                                                                  [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               APR 06 2000
                                                            THOMAS K. KAHN
                                                                 CLERK
                                No. 99-2138

                  D. C. Docket No. 97-01493-CV-ORL-18A


STEVEN G. MASON,

                                                            Plaintiff-Appellant,

                                   versus

FLORIDA BAR,

                                                           Defendant-Appellee.




                 Appeal from the United States District Court
                     for the Middle District of Florida

                               (April 6, 2000)


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

DUBINA, Circuit Judge:
      This case involves facial and as applied challenges to Rule 4-7.2(j) of the

Rules Regulating the Florida Bar (“Rule 4-7.2(j)”), which prohibits statements

made by lawyers in advertisements or written communications that are “self

laudatory” or that describe or characterize the quality of legal services. In

particular, Appellant Steven G. Mason (“Mason”) challenges the application of

Rule 4-7.2(j) as a violation of his First Amendment rights and charges that Rule 4-

7.2(j) is void-for-vagueness under the First Amendment as it applies to the states

via the Due Process Clause of the Fourteenth Amendment.



                                           I.

      Mason, a criminal defense attorney practicing in Orlando, Florida, submitted

a proof of his yellow pages advertisement to the Bar for an ethics advisory

opinion.1 In pertinent part, the advertisement states that Mason is “‘AV’ Rated, the

Highest Rating Martindale-Hubbell National Law Directory.” The Bar issued an




      1
        The Bar does not require attorneys to submit their advertisements to the
Committee on Advertising for the Florida Bar for review prior to publication. The
Rules Regulating the Florida Bar provide only that an attorney must submit an
advertisement to the Committee concurrently with publication. See Rules Regulating
The Florida Bar, Rule 4-7.5. An attorney may voluntarily seek an advisory opinion
prior to publication of a particular advertisement by submitting the advertisement to
the Committee, which will then issue an opinion to the attorney.
                                           2
opinion that the advertisement violated Rule 4-7.2(j)2 which provides: “Self-

Laudatory Statements. A lawyer shall not make statements that are merely self-

laudatory or statements describing or characterizing the quality of the lawyer’s

services in advertisements and written communication . . . .” The Bar notified

Mason that his advertisement must include a “full explanation as to the meaning of

the [Martindale-Hubbell] AV rating and how the publication chooses the

participating attorneys.” The Bar further indicated that the explanation must state

“that the ratings and participation are based ‘exclusively on . . . opinions expressed

by . . . confidential sources’ and that these publications do not undertake to rate all

Florida attorneys.” (internal quotations and ellipses in original).

      After exhausting his administrative appeals, Mason filed suit in district court

alleging that the Bar’s position violated the First Amendment and Rule 4-7.2(j)

was void for vagueness under the Due Process Clause of the Fifth and Fourteenth

Amendments. Mason sought a declaratory judgment from the district court


      2
         While pending appeal, the Supreme Court of Florida revised its advertising
rules in Amendments to the Rules Regulating The Florida Bar - Advertising Rules, ___
So. 2d ___ (Fla. Dec. 17, 1999), 24 Fla. L. Weekly at S598-99. Rule 4-7.2(b)(3)
replaces Rule 4-7.2(j) and provides in pertinent part, “Descriptive Statements. A
lawyer shall not make statements describing or characterizing the quality of the
lawyer’s services in advertisements or written communications . . . .” A comparison
of the two provisions reveals that the only change, aside from the number of the
statutory section, is that the word “self-laudatory” statements is omitted in the new
statute.
                                           3
declaring Rule 4-7.2(j) unconstitutional, as well as a permanent injunction

enjoining the Bar from enforcing the Rule.

