harrell v. florida bar 1285 - gupta...

1285HARRELL v. FLORIDA BARCite as 915 F.Supp.2d 1285 (M.D.Fla. 2011)

there is no evidence of numerous and egre-gious violations of such an extent thatPlaintiff incurred a substantial harm to herERISA rights. Indeed, it is absurd forPlaintiff to claim that Boston Mutual’s fail-ure to notify her of certain ERISA rightsin its denial letters somehow compromisedthose rights when she fully exhausted heradministrative remedies under the Planand has timely filed file and fully pursuedthis action.

Given the lack of any evidence showingan alleged substantive harm to Plaintiff’sERISA rights caused by the alleged proce-dural violations in Boston Mutual’s denialletters, Plaintiff’s theory of relief premisedon violations of 29 U.S.C. § 1133 fails as amatter of law. Accordingly, for the rea-sons set forth above, Boston Mutual’s mo-tion for summary judgment with respect toCount II of Plaintiff’s Amended Complaintis due to be GRANTED, and Plaintiff’smotion for summary judgment with re-spect to Count II of the Amended Com-plaint is due to be DENIED.

VII. CONCLUSIONIn accordance with this Memorandum

Opinion and Order, Plaintiff DorothySnow’s Motion for Summary Judgment(Doc. # 31) is due to be and hereby isDENIED, and Defendant Boston MutualInsurance Company’s Motion for SummaryJudgment (Doc. # 32) is due to be andhereby is GRANTED as to Count II andDENIED as to Count I of Plaintiff’sAmended Complaint.

,

William H. HARRELL, Jr., Harrell &Harrell, P.A., and Public Citizen,

INC., Plaintiffs,

v.

The FLORIDA BAR, et al., Defendants.

Case No. 3:08–cv–15–J–34TEM.

United States District Court,M.D. Florida,

Jacksonville Division.

Sept. 30, 2011.

Background: Attorney, joined by his lawfirm and a nonprofit organization, broughtaction seeking a declaratory judgment andinjunctive relief, alleging that nine sepa-rate provisions of the Florida Bar’s adver-tising rules imposed unconstitutional con-tent-based restrictions on his commercialspeech, and that the rules were impermis-sibly vague and, therefore, facially invalidunder the Fourteenth Amendment’s dueprocess clause. The United States DistrictCourt for the Middle District of Florida,No. 08-00015-CV-J-34TEM, Marcia M.Howard, J., granted summary judgment inthe Bar’s favor. Attorney, law firm, andnonprofit organization appealed. The Unit-ed States Court of Appeals for the Elev-enth Circuit, 608 F.3d 1241, affirmed inpart, reversed in part, and remanded. Onremand, attorney and Bar filed cross-mo-tions for summary judgment.

Holdings: The District Court, MarciaMorales Howard, J., held that:

(1) Florida Bar rules prohibiting state-ments describing or characterizing the

to request plan documents or the claim filefree of charge; and (4) that Plaintiff has aright to bring suit under 29 U.S.C. § 1132(a).See 29 C.F.R. § 2560.503–1(g) (setting forthminimum requirements for denial letters un-der 29 U.S.C. § 1133). Plaintiff furtherclaims that the second denial letter failed to

include: (1) that Plaintiff has an opportunityto request plan documents or the claim filefree of charge; and (2) that Plaintiff has aright to bring suit under 29 U.S.C. § 1132(a).See 29 C.F.R. § 2560.503–1(j) (setting forthminimum requirements for review determina-tion letters under 29 U.S.C. § 1133).

1286 915 FEDERAL SUPPLEMENT, 2d SERIES

quality of the lawyer’s services andcommunications which ‘‘promise re-sults’’ were not impermissibly vague;

(2) comment to Florida Bar rule statingthat lawyer advertisements should pro-vide only ‘‘useful, factual information’’was impermissibly vague; and

(3) application of Florida Bar rule prohib-iting statements describing the qualityof a lawyer’s services and rule categor-ically prohibiting background soundsand vocal music in lawyer advertisingso as to prohibit lawyer from usingadvertising slogan ‘‘Don’t settle for lessthan you deserve’’ was an unconstitu-tional restriction of lawyer’s FirstAmendment rights.

Plaintiff’s motion granted in part and de-nied in part.

1. Constitutional Law O3905

A claimant asserting that a statute isvoid for vagueness in violation of due pro-cess must prove either that the statutefails to give fair notice of wrongdoing orthat the statute lacks enforcement stan-dards such that it might lead to arbitraryor discriminatory enforcement. U.S.C.A.Const.Amend. 14.

2. Constitutional Law O3905, 4033, 4034

Degree of vagueness that due processclause tolerates, as well as the relativeimportance of fair notice and fair enforce-ment, depends in part on the nature of theenactment; Constitution demands a highlevel of clarity from a law if it threatens toinhibit the exercise of a constitutionallyprotected right, such as the right of freespeech or religion. U.S.C.A. Const.Amends. 1, 14.


Economic regulation is subject to aless strict vagueness test under due pro-

cess clause than a law if it threatens toinhibit the exercise of a constitutionallyprotected right because its subject matteris often more narrow, and because busi-nesses, which face economic demands toplan behavior carefully can be expected toconsult relevant legislation in advance ofaction; regulated enterprise may have theability to clarify the meaning of the regula-tion by its own inquiry, or by resort to anadministrative process. U.S.C.A. Const.Amend. 14.

4. Constitutional Law O1536, 1537, 4034

Commercial speech is expression thatis inextricably related to the economic in-terests of the speaker and audience, and isundeniably entitled to substantial protec-tion under the First and FourteenthAmendments of the United States Consti-tution; nevertheless, such speech holds asubordinate position in the scale of FirstAmendment values. U.S.C.A. Const.Amends. 1, 14.

5. Statutes O1123

Where a statute does not define aterm, a court must give words their com-mon and ordinary meaning, absent someestablished technical definition, unless thelegislature intended otherwise.

6. Attorney and Client O32(9)

Constitutional Law O4273(1)

Florida Bar rules prohibiting state-ments describing or characterizing thequality of the lawyer’s services and com-munications which ‘‘promise results’’ werenot impermissibly vague in violation of dueprocess; terms had a core meaning suchthat they provided a sufficiently clear anddefinite standard to those charged withenforcing them, and did not delegate somuch authority to those charged with en-forcing them that there was a risk of arbi-


trary or discriminatory enforcement.U.S.C.A. Const.Amend. 14.


A plaintiff who engages in some con-duct that is clearly proscribed cannot com-plain of the vagueness of the law as ap-plied to the conduct of others.



Florida Bar rule prohibiting ‘‘manipu-lative’’ features in lawyer advertisementswas impermissibly vague in violation ofdue process; rule failed to provide ade-quate notice of what was prohibited andwas susceptible to arbitrary enforcement,and, in the absence of any objective crite-ria or applicable standards, the Bar hadunbridled discretion in determining whichadvertisements it wished to prohibit asimpermissibly ‘‘manipulative.’’ U.S.C.A.Const.Amend. 14.



Comment to Florida Bar rule statingthat lawyer advertisements should pro-vide only ‘‘useful, factual information’’ wasimpermissibly vague in violation of dueprocess; because lawyers of common intel-ligence could easily differ on what consti-tuted ‘‘useful’’ information in an attorneyadvertisement, provision failed to provideany notice, much less ‘‘fair notice’’ ofwhat was prohibited to the members ofthe Florida Bar. U.S.C.A. Const.Amend.14.

10. Federal Civil Procedure O2552

Court need not scour un-cited portionsof the summary judgment record, search-ing for evidence that might bolster eitherside’s argument.


Where a plaintiff mounts an as-ap-plied First Amendment challenge to analleged burden on commercial speech, par-ty seeking to uphold the restriction oncommercial speech carries the burden ofjustifying it. U.S.C.A. Const.Amend. 1.


With respect to regulation of com-mercial speech under First Amendment,government may not place an absoluteprohibition on certain types of potentiallymisleading information if the informationalso may be presented in a way that is notdeceptive. U.S.C.A. Const.Amend. 1.


Even a communication that does nomore than propose a commercial transac-tion is entitled to the coverage of the FirstAmendment. U.S.C.A. Const.Amend. 1.


Constitutional Law O2049

Application of Florida Bar rule pro-hibiting statements describing the qualityof a lawyer’s services and rule categorical-ly prohibiting background sounds and vo-cal music in lawyer advertising so as toprohibit lawyer from using advertising slo-gan ‘‘Don’t settle for less than you de-serve’’ was an unconstitutional restrictionof lawyer’s First Amendment rights; slo-gan was commercial speech which did notpropose an unlawful transaction, was notfalse, deceptive or misleading, and rulesdid not advance the Bar’s asserted sub-stantial interests advertising ‘‘in a directand effective manner.’’ U.S.C.A. Const.Amend. 1.

15. Courts O85(2)

When the language of a rule is clearand unambiguous and conveys a clear and


definite meaning, there is no occasion forresorting to the rules of statutory inter-pretation and construction; the rule mustbe given its plain and obvious meaning.


To satisfy First Amendment, a state’srestrictions on commercial speech musttarget an identifiable harm and must miti-gate against such harm in a direct andeffective manner; mere speculation or con-jecture are not sufficient to satisfy thegovernment’s burden. U.S.C.A. Const.Amend. 1.

Brian Wolfman, Gregory A. Beck, PublicCitizen Litigation Group, Washington, DC,David Michael Frank, David Frank InjuryLaw, PA, Tallahassee, FL, for Plaintiffs.

Barry Scott Richard, Bridget KelloggSmitha, Mary Hope Keating, Tallahassee,FL, for Defendants.

ORDER

MARCIA MORALES HOWARD,District Judge.

THIS CAUSE is before the Court onPlaintiffs’ Motion for Summary Judgmentand Memorandum in Support of Motion(Doc. No. 62; Harrell Motion) filed onNovember 18, 2010. In addition, on De-cember 17, 2010, Defendants 1 filed Defen-dants’ Motion for Summary Judgment andMemorandum of Law in Support of Motionand in Opposition to Plaintiff’s [sic] Motionfor Summary Judgment (Doc. No. 65; BarMotion). Harrell filed Plaintiffs’ Response

to Defendants’ Motion for Summary Judg-ment and Reply in Support of Plaintiffs’Motion for Summary Judgment (Doc. No.67; Harrell Response) on January 18,2011. Thereafter, on January 25, 2011, theBar filed Defendants’ Reply Memorandumon Motions for Summary Judgment (Doc.No. 68; Bar Reply). On July 7, 2011, theCourt held a hearing on these motions.See Minute Entry (Doc. No. 74; MotionHearing). Accordingly, this matter is fullybriefed and ripe for review.

