However, Florida Bar officials said Mason's ad violated a Florida Bar rule prohibiting "self-laudatory" statements. That provision provided: "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."

On appeal, the U.S. Court of Appeals for 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 Central Hudson test.

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 rating services to use objective criteria.

The Eleventh Circuit upheld the first two interests as substantial. The court cited the Supreme Court's 1978 Ohralik decision 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.

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. However, the appeals court 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 U.S. Supreme Court's holding in Bolger v. Youngs Drug Products Corp., that the party seeking to uphold a regulation on commercial speech carries the burden of justifying the regulation. The court also noted that the Supreme Court determined in Edenfield v. Fane 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."

As of April 25, the Florida Bar had not yet decided whether to appeal the ruling.

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David L. Hudson, Jr. is a research attorney at The Freedom Forum First Amendment Center in Nashville.