      From the outset, the Bar has acknowledged that Mason is “AV” rated by

Martindale-Hubbell, but insists that the full statement “‘AV’ Rated, the Highest

Rating Martindale-Hubbell National Law Directory” is misleading or potentially

misleading. The district court conducted a mini-trial wherein the Bar presented

only one witness in support of its position. Elizabeth Tarbert (“Ms. Tarbert”), the

Bar’s director of ethics and advertising, testified to the Bar’s interests in

promulgating the rule, and its belief that Mason’s reference to Martindale Hubbell

would mislead the unsophisticated public. The district court found in favor of the

Bar and upheld Rule 4-7.2(j) against both of Mason’s challenges.



                                           II.

      This court reviews de novo the question of whether state restrictions on

commercial speech are constitutional. See Falanga v. State Bar of Georgia, 150

F.3d 1333, 1335-36 (11th Cir. 1998), cert. denied, 119 S.Ct. 1496 (1999). The

determination of whether a statute is unconstitutionally vague is also subject to de

novo review in this court. See Wilson v. State Bar of Georgia, 132 F.3d 1422, 1427

(11th Cir. 1998).


                                            4
                                          A.

      On appeal, Mason contends that the Bar has no substantial state interest in

regulating his advertisement because his advertisement is neither inherently nor

potentially misleading. Mason further argues that even if the state does have a

substantial interest, the Bar failed to produce sufficient evidence to justify its

restrictions on his speech.

      Commercial speech, expression inextricably related to the economic

interests of the speaker and audience, is undeniably entitled to substantial

protection under the First and Fourteenth Amendments of the United States

Constitution. See Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, 512 U.S.

136 (1994); Edenfield v. Fane, 507 U.S. 761 (1993); Peel v. Attorney Registration

& Disciplinary Comm’n., 496 U.S. 91 (1990); Board of Trustees v. Fox, 492 U.S.

469 (1989); Shapero v. Kentucky Bar Ass’n., 486 U.S. 466 (1988); Zauderer v.

Office of Disciplinary Counsel, 471 U.S. 626 (1985); Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm’n., 447 U.S. 557 (1980); Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748 (1976).

Because of the value inherent in truthful, relevant information, a state may ban

only false, deceptive, or misleading commercial speech. See Ibanez, 512 U.S. at

142. However, a state may restrict commercial speech that is not false, deceptive,


                                           5
or misleading upon a showing that the restriction “directly and materially advances

a substantial state interest in a manner no more extensive than necessary to serve

that interest.” Id. at 142-43.

       Lawyer advertising is a constitutionally protected form of commercial

speech, but like any other form of commercial speech, a state may regulate it to

protect the public. See Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977).

This court reviews the constitutionality of a state’s restrictions on lawyer

advertising pursuant to the four-part test originally set forth by the Supreme Court

in Central Hudson. See 447 U.S. at 563-66. Having determined from the outset that

Mason’s speech as truthful information is protectable commercial speech,

satisfying Central Hudson’s first prong, we need only apply the latter three prongs

of the Central Hudson test to determine whether the state’s regulation of this

speech is constitutional. The Central Hudson test inquires as to (1) whether the

state’s interests in limiting the speech is substantial; (2) whether the challenged

regulation advances these interests in a direct and material way; and (3) whether

the extent of the restriction on protected speech is in reasonable proportion to the

interests served. See id; Edenfield, 507 U.S. at 767. In applying Central Hudson, it

is important to recall that “[t]he four parts of the Central Hudson test are not

entirely discrete. All are important and, to a certain extent, interrelated: Each raises


                                           6
a relevant question that may not be dispositive to the First Amendment inquiry, but

the answer to which may inform a judgment concerning the other three.” Greater

New Orleans Broad. Ass’n, Inc. v. United States, 119 S.Ct. 1923, 1930 (1999).

                                            1.

       Turning first to the government’s interests in regulating Mason’s

commercial speech, the Bar advances three interests as “substantial government

interests.” The Bar first asserts an interest in ensuring that attorney advertisements

are not misleading. Indeed, the Supreme Court confirmed long ago that the state

has both a general interest in protecting consumers, as well as a special

responsibility to regulate lawyers. See Ohralik v. Ohio State Bar Ass’n, 436 U.S.