I. Procedural History

Harrell initiated this action on January7, 2008, by filing a Complaint for Declara-tory and Injunctive Relief (Doc. No. 1;Complaint) against the Bar, asserting,pursuant to 42 U.S.C. § 1983, that certainprovisions of The Florida Bar’s Rules ofProfessional Conduct contained within theRules Regulating The Florida Bar (Rules)violate the First and Fourteenth Amend-ments, and seeking to invalidate theserules and restrain further enforcement ofthe provisions at issue. See Complaint at2–3. In the Complaint, Harrell alleged:(1) ‘‘a broad facial challenge that nine ad-vertising-related provisions of the [Rules]are so vague as to violate his due processrights,’’ (2) an as-applied challenge, that‘‘the same rules violate his First Amend-ment rights by prohibiting him from ad-vertising in a variety of specific ways, in-cluding through the use of a slogan—‘Don’t settle for less than you deserve,’ ’’and (3) that ‘‘a requirement that lawyerssubmit proposed radio and television ad-vertisements to the Florida Bar for reviewat least twenty days before their dissemi-nation’’ amounted to an unconstitutional

1. The Court will refer to Defendants as theFlorida Bar (the Bar) and to Plaintiffs as

William H. Harrell, Jr. (Harrell).


burden on his speech. See Harrell v. Fla.Bar, 608 F.3d 1241, 1247 (11th Cir.2010).On January 28, 2008, the Bar filed a mo-tion requesting that the Court abstainfrom hearing claims in this matter per-taining to Rule 4–7.5(b)(1)(C) 2 ‘‘becausean amendment to this Rule is currentlyunder consideration.’’ See The Florida BarDefendants’ Motion to Abstain or in theAlternative Strike and Supporting Memo-randum of Law (Doc. No. 12; Motion toAbstain) at 1. However, the Court rejectedthe Bar’s abstention request stating that‘‘[t]his Court is duty-bound to addressproperly raised constitutional issues, andDefendants’ non-committal remark thatthe Bar may alter a challenged rule doesnot relieve this Court of its duties.’’ SeeOrder (Doc. No. 16) (Covington, J.), en-tered February 29, 2008, 2008 WL 596086.

On May 1, 2008, the Bar filed The Flor-ida Bar Defendants’ Motion to Dismiss forLack of Case or Controversy and Sup-porting Memorandum of Law (Doc. No.22; Motion to Dismiss). In the Motion toDismiss, the Bar argued, among otherthings, that the Bar’s recent approval ofHarrell’s use of the phrase, ‘‘Don’t settlefor less than you deserve,’’ rendered thematter moot because Harrell could nolonger be disciplined for disseminatingany of the advertisements previously sub-mitted to the Bar for approval. See Mo-tion to Dismiss at 3. The Bar reassertedthis argument in The Florida Bar Defen-dants’ Motion for Summary Judgment andMemorandum of Law (Doc. No. 25; Mo-tion for Summary Judgment), filed on

September 15, 2008. In addition, the Barmaintained that the Florida Bar Board ofGovernors (the Board) 3 would be petition-ing the Florida Supreme Court to amendthe Rules to delete Rule 4–7.5(b)(1)(C).Id. at 4–5. Although the Bar did not af-firmatively request that the Court abstainfrom considering Harrell’s claims or re-solving this action, the Bar did ‘‘seem tosuggest that an abstention may be moreappropriate [at that time] as the amend-ment process [was] much further alongthan when they filed the Motion to [Ab-stain]TTTT’’ See Harrell v. Fla. Bar (Har-rell I), No. 3:08–cv–15–J–34TEM, 2009WL 6982396, at *6 n. 4 (M.D.Fla. Mar. 30,2009).

On March 30, 2009, the Court enteredan Order (Doc. No. 50) granting summaryjudgment in favor of the Bar as to all ofHarrell’s claims. See Harrell I, 2009 WL6982396, at *31. The Court held that theBoard’s approval of Harrell’s current ad-vertisements rendered Harrell’s challengesas to those advertisements moot. Id.Next, with respect to Harrell’s proposedadvertisements, the Court concluded that,except as to Harrell’s prior restraint chal-lenge to Rule 4–7.7(a), Harrell did nothave standing to assert his facial and as-applied challenges to the Rules, or, if Har-rell did have standing, that those chal-lenges were premature. Id. at *29. Fi-nally, the Court considered the challengeto Rule 4–7.7(a) on the merits and deter-mined that Rule 4–7.7(a) was not an uncon-stitutional prior restraint. Id. at *31.

Harrell appealed this Court’s ruling, andon June 17, 2010, the Eleventh Circuit

2. Rule 4–7.5(b)(1)(C) prohibits the use of ‘‘anybackground sound other than instrumentalmusic’’ in television and radio advertise-ments.

3. The Board of Governors is the Florida Bar’schief governing body. See Second Harrell

Declaration (Doc. No. 29, Ex. 1; HarrellDecl.), Ex. 13: Florida Bar Procedures forIssuing Advisory Opinions Relating to LawyerAdvertising or Solicitations (Procedures)§ 4(h).


Court of Appeals affirmed in part, re-versed in part, and remanded the matterto this Court ‘‘for consideration of Har-rell’s justiciable claims on the merits.’’See Harrell v. Fla. Bar (Harrell II), 608F.3d 1241, 1271 (11th Cir.2010). Specifi-cally, the Eleventh Circuit held as follows:

Harrell has standing to challenge Rules4–7.1, 4–7.2(c)(1)(G), 4–7.2(c)(2), 4–7.2(c)(3), and 4–7.5(b)(1)(A) on vague-ness grounds, and those vaguenessclaims are also ripe for review. Fur-ther, Harrell’s as-applied challenge tothe rejection of his slogan ‘‘Don’t settlefor less than you deserve’’ is not moot.However, although Harrell has standingto challenge all nine of the Bar’s identi-fied rules as unconstitutional encroach-ments on his desired speech, these as-applied claims are not ripe for judicialreview, with the single exception of Har-rell’s attack on Rule 4–7.5(b)(1)(C), pro-hibiting background sounds other thaninstrumental music. Harrell’s constitu-tional challenge to the Bar’s pre-filingrule, Rule 4.7.7(a)(1)(A), fails becausethe rule is not a prior restraint anddirectly serves important state interestsin a reasonably well-tailored fashion.

See Harrell II, 608 F.3d at 1271. Uponremand, Harrell filed an Amended Com-plaint for Declaratory and Injunctive Re-lief (Doc. No. 59; Amended Complaint) onSeptember 20, 2010, setting forth thoseclaims found to be justiciable in Harrell II.The Bar filed Defendants’ Consented

Amended Answer to Amended Complaint(Doc. No. 61; Amended Answer) on No-vember 4, 2010. Thereafter, the partiesfiled the instant cross-motions for sum-mary judgment seeking resolution of thismatter. The Court heard argument fromthe parties at the Motion Hearing on July7, 2011. At the Hearing, the partiesagreed that there are no disputed issues ofmaterial fact and that the Court shouldtherefore resolve this matter on summaryjudgment.4

II. Background Facts

The Eleventh Circuit set forth in detailthe factual background of this case in Har-rell II such that the Court need not re-state those facts here. See Harrell II, 608F.3d at 1247–53. In accordance with theEleventh Circuit’s ruling, the followingRules remain at issue in this lawsuit.Rule 4–7.1 provides general regulationsapplicable to all types of attorney advertis-ing, including a list of the permissibleforms of advertising as well as the types ofcommunications covered by the Rules.The comment to this Rule provides a list ofinformation that may be contained in theadvertisement and explains that ‘‘regard-less of medium, a lawyer’s advertisementshould provide only useful, factual informa-tion presented in a nonsensational man-ner.’’ Rule 4–7.1, cmt.

In Rule 4–7.2, the Bar requires certaininformation and disclosures to be includedin all advertisements, provides a specific

4. In the Bar Motion, the Bar asserts that‘‘[t]his Court’s ruling that Public Citizens [sic]has no standing in this matter was not appeal-ed and is the law-of-the-case.’’ See Bar Mo-tion at 1 n. 1. However, to the extent thisfootnote could be construed as a challenge toPublic Citizen’s standing, the Bar withdrewfrom this position at the Motion Hearing,stating that it has no objection to Public Citi-

zen’s participation in the case. Indeed, be-cause the Eleventh Circuit found that Harrellhas standing to bring these claims, PublicCitizen may also remain in the lawsuit. SeeHarrell II, 608 F.3d at 1253 n. 3 (‘‘[O]nly oneparty need have standing to satisfy the case orcontroversy requirement.’’ (citing OuachitaWatch League v. Jacobs, 463 F.3d 1163, 1170(11th Cir.2006))).


list of information that may be containedin advertisements, and prohibits advertise-ments from containing certain types ofcommunications. Harrell challenges inparticular Rule 4–7.2(c)(1)(G) which pro-vides that:

[a] lawyer shall not make or permit tobe made a false, misleading, or deceptivecommunication about the lawyer or law-yer’s services. A communication vio-lates this rule if it: TTT (G) promisesresults;

Rule 4–7.2(c)(1)(G). Additionally, Harrellcontests the validity of Rules 4–7.2(c)(2)and 4–7.2(c)(3) which preclude an attorneyfrom making ‘‘statements describing orcharacterizing the quality of the lawyer’sservices in advertisements and unsolicitedwritten communications’’ as well as fromincluding ‘‘any visual or verbal descrip-tions, depictions, illustrations, or portrayalof persons, things, or events that are de-ceptive, misleading, manipulative, or likelyto confuse the viewer.’’ Rule 4–7.5 gov-erns advertisements published using elec-tronic media, other than computer-basedcommunications, such as television and ra-dio. This Rule provides certain additionalrestrictions as well as a list of the permis-sible content for these advertisements.Specifically, Harrell challenges Rule 4–

7.5(b)(1)(C) which prohibits the use of ‘‘anybackground sound other than instrumentalmusic,’’ as well as Rule 4–7.5(b)(1)(A)which prohibits ‘‘any feature that is decep-tive, misleading, manipulative, or that islikely to confuse the viewer.’’ Harrell re-quests that the Court declare these Rulesto be unconstitutional and issue a perma-nent injunction against their enforcement.5

See Amended Complaint at 10–11.

III. Standard of Review

Under Rule 56, Federal Rules of CivilProcedure, ‘‘[t]he court shall grant sum-mary judgment if the movant shows thatthere is no genuine dispute as to any mate-rial fact and the movant is entitled tojudgment as a matter of law.’’ Fed.R.Civ.P. 56(a). The record to be consid-ered on a motion for summary judgmentmay include ‘‘depositions, documents, elec-tronically stored information, affidavits ordeclarations, stipulations (including thosemade for purposes of the motion only),admissions, interrogatory answers, or oth-er materials.’’ Fed.R.Civ.P. 56(c)(1)(A).6

An issue is genuine when the evidence issuch that a reasonable jury could return averdict in favor of the nonmovant. SeeMize v. Jefferson City Bd. of Educ., 93F.3d 739, 742 (11th Cir.1996)(quoting

5. In the Amended Complaint, Harrell alsorequests that the Court enjoin the enforce-ment of Bar Rule 4–7.2(c)(1)(I) which prohib-its statements that ‘‘compare[ ] the lawyer’sservices with other lawyers’ services.’’ SeeAmended Complaint at 10. However, in Har-rell II, the Eleventh Circuit found that Har-rell’s claims as to that Rule were not justicia-ble. Harrell II, 608 F.3d at 1257, 1264–65.Harrell conceded at the Motion Hearing thathe cannot challenge Bar Rule 4–7.2(c)(1)(I)pursuant to the Eleventh Circuit’s holding,and thus, withdrew his challenge to that Rule.

