenge, both the lower and appellate court placed the burden on the state to justify its restriction on commercial speech. Id. at 90. While the plaintiffs directed their First Amendment claim at the restrictive effect of the new rules on their advertising, the district court issued, and the Second Circuit affirmed, broader declaratory and injunctive relief, declaring unconstitutional and completely enjoining enforcement against any attorney of the offending regulations. See Alexander v. Cahill, 634 F.Supp.2d 239, 257 (N.D.N.Y.2007).
Likewise, in Revo v. Disciplinary Bd. of the Sup. Ct. for the St. of N.M., 106 F.3d 929 (10th Cir.1997), the Tenth Circuit affirmed the district court's issuance of permanent injunctive relief to remedy a First Amendment violation of attorney commercial speech. The plaintiff in Revo sought a declaratory judgment that the New Mexico Disciplinary Board's ban on attorney direct mail advertisements to personal injury victims and family members of wrongful death victims was unconstitutional, as applied to him and the solicitation letter he proposed to send. Id. at 930-31. After a bench trial, the district court determined that the blanket ban on direct mail advertising was insufficiently tailored to serve the Board's interests and violated the plaintiff's First Amendment rights. The court permanently enjoined the Board from enforcing the regulation. The Tenth Circuit, in affirming the regulation's unenforceability, cited Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028,
The Fifth Circuit's decision in Public Citizen, 632 F.3d 212 (5th Cir.2011), was similar in scope. As explained above, Public Citizen addressed newly adopted regulations on attorney communication, including, as here, a ban on the use of past results. The circuit court reversed the district court's summary judgment that certain of those rules did not constitute unconstitutional infringement on the commercial speech of Louisiana lawyers. In reversing, the Fifth Circuit placed the burden of upholding the regulations on the Louisiana Attorney Disciplinary Board, and determined that the rules which failed to meet the Central Hudson standard were unconstitutional in their entirety.
In a posture similar to Public Citizen, the Eleventh Circuit, in Mason, 208 F.3d 952 (11th Cir.2000), reversed the district court's determination after a non-jury trial that the attorney advertising regulations at issue passed First Amendment scrutiny. There, the plaintiff argued that, as applied to him, the Florida Bar's restriction on advertising containing attorney ratings violated his First Amendment right of free speech. See id. at 954; Mason v. Fla. Bar, 29 F.Supp.2d 1329, 1330 (M.D.Fla. 1998). Placing the burden on the Bar "to demonstrate that the harms it recites are real and that its restrictions will alleviate the identified harm" and applying the Central Hudson test, the appellate court in Mason found the regulations unconstitutional. Mason, 208 F.3d at 957-58. The court did not qualify its holding to the plaintiff himself.
Courts have routinely followed this same pattern in adjudicating First Amendment issues other than the regulation of attorney communication. See, e.g., AIDS Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 12 (1st Cir.1994) (affirming injunction with respect to advertisements in question as well as "any that are strictly comparable," in context of as-applied First Amendment challenge); Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir.2012) (affirming permanent injunction against enforcement of city ordinance imposing solicitation curfew where plaintiff presented, and court only considered, an as-applied First Amendment claim); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (affirming, in context of an as-applied First Amendment challenge, preliminary injunction completely enjoining enforcement of city ordinance establishing a solicitors licensing procedure which included fingerprinting and bond requirements).
Plaintiffs' requested declaratory and injunctive relief is appropriate even under Salerno's rigorous requirements, especially when read in light of the "substantial application" standard in the First Amendment overbreadth context.
Given the evidence before the Court, there is no attorney subject to the Rules as to whom the Guidelines' blanket prohibition on advertising using of past results in indoor and outdoor display, television and radio media could survive scrutiny under
For the foregoing reasons, the Court grants summary judgment in favor of Plaintiffs. There are no factual issues in dispute regarding the Bar's blanket prohibition on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar has failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest. The relief requested by Plaintiffs, as circumscribed and on the terms stated herein, is appropriate.
Accordingly, it is hereby