447, 460 (1978). Thus, the Bar’s first asserted interest is substantial, meaning that

the Bar may regulate Mr. Mason’s commercial speech if it can show that the

regulation directly addresses an actual harm.

       The Bar also asserts an interest in ensuring that the public has access to

relevant information to assist in the comparison and selection of attorneys. Again,

there is little question that the state, as part of its duty to regulate attorneys, has an

interest in ensuring and encouraging the flow of helpful relevant information about

attorneys. See Peel, 496 U.S. at 110 (“Information about certification and

specialties facilitates the consumer’s access to legal services and thus better serves


                                             7
the administration of justice.”). Accordingly, the Bar’s second asserted interest is

also substantial.

      Finally, the Bar contends that it has an interest in encouraging attorney

rating services to use objective criteria. The Florida Bar offers no reason for its

preference for objective criteria over subjective criteria, and the existing case law

contributes little additional guidance on the matter. Because we fail to see the value

in the distinction between objective and subjective criteria in the specific context

before us, we must reject the Bar’s third asserted “substantial”interest.

                                           2.

      Although the Bar has asserted two substantial interests in the abstract, its

restrictions on Mason’s speech do not necessarily serve those interests. The

penultimate prong of the Central Hudson test requires a state’s restrictions on

speech to target an identifiable harm and mandates that the state’s restrictions on

speech mitigate against such harm in a direct and effective manner. See Ibanez, 512

U.S. at 146; Edenfield 507 U.S. at 773. A state cannot satisfy its burden to

demonstrate that the harms it recites are real and that its restrictions will alleviate

the identified harm by rote invocation of the words “potentially misleading.” See

Ibanez, 512 U.S. at 146 (quoting Edenfield, 507 U.S. at 771).




                                            8
      The Bar does not view the statement that an attorney is “‘AV’ Rated” as

“potentially misleading.” In fact, the Bar permits reference to one’s “AV” rating

without a disclaimer and explicitly acknowledges that Martindale-Hubbell is a

highly respected and valuable source of attorney information. Instead, the Bar

balks at Mason’s addition of the words “the Highest Rating.” The Bar contends

that the entire phrase “‘AV’ Rated, the Highest Rating” will mislead the public to a

degree not present with only the words “‘AV’ rated.” The Bar takes this position

based on the belief that the general public’s unfamiliarity with Martindale-Hubbell

and the criteria used by Martindale-Hubbell to rate an attorney will lead the public

to misconstrue and overvalue the phrase “‘AV” Rated, the Highest Rating.”

      In support of its position, the Bar offered the affidavit and testimony of the

Bar’s director of advertising and ethics, Ms. Tarbert, and portions of the 1998

Martindale-Hubbell Law Directory. Ms. Tarbert did not testify to any anecdotal

accounts of actual harm to members of the general public misled by

characterizations of Martindale-Hubbell’s rating system, nor did the district court

make a factual finding that any person had been misled or deceived by Mason’s ad

or a similar ad. Ms. Tarbert merely offered the Bar’s “simple common sense” to

support its view that application of Rule 4-7.2(j) targeted an identifiable harm and

furthered substantial state interests in a direct and material matter.


                                           9
      In addition to Ms. Tarbert’s common sense concerns, the Bar offered the

Introduction to the Martindale-Hubbell Law Directory to support its conclusion

that the directory was intended primarily for use within the legal community. The

Introduction to the directory provides in part, that Martindale-Hubbell is “the legal

community’s most widely consulted and most respected directory of lawyers and

law firms” and that the directory’s objective is to “meet the legal community’s

ever-evolving information needs.” Based on the Bar’s evidence, the district court

reached the conclusion that public’s unfamiliarity with the Martindale-Hubbell

Law Directory makes Mason’s reference to the directory dangerously misleading.