6. Civil Procedure Rule 56 was revised in 2010‘‘to improve the procedures for presentingand deciding summary-judgment motions.’’

Fed.R.Civ.P. 56 advisory committee’s note2010 Amendments.

The standard for granting summary judg-ment remains unchanged. The language ofsubdivision (a) continues to require thatthere be no genuine dispute as to any mate-rial fact and that the movant be entitled tojudgment as a matter of law. The amend-ments will not affect continuing develop-ment of the decisional law construing andapplying these phrases.

Id. Thus, case law construing the former Rule56 standard of review remains viable and isapplicable here.


Hairston v. Gainesville Sun Publ’g Co., 9F.3d 913, 919 (11th Cir.1993)). ‘‘[A] merescintilla of evidence in support of the non-moving party’s position is insufficient todefeat a motion for summary judgment.’’Kesinger ex rel. Estate of Kesinger v. Her-rington, 381 F.3d 1243, 1247 (11th Cir.2004). The party seeking summary judg-ment bears the initial burden of demon-strating to the court, by reference to therecord, that there are no genuine issues ofmaterial fact to be determined at trial.See Clark v. Coats & Clark, Inc., 929 F.2d604, 608 (11th Cir.1991).

‘‘When a moving party has dischargedits burden, the non-moving party mustthen go beyond the pleadings, and by itsown affidavits, or by depositions, answersto interrogatories, and admissions on file,designate specific facts showing that thereis a genuine issue for trial.’’ Jeffery v.Sarasota White Sox, Inc., 64 F.3d 590,593–94 (11th Cir.1995) (internal citationsand quotation marks omitted). Substan-tive law determines the materiality offacts, and ‘‘[o]nly disputes over facts thatmight affect the outcome of the suit underthe governing law will properly precludethe entry of summary judgment.’’Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986). In determining whether summaryjudgment is appropriate, a court ‘‘mustview all evidence and make all reasonableinferences in favor of the party opposingsummary judgment.’’ Haves v. City ofMiami, 52 F.3d 918, 921 (11thCir.1995)(citing Dibrell Bros. Int’l, S.A. v.Banca Nazionale Del Lavoro, 38 F.3d1571, 1578 (11th Cir.1994)).

IV. Vagueness

A. Summary of the Arguments

In the Harrell Motion, Harrell chal-lenges five of the Rules on vagueness

grounds. First, Harrell asserts that theRules prohibiting ‘‘quality of service’’statements (Rule 4–7.2(c)(2)) and state-ments which ‘‘promise results’’ (Rule 4–7.2(c)(1)(G)) are unconstitutionally vague.Harrell maintains that the Florida Bar’sarbitrary and unpredictable application ofthose Rules demonstrates that the Ruleshave no standards to guide their enforce-ment. See Harrell Motion at 8–10. Withrespect to the two Rules prohibiting ‘‘ma-nipulative’’ advertisements (Rules 4–7.2(c)(3) and 4–7.5(b)(1)(A)) and the com-ment to Rule 4–7.1 requiring that ads con-tain only ‘‘useful, factual information,’’Harrell contends, not only that the FloridaBar has applied those provisions arbitrari-ly, but also that the text of those Rules isinherently vague. See Harrell Responseat 2–4. In support of his vagueness chal-lenges, Harrell juxtaposes various adver-tising decisions by the Bar and contendsthat these decisions reflect inconsistentand arbitrary applications of the Rules.

In the Bar Motion, the Bar argues thatHarrell cannot prevail in his challenge toRule 4–7.2(c)(2) prohibiting ‘‘quality of ser-vice’’ statements because the Eleventh Cir-cuit previously rejected a vagueness chal-lenge to a similar rule in Mason v. Fla.Bar, 208 F.3d 952 (11th Cir.2000). Addi-tionally, the Bar maintains that the terms‘‘useful,’’ ‘‘promises results,’’ and ‘‘manipu-lative’’ are commonly understood and donot ‘‘fail to give a person of ordinary intel-ligence fair notice of what is required andforbidden.’’ See Bar Motion at 7–8. Withrespect to ‘‘manipulative,’’ the Bar relieson securities statutes and rules using thatterm to support its contention that theword is not unconstitutionally vague. Id. at8–9. The Bar also argues that because‘‘manipulative’’ is used in conjunction with‘‘deceptive’’ and ‘‘misleading,’’ the Rulesprohibiting manipulative advertisements


‘‘give a lawyer a reasonable opportunity toknow what is prohibited.’’ Id. at 9. Inaddition, the Bar maintains that the avail-ability of procedures for lawyers ‘‘to clarifythe rules in question and to apprise law-yers of what the rules require’’ dictatesagainst a finding that the Rules are imper-missibly vague. In the Bar Motion, theBar responds to Harrell’s purported exam-ples of arbitrary applications of the Rulesto specific advertisements by offering ex-planations for the allegedly inconsistentoutcomes. See id. at 11–13; see also id.,Ex 1: Third Affidavit of Elizabeth ClarkTarbert (Third Tarbert Aff.) ¶¶ 8–12; Sec-ond Affidavit of Elizabeth Clark Tarbert(Doc. 33, Ex. 2; Second Tarbert Aff.)¶¶ 11–13. Finally, the Bar informs theCourt that it is in the process of substan-tially revising the Rules regulating lawyeradvertising. Id. at 22. Proposed revisionsto the Rules were approved by the Boardof Governors on May 27, 2011, and submit-ted to the Florida Supreme Court for ap-proval on July 5, 2011. See Notice ofFiling Proposed Rules (Doc. No. 73); seealso id., Ex. A: Proposed Amendments inLegislative Format (Revised Rules). Al-though the Bar does not affirmatively re-quest that the Court stay this matter orabstain from considering the pending Mo-tions, the Bar suggests that ‘‘[t]he Courtmay want to consider delaying final consid-eration of summary judgment motions andthe filing of supplemental memoranda untilafter final disposition of the proposed rules

revisions.’’ Id. at 23. The Bar adds that‘‘there seems to be little benefit to adjudi-cating rules that may cease to exist by thetime the challenge to the current rules isfinally resolved.’’ See Bar Reply at 10.Indeed, at the Motion Hearing, counsel forthe Bar informed the Court that the Barhas taken a position, although subject tothe Florida Supreme Court’s countermand,that it will not prosecute any violations ofthe current Rules if the conduct at issuewould not be a violation under the RevisedRules.7

B. Applicable Law

[1] Harrell asserts that Rules 4–7.2(c)(2) (quality of services), 4–7.2(c)(1)(G)(promises results), 4–7.2(c)(3) (manipu-lative), 4–7.5(b)(1)(A) (manipulative), andthe ‘‘useful and factual’’ requirement con-tained in the comment to Rule 4–7.1 areimpermissibly vague and therefore, faciallyinvalid under the Fourteenth Amend-ment’s Due Process Clause. ‘‘The tradi-tional test for whether a statute or regula-tion is void on its face is if it is so vaguethat ‘persons of common intelligence mustnecessarily guess at its meaning and differas to its application.’ ’’ See DA Mortg.,Inc. v. City of Miami Beach, 486 F.3d1254, 1271 (11th Cir.2007) (quoting Con-nally v. Gen. Constr. Co., 269 U.S. 385,391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)); seealso Mason v. Fla. Bar, 208 F.3d 952, 958(11th Cir.2000). In such cases, the vagueregulation is void on its face because it

7. The Bar’s argument with respect to the Re-vised Rules is unavailing. Although the Bardoes not cite any legal authority in support ofits position, the Bar appears to request thatthis Court refrain from deciding this case atleast until such time as the Florida SupremeCourt makes a decision on whether to adoptthe Revised Rules. However, neither the par-ties nor this Court can predict when such adecision will be forthcoming, and indeed, it

may be a year or more before the FloridaSupreme Court issues a ruling on this matter.Moreover, despite the Bar’s confidence in theRevised Rules, the Florida Supreme Courtmay reject the proposed revisions in whole orin part. As such, this Court will not delay theresolution of this case on the merits solelybecause the Bar hopes that the Florida Su-preme Court will adopt the Revised Rules, asdrafted, some time in the future.


‘‘may trap the innocent by failing to givefair notice of what is prohibited, may riskarbitrary or discriminatory enforcementby delegating too much authority to en-forcers, and—when the regulation impli-cates First Amendment freedoms—maychill the exercise of those freedoms.’’ SeeKonikov v. Orange Cnty., Fla., 410 F.3d1317, 1329 (11th Cir.2005) (citing Graynedv. City of Rockford, 408 U.S. 104, 108–09,92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). Ac-cordingly, ‘‘a claimant asserting that astatute is void for vagueness [must] proveeither that the statute fails to give fairnotice of wrongdoing or that the statutelacks enforcement standards such that itmight lead to arbitrary or discriminatoryenforcement.’’ Id.; see also Leib v. Hills-borough Cnty. Pub. Transp. Comm’n, 558F.3d 1301, 1310 (11th Cir.2009) (‘‘To over-come a vagueness challenge, statutes must‘give the person of ordinary intelligence areasonable opportunity to know what isprohibited, so that he may act accordingly,’and ‘must provide explicit standards forthose who apply them.’ ’’ (quotingGrayned, 408 U.S. at 108, 92 S.Ct. 2294)).

[2, 3] ‘‘The degree of vagueness thatthe Constitution tolerates—as well as therelative importance of fair notice and fairenforcement—depends in part on the na-ture of the enactment.’’ See Village ofHoffman Estates v. Flipside, Hoffman Es-tates, Inc., 455 U.S. 489, 498, 102 S.Ct.1186, 71 L.Ed.2d 362 (1982). ‘‘[T]he mostimportant factor affecting the clarity thatthe Constitution demands of a law iswhether it threatens the exercise of consti-tutionally protected rights.’’ Id. at 499,102 S.Ct. 1186. Thus, ‘‘the Constitutiondemands a high level of clarity from a lawif it threatens to inhibit the exercise of aconstitutionally protected right, such asthe right of free speech or religion.’’ Ko-nikov, 410 F.3d at 1329. In contrast,

economic regulation is subject to a lessstrict vagueness test because its subjectmatter is often more narrow, and be-cause businesses, which face economicdemands to plan behavior carefully canbe expected to consult relevant legisla-tion in advance of action. Indeed, theregulated enterprise may have the abili-ty to clarify the meaning of the regula-tion by its own inquiry, or by resort toan administrative process.

