Harry N. Jacobs, Richard R. Mulholland David W. Singer v. The Florida Bar John F. Harkness, Jr., Stephen H. Grimes Supreme Court of Florida James Fox Miller, President of the Florida Bar Leander J. Shaw, Jr.
Docket: 93-2933
Court: Court of Appeals for the Eleventh Circuit; June 16, 1995; Federal Appellate Court
The case involves Appellants Richard R. Mulholland and David W. Singer, members of the Florida Bar, challenging certain rules regulating attorney advertising under the First and Fourteenth Amendments. They appealed a district court's summary judgment favoring the Florida Bar and related parties, arguing they have standing to contest the rules and that the burden of proof regarding the rules' constitutionality lies with the Appellees. The specific rules challenged include: (1) the "testimonial rule," which bans testimonials in advertising; (2) the "dramatization rule," prohibiting dramatizations; (3) the "single voice rule," requiring only one voice in audio advertisements without recognizable celebrity voices; and (4) the "illustration rule." Appellants claim these rules infringe their First Amendment rights by effectively banning certain advertising methods, regardless of the content's legality. The Florida Bar acknowledged that some Appellants have previously used advertisements that would conflict with the current rules, exposing them to potential disciplinary action. The Court reversed the summary judgment and remanded the case for further proceedings, particularly regarding the vagueness challenge to the rules.
Appellants challenge three advertising rules as unconstitutional and argue that the illustration rule is unconstitutionally vague under the Fourteenth Amendment, lacking clarity on which illustrations violate the rule. They express uncertainty about when an illustration is considered 'factually substantiated.' After extensive discovery, Appellants filed a motion in limine to shift the burden of proof onto Appellees to justify the rules. The district court determined that Appellants sought a facial invalidation without submitting specific advertisements for review, placing the burden on them to prove that the rules cannot be constitutionally applied in any scenario. Appellants acknowledged they could not meet this burden, as the state could prohibit misleading advertisements. Consequently, the district court granted summary judgment for Appellees, stating that Appellants’ facial challenge lacked a "justiciable controversy."
The court also addressed Appellants' standing to bring the suit, emphasizing that federal courts only have jurisdiction over "cases and controversies" as defined by Article III. The standing issue is reviewed de novo, and when challenged in summary judgment, plaintiffs must provide specific facts through affidavits or evidence. To establish standing, a plaintiff must show personal injury traceable to the defendant's conduct. A plaintiff's intent to engage in constitutionally protected conduct does not require exposure to enforcement, but they must show a realistic danger of direct injury from the statute's operation. This can be demonstrated by claims of threats of prosecution, likelihood of prosecution, or credible threats thereof.
Appellants claim they previously used advertisements that violate new regulations and would continue to do so if not for these rules. Appellees acknowledge that Appellants utilize various advertising mediums and have previously engaged in violative advertisements, admitting Appellants face potential disciplinary action under the new regulations. The court concludes that Appellants demonstrate a credible threat of prosecution, establishing their standing to pursue the claim. This conclusion is supported by precedents, such as United States v. Edge Broadcasting Co. and Edenfield v. Fane, where plaintiffs were permitted to challenge rules despite not facing direct threats of prosecution, provided they asserted that they would engage in prohibited conduct absent the rule. The district court initially placed the burden on Appellants to prove that the rules could never be constitutionally applied, but Appellants conceded they could not meet this burden. The court determined that Appellants' claim is an as-applied challenge, as it focuses on their specific rights rather than a facial challenge to the rules, aligning with the precedent set in cases like Fane.
The court addressed the distinction between facial and as-applied challenges in Abramson v. Gonzalez, affirming that individuals who have not applied for a psychologist's license can still raise an as-applied challenge to a Florida law restricting the use of the title "psychologist." The court emphasized that if the constitution permits certain advertising practices, the law imposes a limitation on free expression when applied to those individuals. Consequently, Appellants successfully stated a cause of action for an as-applied challenge to the regulations.
In cases involving as-applied challenges to commercial speech, the government bears the burden of justifying any restrictions imposed. The court refrained from determining whether the state could meet this burden and reversed the district court's summary judgment in favor of Appellees, remanding the case for further proceedings.
Appellants also contended that the district court erred in ruling the illustration rule unconstitutionally vague. Appellees argued that vagueness challenges are not permissible in commercial speech contexts and that the rule is not vague on the merits. The court rejected Appellees' argument regarding the inapplicability of vagueness claims in commercial speech, referencing Supreme Court precedent that allows such challenges. The court did not resolve the merits of Appellants' vagueness claim but noted that the trial court did not address this issue, as it deemed there was no justiciable case. The court remanded the matter for consideration of whether summary judgment was appropriate regarding the vagueness challenge.
In a concurrence, Senior Circuit Judge Godbold pointed out that the case was initially presented as a facial challenge against lawyer advertising rules, which contradicts recent Supreme Court decisions that allow for facial constitutional challenges to commercial speech regulations.
The district court recharacterized the case from a facial challenge to an "as-applied" challenge regarding the regulation of lawyer advertising, a decision met with some skepticism due to the unclear distinction between these types of challenges in commercial speech cases. The parties involved include The Florida Bar, its Executive Director John F. Harkness, and the individual justices of the Supreme Court of Florida, while James Fox Miller and Harry N. Jacobs were previously involved but dismissed prior to summary judgment. The Appellants initially contested multiple rules but later narrowed their claims to those remaining at the time of summary judgment.
The relevant Rules Regulating The Florida Bar include prohibitions against false or misleading communications, dramatizations in advertisements, and specific requirements for electronic media advertisements. The Appellants argue that their advertising practices, which include non-misleading dramatizations and recognizable voices, would violate these new rules. Notably, the law firms involved had significant advertising expenditures, with Mulholland's firm spending approximately $610,000 and Singer's firm around $445,000 between specified dates.
The court noted that Appellants could not demonstrate that the dramatization rule is unconstitutional in all applications, acknowledging the state's authority to ban misleading advertisements. For the Appellants to succeed, they must show a traceable injury linked to the rules and that the requested relief would address this injury, which the court confirmed would be resolved through an injunction and declaratory judgment.
Appellate courts have an independent duty to assess standing, even if the parties do not raise it, as emphasized in FW/PBS, Inc. v. City of Dallas. Federal courts must examine their jurisdiction, with standing being a crucial aspect. In the case discussed, a North Carolina radio station, prohibited from lottery promotion, had a majority of its audience and advertising revenue from Virginia, which allowed such activities. A lawyer, McHenry, was disbarred but allowed another lawyer, Blakely, to intervene and challenge a thirty-day ban on direct mail solicitation, affirming Blakely's standing despite McHenry's disbarment. The court does not have to adhere to how appellants label their claims, focusing instead on the actual cause of action presented. Allegations alone may not suffice, particularly when certain advertising methods are entirely banned. A court may declare a statute unconstitutional on its face during an as-applied challenge, while a facial challenge requires the plaintiff to prove that the law can never be constitutionally applied. Appellants acknowledged that the rules only affect commercial speech. The overbreadth doctrine allows individuals not directly harmed by a law to challenge its validity, though the court has not extended this doctrine to commercial speech regulations.