      The district court’s conclusion is something of a non sequitur. Unfamiliarity

is not synonymous with misinformation. See Ibanez, 512 U.S. at 147. As the

Supreme Court explained in Peel, “there is no evidence that the consumers . . . are

misled if they do not inform themselves of the precise standards under which

claims of certification are allowed.” 496 U.S. at 102-03 (referring to certification

given by the National Board of Trial Advocacy, a non-state agency). Similarly,

consumers need not be familiar with, nor fully understand, Martindale-Hubbell’s

ratings system in order to find it useful and not misleading. A rating, like a claim of

certification, “is not an unverifiable opinion of the ultimate quality of a lawyer’s

work or a promise of success, but is simply a fact, albeit one with multiple


                                          10
predicates, from which a consumer may or may not draw an inference of the likely

quality of an attorney’s work . . .” Id. at 101. Accordingly, even if the district court

properly inferred from the Introduction to Martindale-Hubbell that the general

public is unfamiliar with the ratings system, this fact alone does not justify

imposition of a disclaimer requirement on Mason’s truthful advertisement.3

      Moreover, the Bar presented no studies, nor empirical evidence of any sort

to suggest that Mason’s statement would mislead the unsophisticated public. While

empirical data supporting the existence of an identifiable harm is not a sine qua

non for a finding of constitutionality, the Supreme Court has not accepted

“common sense” alone to prove the existence of a concrete, non-speculative harm.

See e.g., Ibanez, 512 U.S. at 147 (striking down a disclaimer requirement because

the state failed “to back up its alleged concern that the [speech] would mislead

rather than inform”); Edenfield, 507 U.S. at 770-01 (rejecting the state’s asserted

harm because the state had presented no studies, nor anecdotal evidence to support

its position); Peel, 496 U.S. at 108 (rejecting a claim that certain speech was



      3
       As in Ibanez, “[b]eyond question, this case does not fall within the caveat
noted in Peel covering certifications issued by organizations that ‘had made no inquiry
into petitioner’s fitness, or had ‘issued certificates indiscriminately for a price’;
statements made in such certifications, ‘even if true, could be misleading.’” 512 U.S.
at 148. The parties in this case agree that Martindale-Hubbell is a highly reputable
publication.
                                           11
potentially misleading for lack of empirical evidence); Zauderer, 471 U.S. at 648-

49 (striking down restrictions on attorney advertising where “[t]he State’s

arguments amount to little more than unsupported assertions”). To the contrary, the

law in this field has emphatically dictated that “rote invocation of the words

‘potentially misleading,’” Ibanez, 512 U.S. at 146, does not relieve the state’s

burden to “demonstrate that the harms it recites are real and that its restriction will

in fact alleviate them to a material degree.” Id. (quoting Edenfield, 507 U.S. at

771).

        “The party seeking to uphold a restriction on commercial speech carries the

burden of justifying it,” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20

(1983), and “[t]his burden is not satisfied by mere speculation or conjecture,”

Edenfield, 507 U.S. at 770-71. The Bar has the burden in this case of producing

concrete evidence that Mason’s use of the words “‘AV’ Rated, the Highest Rating”

threatened to mislead the public. The Bar’s inferences from the Introduction to

Martindale-Hubbell are mere speculation, and Ms. Tarbert’s testimony reveals that

the Bar’s concerns consist of unsupported conjecture. This court is unwilling to

sustain restrictions on constitutionally protected speech based on a record so bare

as the one relied upon by the Bar here. See Ibanez, 512 U.S. at 148.




                                           12
      The Bar argues that its restriction on Mason’s speech should be upheld

because it has not insisted upon an outright ban on speech, but merely requires the

use of a disclaimer. But given the glaring omissions in the record of identifiable

harm, we see little merit in this argument. When faced with a record similarly

devoid of proof of actual harm, the Supreme Court rejected this argument, stating:

      Given the state of this record – the failure of the Board to point to any
      harm that is potentially real, not purely hypothetical – we are satisfied
      that the Board’s action is unjustified. We express no opinion whether, in
      other situations or on a different record, the Board’s insistence on a
      disclaimer might serve as an appropriately tailored check against
      deception or confusion, rather than one imposing “unduly burdensome
      disclosure requirements [that] offend the First Amendment.”