Hoffman Estates, 455 U.S. at 498, 102S.Ct. 1186 (footnotes omitted). Moreover,the Supreme Court ‘‘has ‘expressed great-er tolerance of enactments with civil ratherthan criminal penalties because the conse-quences of imprecision are qualitativelyless severe.’ ’’ Leib, 558 F.3d at 1310(quoting Hoffman Estates, 455 U.S. at498–99, 102 S.Ct. 1186). ‘‘Indeed, a civilstatute is unconstitutionally vague only if itis so indefinite as ‘really to be no rule orstandard at all.’ ’’ Id. (quoting SeniorsCivil Liberties Ass’n, Inc. v. Kemp, 965F.2d 1030, 1036 (11th Cir.1992)).

[4] Here, the Bar Rules at issue arecivil, rather than criminal in nature, andconcern economic activity, suggesting that,pursuant to the above guidelines, the high-est standard of clarity is not required.However, the Rules regulate lawyer adver-tising which is ‘‘a constitutionally protectedform of commercial speech.’’ See Mason,208 F.3d at 955. Commercial speech isexpression that is ‘‘inextricably related tothe economic interests of the speaker andaudience,’’ and is ‘‘undeniably entitled tosubstantial protection under the First andFourteenth Amendments of the UnitedStates Constitution.’’ Id. Nevertheless,such speech holds a ‘‘subordinate positionin the scale of First Amendment values,’’see Ohralik v. Ohio State Bar Ass’n, 436U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d


444 (1978).8 Thus, although the challengedBar Rules do affect the exercise of consti-tutionally protected rights, given the sub-ordinate position of commercial speech un-der the First Amendment, the Court willrequire Harrell to demonstrate a greaterlevel of vagueness than would be requiredwhere core First Amendment speech is atissue. See Capoccia v. Comm. on Prof’lStandards, No. 89–cv–866, 1990 WL211189, at *9 (N.D.N.Y. Dec. 20, 1990)(‘‘[T]he legal principles TTT generally appli-cable to vagueness challenges[ ] are equal-ly applicable here where there is presenteda challenge to the clarity and specificity ofrules governing a form of commercialspeech; all the more is this so, given thatthe Supreme Court has held that the over-breadth doctrine TTT has no pertinence inthe commercial speech context, and nocriminal penalty is involved.’’ (internal cita-tions omitted)); see also First VagabondsChurch of God v. City of Orlando, Fla.,610 F.3d 1274, 1289 n. 15 (11th Cir.2010)(‘‘This case does not directly involve the

same sort of core First Amendment con-cerns; so we should not conduct the samesort of searching facial review [as imple-mented in Konikov].’’) vacated by 616 F.3d1229, and reinstated in pertinent part by638 F.3d 756, 763 (11th Cir.2011). Accord-ingly, to sustain a facial challenge, Harrell‘‘must prove the enactment is vague ‘not inthe sense that it requires a person toconform his conduct to an imprecise butcomprehensible normative standard, butrather in the sense that no standard ofconduct is specified at all.’ ’’ See HoffmanEstates, 455 U.S. at 495 n. 7, 102 S.Ct.1186 (internal citation omitted) (quotingSmith v. Goguen, 415 U.S. 566, 578, 94S.Ct. 1242, 39 L.Ed.2d 605 (1974)); seealso Capoccia, 1990 WL 211189, at *10.As such, Harrell must show that the chal-lenged provisions simply have ‘‘no core.’’Hoffman Estates, 455 U.S. at 495 n. 7, 102S.Ct. 1186 (internal quotation omitted);see also Harrell II, 608 F.3d at 1253, 1264n. 8.9

[5] When reviewing an enactment forvagueness, courts must remember that

8. Because of this subordinate position, ‘‘theSupreme Court has held the overbreadth doc-trine inappropriate in commercial speechcases.’’ See Jacobs v. Fla. Bar, 50 F.3d 901,907 (11th Cir.1995)(internal footnotes omit-ted). However, ‘‘the Court has not limitedthe reach of the vagueness doctrine in thesame way.’’ See id. at 907 (internal footnotesomitted). Indeed, in Posadas de Puerto RicoAssoc. v. Tourism Co. of Puerto Rico, 478 U.S.328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986),the Supreme Court considered a facial vague-ness challenge to an advertising restriction onpure commercial speech. See Posadas, 478U.S. at 331, 340, 347–48, 106 S.Ct. 2968.

9. While the Court finds that the above stan-dard is appropriate here, the Court notes thatthe law pertaining to facial vagueness chal-lenges is not entirely clear. See Horton v. Cityof St. Augustine, Fla., 272 F.3d 1318, 1330(11th Cir.2001); see also United States v. Al–Arian, 329 F.Supp.2d 1294, 1301 (M.D.Fla.2004). In addition, the fact that the Rules inthis case implicate commercial speech, rather

than core First Amendment concerns, furthercomplicates the analysis. However, the Courtfinds added support for applying the afore-mentioned standard in that, upon careful re-view, the Eleventh Circuit’s decision in Har-rell II appears to suggest that the ‘‘no core’’standard set forth in Hoffman Estates appliesin this case. See Harrell II, 608 F.3d at 1253,1260 n. 7. To the extent Harrell must estab-lish that ‘‘ ‘no set of circumstances exists un-der which the [Rule] would be valid,’ ’’ asrequired by the hotly debated Salerno rule, seeHorton, 272 F.3d at 1329, 1330 (quoting Unit-ed States v. Salerno, 481 U.S. 739, 745, 107S.Ct. 2095, 95 L.Ed.2d 697 (1987)), the Courtobserves that a rule which has ‘‘no core’’ isunconstitutional in all its applications. SeeCity of Chicago v. Morales, 527 U.S. 41, 71,119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)(‘‘[I]fevery application of the ordinance representsan exercise of unlimited discretion, then theordinance is invalid in all its applica-tions.’’)(Breyer, J., concurring in part andconcurring in the judgment).


‘‘[l]anguage has limits and precision israrely possible.’’ See First Vagabonds,610 F.3d at 1286. Indeed, as drafters are‘‘ ‘[c]ondemned to the use of words, we cannever expect mathematical certainty fromour language.’ ’’ Id. (quoting Grayned,408 U.S. at 110, 92 S.Ct. 2294). ‘‘Where astatute does not define a term, a courtmust also give words their common andordinary meaning, absent some establishedtechnical definition, unless the legislatureintended otherwise.’’ See High Ol’ Times,Inc. v. Busbee, 673 F.2d 1225, 1229 (11thCir.1982). The Court must also ‘‘bear inmind that ‘[t]he applicable standard TTT isTTT the practical criterion of fair notice tothose to whom the statute is directed.The particular context is all important.’ ’’Internat’l Soc. For Krishna Consciousnessof Atlanta v. Eaves, 601 F.2d 809, 831 (5thCir.1979); 10 see also Mason, 208 F.3d at959 (‘‘ ‘The root of the vagueness doctrineis a rough idea of fairness.’ ’’ (quoting Ar-nett v. Kennedy, 416 U.S. 134, 159, 94S.Ct. 1633, 40 L.Ed.2d 15 (1974))). Thus,‘‘slightly more imprecision’’ is tolerated incircumstances where a less formalized cus-tom and usage will likely develop (i.e.,patterns of enforcement or tacit under-standings) and clarify much of the ‘‘inevit-able imprecision.’’ Id. at 831. Additional-ly, ‘‘the availability of advisory opinions togauge the application of [a particular rule]to specific situations bolsters its validity.’’See Mason 208 F.3d at 959 n. 4 (citingArnett v. Kennedy, 416 U.S. 134, 160, 94S.Ct. 1633, 40 L.Ed.2d 15 (1974)).

C. Discussion

1. ‘‘Quality of Legal Services’’and ‘‘Promises Results’’

[6] Rule 4–7.2(c)(2) prohibits ‘‘state-ments describing or characterizing the

quality of the lawyer’s services.’’ TheFlorida Supreme Court has broadly inter-preted this Rule to apply, not only to thequality of the services the lawyer provides,but also to the qualities (i.e., traits orcharacteristics) of the lawyer himself. SeeFla. Bar v. Pape, 918 So.2d 240, 244 (Fla.2005). In Mason, the Eleventh Circuitconsidered the language of a similar Rule,former Rule 4–7.2(j), which prohibited‘‘statements made by lawyers in advertise-ments or written communications that are‘self laudatory’ or that describe or charac-terize the quality of legal services.’’ Ma-son, 208 F.3d at 954. The court rejectedMason’s argument that Rule 4–7.2(j) wasinfirm ‘‘because it [was] subject to arbi-trary decision making,’’ and held that thelanguage of the rule was ‘‘plain and wouldadequately put Bar members on noticethat merely self-referential and laudatorystatements or statements describing thequality of their legal services are prohibit-ed.’’ Mason, 208 F.3d at 959. Althoughthe issues considered in the Mason caseare substantially similar to the instantchallenge to Rule 4–7.2(c)(2), Mason’sholding is not dispositive of this matter, asthe Bar suggests. Here, the Court hasbefore it prior applications of this Rulewhich Harrell contends demonstrate theRule’s arbitrary enforcement and lack ofstandards. See Plaintiffs’ Notice Identify-ing Inconsistent Applications of Advertis-ing Rules (Doc. No. 75; Notice). Whereasthe court in Mason determined that theterm ‘‘quality of services’’ provided ade-quate notice of what is prohibited, see Ma-son, 208 F.3d at 959, the argument here isfounded on a lack of enforcement stan-dards—an alternative basis for finding aRule unconstitutionally vague. See Koni-

10. In Bonner v. City of Prichard, 661 F.2d1206, 1209 (11th Cir.1981)(en banc), theEleventh Circuit adopted as binding prece-

dent all the decisions of the former FifthCircuit handed down prior to the close ofbusiness on September 30, 1981.


kov, 410 F.3d at 1329 (‘‘[A] claimant as-serting that a statute is void for vagueness[must] prove either that the statute fails togive fair notice of wrongdoing or that thestatute lacks enforcement standards suchthat it might lead to arbitrary or discrimi-natory enforcement.’’ (emphasis added)).

Similarly, in the challenge to Bar Rule4–7.2(c)(1)(G) prohibiting communicationswhich ‘‘promise results,’’ Harrell does notassert merely that the text of the Rule isimpermissibly vague. Instead, Harrellcontends that the Rule is unconstitutional-ly vague because it lacks enforcementstandards resulting in the Bar’s broad in-terpretation and arbitrary enforcement ofthe Rule. See id. In support of thesearguments, Harrell offers examples ofwhat he contends are inexplicably inconsis-

tent applications of those Rules.11 SeeHarrell Motion at 9–10; see generally No-tice. In response, the Bar attempts toexplain why the decisions cited by Harrellare not inconsistent.12 See Third TarbertAff. ¶¶ 9–12.

