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."

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. The Florida Bar, 21 F.3d 1038 (11th Cir.1994), cert. granted, --- U.S. ----, 115 S. Ct. 42, 129 L. Ed. 2d 937 (1994), this court permitted McHenry, a Florida lawyer, to challenge the Florida Bar's rule prohibiting lawyers from direct mail solicitation in personal injury and wrongful death cases within thirty days of an accident or disaster. This court implicitly held that McHenry had standing because he engaged in the prohibited conduct before the rule was promulgated and asserted "that, but for its prohibition, [he] would send such letters within thirty days of an accident or disaster."15 Id. at 1040. See also Meese v. Keene, 481 U.S. 465, 472-73, 107 S. Ct. 1862, 1867, 95 L. Ed. 2d 415 (1987) (holding that plaintiff has standing to challenge Foreign Agents Registration Act's use of term "political propaganda"; if plaintiff showed films so designated, he would be subject to adverse consequences such as loss of personal and professional reputation); Butterworth, 5 F.3d at 498-99 (holding that plaintiff, a judicial candidate, had standing to challenge statute regulating campaigning, when he alleged that he engaged in conduct statute apparently prohibited in prior election and that he intended to use similar advertisements in reelection campaign; "a credible threat of prosecution exist[s] because [he] intend[ed] to engage in arguably protected conduct, which the statute seemed to proscribe"); ACLU v. The Florida Bar, 999 F.2d at 1492 (plaintiff had standing to challenge Florida Bar Rule when he showed a reasonable fear of disciplinary action).

In light of this precedent and The Florida Bar's admission that Appellants face potential disciplinary action should they use the advertisements that they wish to use, we conclude that Appellants have standing to bring this suit.

Following the motion in limine, the district court issued an order holding that Appellants bore the burden of proving that the rules could never be constitutionally applied. Appellants conceded that they could not prove that the rules could never be constitutionally applied, as it is clear that the state has the power to prohibit advertisements that are misleading in content, regardless of their form.16 The district court placed the burden of proof on Appellants because Appellants had characterized their claim as a facial challenge to the rules. We hold, however, that Appellants brought an as-applied challenge to the rules.17

A facial challenge is one that seeks to invalidate a law "even though [the law's] application in the case under consideration may be constitutionally unobjectionable." Forsyth County, Georgia v. The Nationalist Movement, --- U.S. ----, ----, 112 S. Ct. 2395, 2401, 120 L. Ed. 2d 101 (1992). Where, as here, plaintiffs seek to vindicate their own rights, the challenge is as-applied.18

For example, in Fane, the Court treated Fane's challenge to the rule banning in-person solicitation by accountants as an "as-applied" challenge, when Fane alleged that but for the prohibition, he would engage in the prohibited behavior. See Fane, --- U.S. at ----, 113 S. Ct. at 1805 (O'Connor, J., dissenting) (criticizing the majority for "characterizing Fane's suit as an 'as-applied' challenge"). See also Edge Broadcasting Co., --- U.S. at ---- & n. 3, 113 S. Ct. at 2702 & n. 3 (plaintiff mounted as-applied challenge; the district court "[a]ssum[ed] that the advertising Edge wished to air would deal with the Virginia lottery, a legal activity, and would not be misleading").

This court addressed the facial versus as-applied distinction in Abramson v. Gonzalez, 949 F.2d 1567, 1573-74 (11th Cir.1992), and held that persons who had not applied for a psychologist's license nonetheless were entitled to raise an as-applied challenge to a Florida law mandating that only licensed psychologists may hold themselves out as psychologists. In so holding, we stated, "[i]f the constitution entitles plaintiffs to advertise in particular ways, ... then as applied to them, the law limits ... the scope of their free expression." Id. at 1573; see also American Library Ass'n v. Reno, 33 F.3d 78 (D.C.Cir.1994) (although the challenged statute had not been enforced against plaintiffs, plaintiffs sought to alleviate burdens which the statute placed on them, and therefore, challenge was as-applied). We thus conclude that Appellants have stated a cause of action for an as-applied challenge to the rules.19

