An Orlando attorney prevailed in his First Amendment dispute with the Florida Bar over the right to make truthful comments in a yellow pages ad. A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled in April 2000 that the Florida Bar violated the commercial speech rights of attorney Steven Mason when it refused his ad, which stated that he had received the highest rating given to attorneys by the Martindale-Hubbell legal directory. Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000).

    Mason’s ad stated in part that he was "‘AV’ Rated" -- a true statement, as Mason had received the AV rating in 1996. However, Florida Bar officials said Mason’s ad violated a Florida Bar rule prohibiting "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 rule states. The Bar required Mason to include "a full explanation as to the meaning of the AV rating and how the publication chooses the participating attorneys."

    After exhausting his administrative remedies, Mason sued in federal court in 1997, contending the Bar violated his First Amendment free-speech rights. In December 1998, U.S. district court Judge G. Kendall Sharp sided with the Florida Bar, ruling that the "disclaimer requirement does not infringe upon Mr. Mason’s constitutional rights."

    On appeal, the Eleventh Circuit reversed in Mason v. Florida Bar. The court noted that "commercial speech ... is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution." The Eleventh Circuit analyzed the Florida Bar restriction on Mason’s truthful speech under the U.S. Supreme Court’s commercial speech test laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

    The Florida Bar contended that its rule served three substantial governmental interests: (1) protecting the public from misleading or potentially misleading attorney ads; (2) ensuring that the public has access to relevant information to assist in selecting attorneys; and (3) encouraging attorney ratings services to use objective criteria.

    The Eleventh Circuit upheld the first two interests as substantial. The court cited the U.S. Supreme Court’s 1978 decision in Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), for the proposition that "the state has both a general interest in protecting consumers, as well as a special interest to regulate lawyers." The appeals court also determined that the Florida Bar had a substantial interest in encouraging public access to information about attorneys, citing Peel v. Attorney Registration & Disciplinary Commission, 496 U.S. 91 (1990).

    The appeals court panel then determined that the Florida Bar could not show that its restrictions directly and materially advanced the state’s interests. The Bar argued that because the general public is unfamiliar with Martindale-Hubbell, Mason’s ad was potentially misleading. The Bar argued that the wording of Mason’s ad would cause the public to misconstrue and overvalue the statement that he had received the "Highest Rating."

    However, the appeals court wrote that "consumers need not be familiar with, nor fully understand, Martindale Hubbell’s ratings system in order to find it useful and not misleading." The appeals court also emphasized that the Florida Bar presented no concrete evidence that the ad would mislead the public. "Moreover, the Bar presented no studies, nor empirical evidence of any sort to suggest that Mason’s statement would mislead the unsophisticated public," the Eleventh Circuit wrote.

    The appeals court noted the Supreme Court’s holding in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), that the party seeking to uphold a regulation on commercial speech carries the burden of justifying the regulation. The court also cited the U.S. Supreme Court’s decision in Edenfield v. Fane, 507 U.S. 761 (1993), for the proposition that "the burden is not satisfied by mere speculation or conjecture."

    The Florida Bar argued that its restriction on Mason’s ad should be upheld because it only required him to include a disclaimer, rather than ban his speech outright. The Eleventh Circuit also rejected this argument, writing: "Even partial restrictions on commercial speech must be supported by a showing of some identifiable harm." The Florida Bar chose not to appeal the decision.