Upon review of the record in this case,the Court finds that Harrell has not dem-onstrated that the ‘‘quality of services’’ and‘‘promises results’’ Rules delegate so muchauthority to those charged with enforcingthem that there is a risk of arbitrary ordiscriminatory enforcement. Although therecord reveals that the Bar has broadlyinterpreted these Rules to prohibit state-ments that merely imply that a lawyerpossesses a particular quality or will pro-vide a certain benefit, a broad applicationof the Rules does not necessarily render

11. As to the ‘‘promises results’’ Rule, Harrellcontrasts the following advertising decisions:

‘‘People make mistakes, I help fix them’’violates the Rule whereas ‘‘People makemistakes, I help them’’ does not. See Har-rell Decl., Ex. 12 at 2.‘‘We’ll help you get a positive perspectiveon your case and get your defense off on theright foot quickly’’ violates the Rule but ‘‘Ifan accident has put your dreams on holdwe are here to help you get back on track’’does not. See Harrell Decl., Ex. 12 at 25,29.‘‘Remember, your lawyer’s knowledge ofthe law and talents in the courtroom canmean the difference between a criminalconviction and your freedom’’ violates theRule whereas ‘‘The lawyer you choose canhelp make the difference between a sub-stantial award and a meager settlement’’does not. See Harrell Decl., Ex. 12 at 71;id., Ex. 23 at 9–10.

With respect to the ‘‘quality of services’’ Rule,Harrell offers the following examples:

‘‘Make the right choice!’’ and ‘‘When whoyou choose matters most’’ violate the Rule,but ‘‘Choosing the right person to guide youthrough the criminal justice system may beyour most important decision. Choosewisely.’’ does not. See Harrell Decl., Ex. 12at 14; Ex. 14 at 3; Ex. 15 at 3.

‘‘You need someone who you can turn to,for trust and compassion with this delicatematter’’ violates the Rule, but ‘‘Caring Rep-resentation in Family Law Matters. I wantto help you through this difficult time.’’does not. See Harrell Decl., Ex. 8 at 56;Ex. 12 at 51.

In addition, the Notice contains a list of ad-vertising decisions by the Florida Bar whichHarrell believes demonstrate inconsistent ap-plications of these Rules. See generally No-tice.

12. On August 11, 2011, the Bar filed a Re-quest for Leave to Respond to Plaintiffs’ No-tice of Identifying Inconsistent Applications ofAdvertising Rules (Doc. No. 76; Request forLeave). In the Request for Leave, the Barseeks permission to file a response to theNotice providing ‘‘additional informationand/or explanation necessary to understandthe distinction between the permissible andimpermissible ads, such as the context of theadvertisement and pertinent portions of theadvisory opinion’’ as well as ‘‘subsequent ac-tions taken by the Standing Committee onAdvertising.’’ See Request for Leave at 1.Upon review, the Court determines that aresponse to the Notice is not necessary andwill deny the Request for Leave.


them unconstitutionally vague. See Ma-son, 208 F.3d at 959 (finding that althougha rule was ‘‘capable of multiple meanings’’and ‘‘potentially very broad application,’’the rule’s language was plain and wouldadequately put lawyers on notice of whatwas prohibited). In the past, the SupremeCourt has struck down statutes wherecriminal culpability was tied to terms suchas ‘‘ ‘annoying’ or ‘indecent’—wholly sub-jective judgments without statutory defini-tions, narrowing context, or settled legalmeanings.’’ See Holder v. HumanitarianLaw Project, ––– U.S. ––––, 130 S.Ct. 2705,2720, 177 L.Ed.2d 355 (2010) (internal quo-tations omitted). In contrast, the terms‘‘promises results’’ and ‘‘quality of the law-yer’s services,’’ when viewed in the contextof lawyer advertising, do ‘‘not require simi-larly untethered, subjective requirements.’’See id. Rather, these terms have a coremeaning such that they provide a ‘‘suffi-ciently clear and definite standard’’ tothose charged with enforcing them, seeFirst Vagabonds, 610 F.3d at 1287, and ‘‘areasonable opportunity to know what isprohibited’’ to those lawyers of ‘‘ordinaryintelligence’’ seeking to follow them, seeLeib, 558 F.3d at 1311; Mason, 208 F.3dat 959.

Moreover, to the extent the examplesoffered by Harrell reveal some inconsis-tency in the application of the Rules, thefact that different reviewers have occasion-ally had different interpretations does notrender the Rules unconstitutionally vague.

See First Vagabonds, 610 F.3d at 1288.The record of advertising decisions reflectsthat lawyers have attempted to craft ad-vertisements which imply the positive at-tributes and results that they are prohibit-ed from stating outright. As a result, theBar’s application of the Rules to thesecarefully worded advertisements often ap-pears to turn on fine, and at times almostimperceptible, distinctions. However, theexistence of these more nuanced distinc-tions does not render the Rules so subjec-tive as to lack any enforcement standardsat all. Indeed, difficulty applying theRules ‘‘on the margins does not nearlyestablish that the [Rule] delegates to the[reviewers] ‘a virtually unrestrained pow-er’ ’’ to find that an advertisement violatesthe Rule. Id. at 1287. Thus, while compli-ance with the advertising rules may bechallenging, that ‘‘does not render thoseprovisions unconstitutionally vague.’’ Ca-poccia, 1990 WL 211189, at *9. Regardless,between 1994 and 2008, the Bar’s EthicsDepartment issued 52,741 advisory opin-ions on lawyer advertisements, see SecondTarbert Aff. ¶ 6, and yet, Harrell has pro-vided the Court with only a handful ofexamples of arguably inconsistent or con-flicting decisions. See generally Notice.As such, it appears that in most cases aRule’s application to a particular advertise-ment is plain.13 Additionally, the constitu-tionality of these Rules is bolstered by theavailability of advisory opinions to assistmembers of the Bar where the marginal

13. The Court notes that only three percent ofthose advisory opinions were appealed to theBar’s Standing Committee on Advertising.See Second Tarbert Aff. ¶ 9. The StandingCommittee affirmed eighty-two percent ofthose appeals, and affirmed, in part, an addi-tional six percent. See id. Additionally, onlyone half of one percent of the opinions werethen appealed from the Standing Committee,fifty-five percent of which were affirmed by

the Board with another eight percent af-firmed in part. Id. ¶ 10. While the import ofthese statistics is of limited value withoutmore information, the record of appeals nev-ertheless suggests that the individuals inter-preting the Rules are usually in agreement asto the standards for enforcing the Rules andthe application of those Rules to particularadvertisements.


applications of the Rules may otherwise beunclear. See Mason, 208 F.3d at 959 n. 4.Because Harrell has failed to demonstratethat the ‘‘promises results’’ and ‘‘quality ofservices’’ Rules have ‘‘no core,’’ HoffmanEstates, 455 U.S. at 495 n. 7, 102 S.Ct.1186, the Court finds that Bar Rules 4–7.2(c)(2) and 4–7.2(c)(1)(G) are not uncon-stitutionally vague.14

2. Manipulative

[7, 8] Turning next to Rules 4–7.2(c)(3)and 4–7.5(b)(1)(A) which prohibit ‘‘manipu-lative’’ features in advertisements, theCourt determines that the term ‘‘manipu-lative’’ is so vague that it fails to adequate-ly put members of the Bar on notice ofwhat types of advertisements are prohibit-ed.15 The Bar does not set forth anydefinition of ‘‘manipulative’’ in Rules 4–7.2(c)(3) and 4–7.5(b)(1)(A) and the Rulesdo not include any standard by which toassess whether an advertisement is imper-

missibly manipulative. In the context oflegal advertising, the term ‘‘manipulative’’could arguably apply to almost every ad-vertisement. As the Eleventh Circuit ex-plained in Harrell II, ‘‘almost every televi-sion advertisement employs visual imagesor depictions that are designed to influ-ence, and thereby ‘manipulate,’ the viewerinto following a particular course of action,in the most unexceptional sense.’’ HarrellII, 608 F.3d at 1255. Thus, in the absenceof any objective criteria or applicable stan-dards, the Bar has unbridled discretion indetermining which advertisements itwishes to prohibit as impermissibly ‘‘ma-nipulative.’’ Notably, in 2004, a majorityof the Florida Bar’s advertising task forcecommittee agreed that the rule was ‘‘incap-able of definition, too subjective, and toodifficult to enforce,’’ but a motion to deletereferences to the word in the Rules failedby one vote because the determinative vot-er ‘‘could not support the motion [to de-

14. The Court questions whether Harrell’squarrel with the ‘‘quality of services’’ and‘‘promises results’’ Rules is, not that they areenforced too arbitrarily, but more that theyare enforced too broadly. Notably, Harrell islimited to challenging these Rules on vague-ness grounds because, as lawyer advertising iscommercial speech, the overbreadth doctrinedoes not apply, see Hoffman Estates, 455 U.S.at 497, 102 S.Ct. 1186 (‘‘[T]he overbreadthdoctrine does not apply to commercialspeech.’’), and a challenge to these Rules onFirst Amendment grounds is not ripe for re-view. See Harrell II, 608 F.3d at 1262.Nonetheless, even if the Bar’s broad applica-tion of the Rules impermissibly restricts pro-tected commercial speech, an issue not beforethe Court, that consideration is not relevant tothis vagueness challenge. See Holder, 130S.Ct. at 2719; Capoccia, 1990 WL 211189, at*10.

15. Significantly, ‘‘[a] plaintiff who engages insome conduct that is clearly proscribed can-not complain of the vagueness of the law asapplied to the conduct of others.’’ See Hoff-man Estates, 455 U.S. at 495, 102 S.Ct. 1186.

As such, the Supreme Court instructs that acourt should ‘‘examine the complainant’s con-duct before analyzing other hypothetical ap-plications of the law.’’ Id. To that end, theCourt notes that in Harrell II, the EleventhCircuit found that ‘‘Harrell has made an ade-quate threshold showing of vagueness in theapplication of the [R]ules to his proposedadvertisements, so that he may credibly claimto have suffered an injury-in-fact in the formof self-censorship.’’ Harrell II, 608 F.3d at1256–57. Upon further review at this stage inthe proceedings, the Bar has presented, andthis Court can discern, no reason to departfrom the Eleventh Circuit’s threshold determi-nation. It remains entirely unclear whetherHarrell’s proposed advertisements, see id. at1250–52, would be prohibited as ‘‘manipu-lative’’ or barred for lack of ‘‘useful’’ informa-tion. While it appears that those Rules maypotentially apply to prohibit his ‘‘family-themed’’ and ‘‘choices-themed’’ advertise-ments, the advertisements are far from‘‘clearly proscribed’’ under the Rules. SeeHarrell II, 608 F.3d at 1262–64.


lete] in the absence of a viable alternative.’’See Harrell Decl., Ex. 10 at A–56. On thisrecord, the Court finds that the Rulesprohibiting ‘‘manipulative’’ features fail toprovide adequate notice of what is prohib-ited and are susceptible to arbitrary en-forcement. See United Food & Commer-cial Workers Union v. Sw. Ohio Reg’lTransit Auth., 163 F.3d 341, 359 (6thCir.1998)(finding the term ‘‘aestheticallypleasing’’ impermissibly vague because itis not susceptible to objective definitionand therefore poses the danger of arbi-trary and discriminatory application).