Where, as here, a plaintiff mounts an as-applied challenge to an alleged burden on commercial speech, "[i]t is well established that 'the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.' " Fane, --- U.S. at ----, 113 S. Ct. at 1800 (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20, 103 S. Ct. 2875, 2882 n. 20, 77 L. Ed. 2d 469 (1983)). Thus, the "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."20 Id., at ----, 113 S. Ct. at 1800 (citations omitted); see also McHenry, 21 F.3d at 1042 ("the Bar must demonstrate that its thirty-day ban serves a substantial government interest and is narrowly tailored to achieve that interest"); Reno, 33 F.3d at 83 (rejecting state's argument that plaintiff had to show that statute was "unconstitutional in every conceivable application," because plaintiff's challenge was as-applied, and not facial).

We express no opinion as to whether the state can meet its burden of justifying the rules. Rather, we REVERSE the district court's order granting Appellees' motion for summary judgment and REMAND for proceedings consistent with this opinion.

Appellants also assert that the district court erred in granting summary judgment with respect to their claim that the illustration rule is unconstitutionally vague.

Appellees first argue that vagueness challenges are impermissible in the context of commercial speech.21 Alternatively, they assert that the district court properly granted summary judgment because on the merits, the rule is not unconstitutionally vague.

We reject Appellees' contention that vagueness attacks on rules regulating commercial speech are not permitted. Although the Supreme Court has held the overbreadth doctrine22 inappropriate in commercial speech cases,23 the Court has not limited the reach of the vagueness doctrine in the same way. To the contrary, the Supreme Court has squarely entertained a vagueness challenge to an advertising restriction on pure commercial speech. See Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339, 347, 106 S. Ct. 2968, 2975-76, 2980, 92 L. Ed. 2d 266 (1986). We thus find Appellees' first contention without merit.

We decline to resolve the question of whether summary judgment was appropriate on the merits of Appellants' claim. In its order granting Appellees' motion for summary judgment, the trial court did not address Appellants' vagueness challenge, apparently finding it unnecessary to do so in light of its holding that there was no justiciable case. Because we hold that Appellants have standing to bring this as-applied attack on the rules, we remand to the district court for a determination of whether summary judgment was appropriate on Appellants' vagueness challenge to the illustration rule. See Knight v. Columbus, Georgia, 19 F.3d 579, 583 n. 3 (11th Cir.) (where district court granted summary judgment on statute of limitations ground, "for prudential reasons," appellate court would not address claim on the merits, but rather would remand to the district court), cert. denied, --- U.S. ----, 115 S. Ct. 318, 130 L. Ed. 2d 280 (1994).

For the reasons expressed in this opinion, we REVERSE the district court's grant of summary judgment and REMAND for proceedings consistent with this opinion.

GODBOLD, Senior Circuit Judge, concurring dubitante:

This case was brought as a facial attack on lawyer advertising rules and was presented to the district court as such, and is presented to this court as such:

That ruling [the district court's summary judgment] conflicts with recent commercial speech decisions of the United States Supreme Court, which permitted facial constitutional challenges to commercial speech regulations. (Citing Edenfield v. Fain [Fane, --- U.S. ----], 113 S. Ct. 1792 [123 L. Ed. 2d 543] (1993), and U.S. v. Edge Broadcasting Co. [--- U.S. ----, ----], 113 S. Ct. 2696, 2706 [125 L. Ed. 2d 345] (1993).

Appellant's brief p. ii.

The district court responded to the case as presented. Despite the presentation in both courts as a facial challenge the court has recharacterized the case as an "as-applied" attack. I concur in that result because, as best I can tell, it is required of us, but I do so dubiously because I cannot discern with any degree of confidence what, if anything, is left of the facial/as-applied distinction in commercial speech cases, especially in the field of regulation of lawyer advertising.