Ibanez, 512 U.S. at 146 (quoting Zauderer, 471 U.S. at 651). Even partial

restrictions on commercial speech must be supported by a showing of some

identifiable harm. Accordingly, we hold that the Bar is not relieved of its burden to

identify a genuine threat of danger simply because it requires a disclaimer, rather

than a complete ban on Mason’s speech. Since we conclude that the Bar has failed

to satisfy the second prong of Central Hudson, we need not address the “fit”

between the regulation and the state’s interests -- Central Hudson’s final prong.



                                         B.




                                         13
      Mason also argues that the term “self-laudatory” contained in Rule 4-7.2(j)

is inherently subjective, and because the Bar does not have written guidelines or

restrictions implementing 4-7.2(j), it is unconstitutionally vague. Mason points

specifically to the advertisements of his peers, arguing that Rule 4-7.2(j) is infirm

because it is subject to arbitrary decision making. Absent specific guidelines,

argues Mason, the Bar retains unbridled discretion over its interpretation and

application of the Rule.

      Vagueness arises when a statute is so unclear as to what conduct is

applicable that persons of common intelligence must necessarily guess at its

meaning and differ as to its application. See Broadrick v. Oklahoma, 413 U.S. 601,

607 (1973). “The root of the vagueness doctrine is a rough idea of fairness.” Arnett

v. Kennedy, 416 U.S. 134, 159 (1974) (quoting Colten v. Kentucky, 407 U.S. 104

(1972)). The void-for-vagueness doctrine serves two central purposes: (1) to

provide fair notice of prohibitions, so that individuals may steer clear of unlawful

conduct; and (2) to prevent arbitrary and discriminatory enforcement of laws. See

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “A vague law

impermissibly delegates basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary

and discriminatory application.” Id. at 108-09.


                                          14
      Although Mason is correct that Rule 4-7.2(j) is capable of multiple meanings

and potentially very broad application, the Rule’s language is plain and would

adequately put Bar members on notice that merely self-referential and laudatory

statements or statements describing the quality of their legal services are

prohibited.4 Consequently, we reject Mason’s facial challenge to Rule 4-7.2(j) and

affirm that part of the district court’s judgment dealing with the void-for-vagueness

challenge.



                                         III.

      In conclusion, we hold that the district court erred in finding Rule 4-7.2(j) of

the Rules Regulating the Florida Bar to be a constitutional restriction on Mason’s

commercial speech. Rule 4-7.2(j) impermissibly curtails non-misleading

commercial speech. Accordingly, we reverse that part of the district court’s

judgment which holds that Rule 4-7.2(j) did not infringe upon Mason’s First



      4
       In addition, the availability of advisory opinions to gauge the application of
Rule 4-7.2(j) to specific situations bolsters its validity. See Arnett, 416 U.S. at 160
(noting the importance of advisory procedure in rejecting vagueness contentions);
United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548,
580 (1973) (“It is also important in this respect that the Commission has established
a procedure by which an employee in doubt about the validity of a proposed course
of conduct may seek and obtain advice from the Commission and thereby remove any
doubt there may be as to the meaning of the law . . .”).
                                          15
Amendment rights. We affirm, however, that part of the district court’s judgment

in favor of the Bar which rejects Mason’s void-for-vagueness facial challenge to

Rule 4-7.2(j).

AFFIRMED in part, REVERSED in part.




                                        16
HILL, Senior Circuit Judge, concurring specially:

      Inasmuch as the dissent by Justice Powell in Bates v. State Bar of Arizona,

433 U.S. 350 (1977) is not the precedent that binds us, and

      Inasmuch as Judge Dubina has correctly analyzed and applied the binding

precedent,

      I concur.




                                        17