Moreover, the Bar’s argument that theuse of the term ‘‘manipulative’’ in varioussecurities statutes demonstrates its claritydoes not persuade the Court otherwise.The word ‘‘manipulative’’ is ‘‘virtually aterm of art when used in connection withthe securities markets. It connotes inten-tional or willful conduct designed to de-ceive or defraud investors by controlling orartificially affecting the price of securi-ties.’’ See Schreiber v. Burlington N.,Inc., 472 U.S. 1, 6, 105 S.Ct. 2458, 86L.Ed.2d 1 (1985) (internal quotations omit-ted). In that context, the Supreme Courthas interpreted the term ‘‘manipulative’’ torequire misrepresentation. Id. at 7–8, 105S.Ct. 2458. This definition, however, is notconsistent with the Bar’s application of theterm ‘‘manipulative’’ in the context of law-yer advertising in that the Bar prohibitsadvertisements as manipulative evenwhere there appears to be no actual mis-representation. See Third Tarbert Aff.¶ 8; Second Tarbert Aff. ¶¶ 11–13. Thus,securities statutes and cases do little toclarify the meaning of ‘‘manipulative’’ here,and the Bar’s reliance on securities law isunavailing.

In addition, unlike the ‘‘promises re-sults’’ and ‘‘quality of services’’ Rules, theavailability of advisory opinions does notameliorate the vagueness problem with‘‘manipulative.’’ Because the ‘‘manipu-lative’’ Rules lack any ‘‘core’’ meaning, theavailability of ‘‘necessarily arbitrary opin-ions,’’ see Harrell II, 608 F.3d at 1264 n. 8,does not render the Rules any less vagueor restrain the Bar’s discretion in applyingthem. Indeed, the Bar’s enforcement ofthese Rules demonstrates their arbitraryapplication. Although the Bar attempts toexplain the inconsistent applications, itsexplanations do not reveal any particularstandard or definition that applies, but in-stead amount to case-by-case rationaliza-tions without any connection to the lan-guage of the Rules. See Bar Motion at11–12. Finally, the Court notes that ‘‘[a]l-though due process does not require ‘im-possible standards’ of clarity, this is not acase where further precision in the TTT

language is either impossible or impracti-cal.’’ See Kolender v. Lawson, 461 U.S.352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903(1983) (internal citation omitted) (quotingUnited States v. Petrillo, 332 U.S. 1, 7–8,67 S.Ct. 1538, 91 L.Ed. 1877 (1947)).16

Thus, because the Rules as presently writ-ten specify ‘‘no standard of conduct’’ at all,Hoffman Estates, 455 U.S. at 495 n. 7, 102S.Ct. 1186 (internal quotations omitted),the Court finds that Rules 4–7.2(c)(3) and4–7.5(b)(1)(A) are void for vagueness.

3. Useful, Factual Information

[9] Similarly, the comment to Rule 4–7.1 which states that advertisementsshould provide only ‘‘useful, factual infor-mation’’ is also impermissibly vague. The

16. Indeed, without considering whether theRevised Rules pass constitutional muster, theCourt observes that the Revised Rules filed bythe Bar demonstrate that a more precise de-

scription of the advertising techniques whichthe Bar considers impermissibly manipulativeis possible. See Revised Rules at 57–58.


term ‘‘useful’’ has no objective definitionand the Bar does not set forth any explicitstandards as to how it will determine whatis or is not ‘‘useful’’ in the context of legaladvertising. As such, the term is ‘‘far toosubjective in its application to pass consti-tutional muster.’’ See Big Mama Rag,Inc. v. United States, 631 F.2d 1030, 1035–36 (D.C.Cir.1980)(noting with approval thedistrict court’s rejection of a provisionwhich measured an organization by wheth-er it provides ‘‘instruction of the public onsubjects useful to the individual and bene-ficial to the community’’ because such astandard was ‘‘far too subjective in itsapplication to pass constitutional muster’’).Because lawyers of common intelligencecould easily differ on what constitutes‘‘useful’’ information in an attorney adver-tisement, this provision fails to provide anynotice, much less ‘‘fair notice’’ of what isprohibited to the members of the FloridaBar. See Eaves, 601 F.2d at 830–31. Thus,the Court will grant the Harrell Motion tothe extent Harrell requests that the Courtenjoin enforcement of this provision aswell.17

V. As–Applied First Amendment Chal-lenges

A. Summary of the Arguments

Next, Harrell asserts a First Amend-ment challenge to Rules 4–7.2(c)(2) and 4–7.5(b)(1)(C). See Harrell Motion at 13.Harrell contends that the prohibition on allbackground sounds except instrumentalmusic violates the First Amendment byimpermissibly restricting commercialspeech. In addition, Harrell asserts thatthe application of Rule 4–7.2(c)(2) whichprohibits statements describing the qualityof a lawyer’s legal services to the phrase‘‘Don’t settle for less than you deserve’’violates the First Amendment. Harrellargues that the Bar does not have a sub-stantial interest in ensuring that attorneyadvertisements contain only helpful, rele-vant information, id. at 15–16, nor a sub-stantial interest in protecting the dignityof the legal profession. See id. at 21–23.However, even if the Bar does have suchsubstantial interests, Harrell maintainsthat the Bar has failed to present any

17. At the Hearing, the Bar argued that theCourt should not enjoin enforcement of the‘‘useful, factual information’’ provision be-cause the Bar never intended to enforce thecomment as an independent restriction. TheBar does not raise this argument in its briefs,and has not provided the Court with anyauthority to support this argument. Signifi-cantly, at this, the summary judgment stage ofthese proceedings, the Bar fails to present theCourt with any evidence that the ‘‘useful, fac-tual’’ provision is not enforced by the Bar. Incontrast, Harrell submits the Harrell Declara-tion in which Harrell avers that he wishes todevelop and run advertisements with featuresthat he fears would violate the ‘‘useful, factualinformation’’ provision of the Rules, and thatthis provision has deterred him from develop-ing those advertisements. See Harrell Decl.¶¶ 21–22, 28. Indeed, in Harrell II, the Elev-enth Circuit considered the language in thecomment to Rule 4–7.1 and held that ‘‘Harrellcan credibly claim to be confused in deter-mining whether his [proposed advertisement]

satisfies this highly subjective requirement.’’Harrell II, 608 F.3d at 1255. Moreover, inPape, the Florida Supreme Court determinedthat an attorney’s advertisement failed to‘‘comport with the general criteria for permis-sible attorney advertisements set forth in thecomments to section 4–7 of the Rules of Pro-fessional Conduct,’’ and specifically refer-enced the ‘‘useful, factual information’’ lan-guage set forth in the comment to Rule 4–7.1.See Pape, 918 So.2d at 243. While the PapeCourt found that the subject advertisementviolated other, more specific Rules as well,the court’s reference to this language suggeststhat lawyers are expected to adhere to thisstandard. As such, the Court finds no meritto the Bar’s last-minute assertion that an in-junction against enforcement of this provisionis unnecessary or inappropriate simply be-cause it is set forth in a comment and notRule 4–7.1 itself.


evidence that the challenged Rules areeffective in promoting those interests. Id.at 17–20, 24. Finally, Harrell asserts that,to the extent the Bar can establish that theRules are effective in advancing the aboveinterests, the Court should still find theRules unconstitutional because the Rulesare not narrowly tailored to serve thoseinterests. Id. at 20–21, 25.

In the Bar Motion, the Bar contendsthat although the Board has found ‘‘Don’tsettle for less than you deserve’’ not toviolate Rule 4–7.2(c)(2), the Bar’s priorrejection of the phrase was within theconstitutional parameters for the regula-tion of lawyer advertising. See Bar Mo-tion at 14. The Bar maintains that theFirst Amendment protects lawyer adver-tising only ‘‘to the extent that it providesaccurate factual information that can beobjectively verifiable [sic].’’ Id. As such,the Bar appears to argue that because‘‘Don’t settle for less than you deserve’’ isnot a factual statement that can be objec-tively verified, the Bar may reject thephrase without infringing on the FirstAmendment. See Bar Reply at 8.

[10] In addition, the Bar asserts thatRule 4–7.5(b)(1)(C), which prohibits all

background sounds except instrumentalmusic in television and radio advertising,must be read ‘‘in pari materia ’’ with Rule4–7.2(c)(16) which applies to all advertise-ments and prohibits only sounds that are‘‘deceptive, misleading, manipulative, orTTT likely to confuse the listener.’’ SeeBar Motion at 16. The Bar contends that,to the extent the First Amendment ap-plies, the Bar has a substantial interest in‘‘ensuring that the public has access toinformation that is not misleading to assistthe public in the comparison and selectionof attorneys,’’ and in ‘‘preventing the ero-sion of the public’s confidence and trust inthe judicial system and curbing activitiesthat negatively affect the administration ofjustice.’’ Id. at 17–18. The Bar arguesthat the advertising Rules promote thoseinterests and in support, the Bar generallyrefers the Court to a study conducted in1989 on the effect of lawyer advertising onpublic opinion. Id. at 19. In addition, theBar provides the Court with studies andsurveys collected by a Florida Bar taskforce in 1997 concerning lawyer advertis-ing.18 Id. at 19–20. The Bar maintainsthat the Rules in question are not moreextensive than necessary to advance theBar’s substantial interests because ‘‘theypropose to ensure the truthful dissemina-

18. Although the Bar filed voluminous docu-ments, including lengthy studies on lawyeradvertising, in support of the Bar Motion, itfailed to provide the Court with specific cita-tions to the particular portions of those docu-ments and studies it contends support theBar’s position. Rule 56 provides that a partymust support all assertions made in supportor in opposition to a motion for summaryjudgment by ‘‘citing to particular parts ofmaterials in the recordTTTT’’ See Rule56(c)(1)(A). Moreover, while the Court mayconsider other evidence, ‘‘[t]he court needconsider only the cited materialsTTTT’’ Rule56(c)(3). While the Court recognizes that theamendments to Rule 56 adding this languagebecame effective only days before the Barfiled the Bar Motion, these amendments

merely reflect obligations that already existedunder the law. See Lawrence v. Wal–MartStores, Inc., 236 F.Supp.2d 1314, 1322(M.D.Fla.2002)(‘‘It is the obligation of thenon-moving party, however, not the Court, toscour the record in search of the evidencethat would defeat a motion for summary judg-mentTTTT’’). Thus, the Court need not scourun-cited portions of the summary judgmentrecord, including the lengthy studies on law-yer advertising, searching for evidence thatmight bolster either side’s argument. Never-theless, the Court has reviewed these filingsand, as explained below, finds no support forthe Bar’s position.


tion of information by regulating, not pro-hibiting, legal advertising.’’ Id. at 21 (in-ternal quotation omitted).

B. Applicable Law

[11] In First Amendment challenges torestrictions on commercial speech, the Su-preme Court instructs that a four-partanalysis applies. See Central Hudson Gas& Elec. Corp. v. Pub. Serv. Comm’n ofN.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65L.Ed.2d 341 (1980). First, the Court mustdetermine whether the expression is pro-tected by the First Amendment. Id. ‘‘Forcommercial speech to come within thatprovision, it at least must concern lawfulactivity and not be misleading.’’ Id. Next,the Court should consider ‘‘whether theasserted governmental interest is substan-tial.’’ Id. If so, then the Court must de-termine whether the regulation ‘‘directlyadvances the governmental interest as-serted,’’ and finally, ‘‘whether it is notmore extensive than is necessary to servethat interest.’’ Id. This analysis is knownas the Central Hudson test. See Mason,208 F.3d at 955–56. Significantly,‘‘[w]here, as here, a plaintiff mounts an as-applied challenge to an alleged burden oncommercial speech, ‘[i]t is well establishedthat the party seeking to uphold the re-striction on commercial speech carries theburden of justifying it.’ ’’ See Jacobs v.Fla. Bar, 50 F.3d 901, 906 (11thCir.1995)(quoting Edenfield v. Fane, 507U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d543 (1993)); Mason, 208 F.3d at 958 (‘‘Theparty seeking to uphold a restriction oncommercial speech carries the burden ofjustifying it.’’ (internal quotations omit-ted)).

C. Discussion

1. Unlawful or Misleading?

[12, 13] ‘‘The First Amendment’s con-cern for commercial speech is based on the

informational function of advertising.’’Central Hudson, 447 U.S. at 563, 100 S.Ct.2343. Consequently, the Supreme Courtinstructs that:

[t]he States and the Federal Govern-ment are free to prevent the dissemina-tion of commercial speech that is false,deceptive, or misleading, or that propos-es an illegal transaction. Commercialspeech that is not false or deceptive anddoes not concern unlawful activities,however, may be restricted only in theservice of a substantial governmental in-terest, and only through means that di-rectly advance that interest.

Zauderer v. Office of Disciplinary Counselof the Sup.Ct. of Ohio, 471 U.S. 626, 638,105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); seealso Fla. Bar v. Went For It, Inc., 515 U.S.618, 623–24, 115 S.Ct. 2371, 132 L.Ed.2d541 (1995) (explaining that ‘‘the govern-ment may freely regulate commercialspeech that concerns unlawful activity or ismisleading. Commercial speech that fallsinto neither of those categories TTT may beregulated if the government satisfies’’ thethree remaining Central Hudson prongs).As such, the government ‘‘may not placean absolute prohibition on certain types ofpotentially misleading information TTT ifthe information also may be presented in away that is not deceptive.’’ See In reR.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71L.Ed.2d 64 (1982) (emphasis added). Inaddition, the Supreme Court has held thatillustrations and pictures are entitled tothe same First Amendment protections af-forded verbal commercial speech becausetheir use ‘‘serves important communicativefunctions’’ in that ‘‘it attracts the attentionof the audience to the advertiser’s mes-sage, and it may also serve to impartinformation directly.’’ See Zauderer, 471U.S. at 647, 105 S.Ct. 2265. Indeed, ‘‘even


a communication that does no more thanpropose a commercial transaction is enti-tled to the coverage of the First Amend-ment.’’ Edenfield, 507 U.S. at 767, 113S.Ct. 1792.

a. ‘‘Don’t settle for lessthan you deserve’’

[14] Turning to Harrell’s challenge re-lating to the slogan ‘‘Don’t settle for lessthan you deserve,’’ the Court first empha-sizes that this First Amendment challengeis ‘‘as-applied.’’ See Harrell II, 608 F.3dat 1259, 1271. Thus, despite the broadscope of Harrell and the Bar’s arguments,the issue before the Court is not whetherthe Bar may prohibit all quality of servicestatements, but rather, whether the Barmay prohibit Harrell from using the slogan‘‘Don’t settle for less than you deserve’’

based on a rule that prohibits statementsdescribing the quality of a lawyer’s ser-vices.19 See Holder, 130 S.Ct. at 2724;Zauderer, 471 U.S. at 647, 105 S.Ct. 2265(‘‘[T]he burden is on the State to present asubstantial governmental interest justify-ing the restriction as applied to [the attor-ney] and to demonstrate that the restric-tion vindicates that interest through theleast restrictive available means.’’ (empha-sis added)); In re R.M.J., 455 U.S. at 205–06, 102 S.Ct. 929; Mason, 208 F.3d at 956–58. Notably, in the instant case, the par-ties agree that ‘‘Don’t settle for less thanyou deserve’’ is not a statement character-izing the quality of a lawyer’s services.20

Thus, the Court need not determine at thistime whether a broad prophylactic ban onall quality of service statements is in keep-ing with the First Amendment. See Zau-derer, 471 U.S. at 640 n. 9, 105 S.Ct. 2265

19. In early September 2007, Harrell submit-ted an advertising campaign, which includedthe phrase, ‘‘Don’t settle for less than youdeserve,’’ to the Bar for review. See HarrellDecl. ¶ 11 & Ex. 2. On September 21, 2007,the staff attorney assigned to review Harrell’sadvertisements advised him that the adver-tisements did not comply with the advertisingrules because the phrase, ‘‘Don’t settle for lessthan you deserve,’’ ‘‘describes or characteriz-es the quality of the services being offered inviolation of Rule 4–7.2(c)(2).’’ Id. ¶ 12 & Ex.2. The staff attorney also noted one additionalviolation, a failure to identify the location ofHarrell’s bona fide office, id., Ex. 2 at 2,which was later remedied, see id., Ex. 3 at 1–2. Thus, the only remaining violation in theadvertising campaign was the use of thephrase, ‘‘Don’t settle for less than you de-serve,’’ in contravention of Rule 4–7.2(c)(2).See id., Ex. 3 at 1–2. After finding that theadvertisements did not comply with the Rules,the staff attorney cautioned that ‘‘[u]se of theadvertisements may result in disciplinary ac-tion’’ and recommended that Harrell revisethe advertisements. Id., Ex. 2 at 2.

In response to this decision, on September26, 2007, Harrell asked the staff attorney toreconsider her decision. Id. ¶ 13. Upon re-ceipt of this letter, the staff attorney construed

Harrell’s request as one seeking review of thedecision by the Bar’s Standing Committee onAdvertising (SCA). See id., Ex. 3. Conse-quently, the request was treated as an appeal.See id. On October 10, 2007, Harrell formal-ly appealed the staff attorney’s determinationto the SCA. See id. ¶ 14, Ex. 4. The SCAaffirmed the staff decision on November 26,2007, finding that the phrase violated Rule 4–7.2(c)(2) by characterizing the quality of legalservices offered. See id. ¶ 15 & Ex. 6. Indoing so, the SCA also cautioned Harrell that‘‘[u]se of the advertisements may result indisciplinary action’’ and recommended thatHarrell revise the advertisements. See id.,Ex. 6. Thus, the as applied challenge beforethe Court is the Bar’s rejection of the slogan‘‘Don’t settle for less than you deserve’’ basedupon the application of Rule 4–7.2(c)(2).

20. Although the Bar’s position on the natureof ‘‘Don’t settle for less than you deserve’’ wasunclear from its briefs, counsel for the Barclarified its position at the Motion Hearingand conceded that the slogan is not a state-ment of quality, but rather, in the Bar’s opin-ion, a general statement of what a consumershould be looking for in a law firm or attor-ney.


(‘‘[O]ur decisions have left open the possi-bility that States may prevent attorneysfrom making nonverifiable claims regard-ing the quality of their servicesTTTT’’);Bates v. State Bar of Ariz., 433 U.S. 350,383–84, 97 S.Ct. 2691, 53 L.Ed.2d 810(1977) (‘‘[A]dvertising claims as to thequality of services a matter we do notaddress today are not susceptible of meas-urement or verification; accordingly, suchclaims may be so likely to be misleading asto warrant restriction.’’); In re R.M.J., 455U.S. at 201, 102 S.Ct. 929.

In the instant matter, the Bar has notpresented any evidence that ‘‘Don’t settlefor less than you deserve’’ actually misledor deceived anyone. See Peel v. AttorneyRegistration & Disciplinary Comm’n ofIll., 496 U.S. 91, 106, 110 S.Ct. 2281, 110L.Ed.2d 83 (1990) (‘‘Given the completeabsence of any evidence of deception in thepresent case, we must reject the conten-tion that petitioner’s letterhead is actuallymisleading.’’). Indeed, at the Hearing, theBar conceded that ‘‘Don’t settle for lessthan you deserve’’ was neither actually norinherently misleading. Thus, because‘‘Don’t settle for less than you deserve’’ iscommercial speech which does not proposean unlawful transaction, and is not false,

deceptive or misleading, to sustain its re-striction of the slogan, the Bar must satis-fy the remaining three prongs of the Cen-tral Hudson test.21 See Went For It, Inc.,515 U.S. at 623–24, 115 S.Ct. 2371.

b. Background Sounds

The Bar does not contend that back-ground sounds other than instrumentalmusic in television or radio advertisementsare actually or inherently misleading. In-stead, the Bar maintains that Rule 4–7.5(b)(1)(C) must be read ‘‘in pari mate-ria ’’ with Rule 4–7.2(c)(16) which providesthat ‘‘[a] lawyer shall not include in anyadvertisement or unsolicited written com-munication any sound that is deceptive,misleading, manipulative, or that is likelyto confuse the listener.’’ See Bar Motionat 16. Rule 4–7.2(c)(16) was approved bythe Florida Supreme Court in 2009, andbecame effective in February of 2010. Atthe May 11, 2010 meeting of the FloridaBar’s Standing Committee on Advertising,the committee voted to apply Rule 4–7.2(c)(16) to sounds in television and radioadvertising ‘‘and directed staff to draftamendments to Rule 4–7.5 to make it con-sistent with Rule 4–7.2(c)(16).’’ See ThirdTarbert Aff., Ex. A at 2. Thus, the Bar

21. To the extent the Bar argues in the BarMotion and Bar Reply that ‘‘Don’t settle forless than you deserve’’ is not protected underthe First Amendment because it does not pro-vide ‘‘accurate factual information that can beobjectively verifiable [sic],’’ see Bar Reply at8; Bar Motion at 14, the Bar abandoned thisargument at the Hearing and acknowledgedthat ‘‘Don’t settle for less than you deserve’’ isentitled to the First Amendment protectionsafforded commercial speech. Regardless, theCourt finds that the Bar’s prior position to thecontrary is without merit. See Went For It,Inc., 515 U.S. at 623–24, 115 S.Ct. 2371 (ex-plaining that ‘‘the government may freely reg-ulate commercial speech that concerns un-lawful activity or is misleading. Commercialspeech that falls into neither of those catego-ries TTT may be regulated if the government

satisfies’’ the three remaining Central Hudsonprongs); Edenfield, 507 U.S. at 767, 113 S.Ct.1792 (‘‘[E]ven a communication that does nomore than propose a commercial transactionis entitled to the coverage of the First Amend-ment.’’); see also Alexander v. Cahill, 598 F.3d79, 89 (2d Cir.2010) cert. denied ––– U.S. ––––,131 S.Ct. 820, 178 L.Ed.2d 576 (2010); BadFrog Brewery, Inc. v. N.Y. State Liquor Auth.,134 F.3d 87, 96–97 (2d Cir.1998) (‘‘Thoughthe label communicates no information be-yond the source of the product, we think thatminimal information, conveyed in the contextof a proposal of a commercial transaction,suffices to invoke the protections for commer-cial speech, articulated in Central Hudson.’’).


maintains that rather than the categoricalban set forth in Rule 4–7.5(b)(1)(C), theCourt should interpret the Rule as prohib-iting only background sounds that are ‘‘de-ceptive, misleading, manipulative, or likelyto confuse the listener.’’ See Bar Motionat 16.

However, the Bar’s proposed interpreta-tion of Rule 4–7.5(b)(1)(C) is not well tak-en. As with the Revised Rules discussedabove, see note 7, to the extent the Barintends to remove the categorical ban onbackground sounds from the Rules, it hasnot yet done so. While the Court recog-nizes that the categorical ban is not includ-ed in the proposed Revised Rules, see Re-vised Rules at 20, 57, those Rules remainsubject to the approval of the Florida Su-preme Court. Thus, at present, Rule 4–7.5(b)(1)(C) is still the governing Rule andis still enforceable against Harrell. TheBar has not presented the Court with anyrecord evidence that this Rule is no longerenforced according to its categorical terms,nor is there an opinion by the FloridaSupreme Court limiting the Rule in themanner suggested by the Bar. According-ly, the Bar is free to enforce the categori-cal Rule as written. Indeed, in the HarrellDeclaration, Harrell asserts that the Bar’srule prohibiting background sounds hasforced him to abandon various advertisingcampaigns that he otherwise would havedeveloped. See Harrell Decl. ¶¶ 21, 24.Because this Rule continues to chill Har-rell’s speech, the Court will reject theBar’s latest attempt to avoid review ofRule 4–7.5(b)(1)(C) on the merits. Seesupra at 2–3.

[15] Moreover, the Court declines tointerpret this rule in pari materia withRule 4–7.2(c)(16) in the manner asserted

by the Bar. ‘‘When the language of the[rule] is clear and unambiguous and con-veys a clear and definite meaning, there isno occasion for resorting to the rules ofstatutory interpretation and construction;the statute must be given its plain andobvious meaning.’’ See Blanton v. City ofPinellas Park, 887 So.2d 1224, 1230 (Fla.2004). Here, the meaning of Rule 4–7.5(b)(1)(C) is plain—the Rule categoricallybans all background sounds in televisionand radio advertisements except instru-mental music. Thus, the Court need notresort to the rules of statutory construc-tion in order to determine its meaning.Regardless, even considering this Rule inpari materia with Rule 4–7.2(c)(16), theCourt would not adopt the constructionasserted by the Bar. The Bar argues thatthe Court should interpret Rule 4–7.5(b)(1)(C) to have exactly the samemeaning as Rule 4–7.2(c)(16). See BarMotion at 16. However, this interpreta-tion would render Rule 4–7.5(b)(1)(C) en-tirely redundant and meaningless, a resultthat courts should avoid when interpretingenactments. See State v. Goode, 830 So.2d817, 824 (Fla.2002) (‘‘In addition to thestatute’s plain language, a basic rule ofstatutory construction provides that theLegislature does not intend to enact use-less provisions, and courts should avoidreadings that would render part of a stat-ute meaningless.’’). Rather, to harmonizethe Rules, and give effect to each, State v.Burkhart, 869 So.2d 1242, 1245 (Fla. 4thDist.Ct.App.2004), the Court interpretsRule 4–7.2(c)(16) to prohibit all deceptiveor misleading sounds, and Rule 4–7.2(b)(1)(C) to impose the additional re-striction in the context of television andradio advertising that all backgroundsounds except instrumental music are pro-


hibited as well.22 Accordingly, to the ex-tent the Bar asserts that Rule 4–7.5(b)(1)(C) does not contravene the FirstAmendment in that it only prohibits decep-tive or misleading sounds, this argument iswithout merit.

Given the broad scope of the parties’arguments, it bears repeating that Har-rell’s First Amendment challenge to Rule4–7.5(b)(1)(C) is also ‘‘as-applied.’’ SeeHarrell, 608 F.3d at 1262. Harrell seeksto develop and disseminate advertisementscontaining background noises caused byhis dogs, by gym equipment and by otheractivities in his law firm. See HarrellDecl. ¶ 28. Thus, Harrell’s as-appliedFirst Amendment challenge is to the cate-gorical prohibition of those sounds underRule 4–7.5(b)(1)(C). See Harrell II, 608F.3d at 1262. Because such backgroundsounds are, at worst, only potentially mis-leading, the Bar must satisfy the remain-der of the Central Hudson test in order tosustain the Rule as it would be applied inthis case.

2. Substantial State Interest?

‘‘Unlike rational basis review, the Cen-tral Hudson standard does not permit [theCourt] to supplant the precise interestsput forward by the State with other suppo-sitions.’’ Harrell II, 608 F.3d at 1269.The Bar asserts two substantial interestsin support of its advertising regulations.First, the Bar contends that it has aninterest in ‘‘ensuring that the public hasaccess to information that is not mislead-ing to assist the public in the comparisonand selection of attorneys.’’ See Bar Mo-

tion at 17. The Eleventh Circuit in Masonrecognized that ‘‘the state has both a gen-eral interest in protecting consumers, aswell as a special responsibility to regulatelawyers.’’ See Mason, 208 F.3d at 956. Assuch, the Mason Court found that the Barhas a substantial interest ‘‘in ensuring thatattorney advertisements are not mislead-ing’’ and ‘‘in ensuring that the public hasaccess to relevant information to assist inthe comparison and selection of attorneys.’’Id.

Second, the Bar asserts an interest in‘‘preventing the erosion of the public’s con-fidence and trust in the judicial system andcurbing activities that negatively affect theadministration of justice.’’ See Bar Motionat 17–18. With respect to this secondinterest, the Eleventh Circuit explained inHarrell II that:

the Bar has a ‘‘paramount TTT objectiveof curbing activities that negatively af-fec[t] the administration of justice.’’Specifically, the Bar has an interest inpreventing ‘‘reputational harm to theprofession,’’ and in ‘‘preserv[ing] [its] in-tegrity.’’ Thus, in Went For It, [515U.S. at 625, 115 S.Ct. at 2379,] the Su-preme Court recognized the Bar’s inter-est in maintaining a rule designed to‘‘protect the flagging reputations ofFlorida lawyers by preventing themfrom engaging in conduct that TTT isuniversally regarded as deplorable andbeneath common decency.’’ Beyondthese general interests of the Bar inregulating attorney advertising, the Su-preme Court has recognized that ‘‘thespecial problems of advertising on the

22. Notably, the Eleventh Circuit found Rule4–7.5(b)(1)(C) to be fit for First Amendmentreview specifically because its application was‘‘categorical and thus clear.’’ Harrell II, 608F.3d at 1262. If the Court were to interpretthis Rule in the manner suggested by the Bar,

the application of the Rule would be unclear,thus raising the same ‘‘serious fitness con-cerns’’ that led the Eleventh Circuit to holdthat the other eight rules Harrell originallychallenged were not ripe for review. See id.at 1262–65.


electronic broadcast media will warrantspecial consideration.’’

Harrell II, 608 F.3d at 1269–70 (internalcitations omitted) (omissions and firstthree alterations in original). Thus, pursu-ant to Mason and Harrell II, the Courtfinds that the Bar has demonstrated sub-stantial interests sufficient to satisfy thisprong of the Central Hudson test.

3. Advances the Asserted Interests?

[16] The third prong of Central Hud-son requires that ‘‘a regulation impingingupon commercial expression ‘directly ad-vance the state interest involved; the reg-ulation may not be sustained if it providesonly ineffective or remote support for thegovernment’s purpose.’ ’’ See Edenfield,507 U.S. at 770, 113 S.Ct. 1792. Indeed, ‘‘astate’s restrictions on speech [must] targetan identifiable harm and TTT [must] miti-gate against such harm in a direct andeffective manner.’’ Mason, 208 F.3d at956. Thus, the Bar must ‘‘demonstratethat the harms it recites are real and thatits restriction will in fact alleviate them toa material degree.’’ See Ibanez v. Fla.Dep’t of Bus. & Prof’l Regulation, 512 U.S.136, 146, 114 S.Ct. 2084, 129 L.Ed.2d 118(1994). Significantly, ‘‘mere speculation orconjecture’’ are not sufficient to satisfy thegovernment’s burden, see Edenfield, 507U.S. at 770–71, 113 S.Ct. 1792, and the Barcannot satisfy its burden merely ‘‘by roteinvocation of the words ‘potentially mis-leading.’ ’’ Id. Indeed, ‘‘[w]hile empiricaldata supporting the existence of an identi-fiable harm is not a sine qua non for afinding of constitutionality, the SupremeCourt has not accepted ‘common sense’alone to prove the existence of a concrete,nonspeculative harm.’’ Mason, 208 F.3dat 957–58 (collecting cases).

a. ‘‘Don’t settle for lessthan you deserve’’

Upon review of the record, the Courtfinds no evidence that prohibiting the use

of the phrase ‘‘Don’t settle for less thanyou deserve’’ advances the Bar’s assertedinterests in a material way. The Bar doesnot articulate any basis for believing that‘‘Don’t settle for less than you deserve’’could potentially mislead the public orerode the public’s confidence in the legalprofession. See Mason, 208 F.3d at 958(‘‘The Bar has the burden in this case ofproducing concrete evidence that Mason’suse of the words ‘AV Rated, the HighestRating’ threatened to mislead the public.’’).Moreover, the Bar presents no evidence,anecdotal or otherwise, that the phrase hasmisled the public or tarnished the reputa-tion of the legal profession in the public’seyes. Mason, 208 F.3d at 957. Instead,the Bar generally cites to data which pur-portedly shows that television advertising‘‘lowers the public’s respect for the fair-ness and integrity of the legal system andadversely affects the system.’’ See BarMotion at 21; see generally Doc. 25, Exs.5–8. However, even if the Court acceptsthe Bar’s characterization of this data, evi-dence that the public dislikes televisionadvertising generally does little to informthe Court as to any harms potentiallycaused by Harrell’s slogan specifically.See Zauderer, 471 U.S. at 643, 105 S.Ct.2265 (‘‘The State’s argument that it mayapply a prophylactic rule to punish appel-lant notwithstanding that his particular ad-vertisement has none of the vices thatallegedly justify the rule is in tension withour insistence that restrictions involvingcommercial speech that is not itself decep-tive be narrowly crafted to serve theState’s purpose.’’).

Most significantly, the Bar acknowl-edges that ‘‘Don’t settle for less than youdeserve’’ does not violate the rule prohibit-ing statements characterizing or describ-ing the quality of a lawyer’s statements.Indeed, the Bar now agrees that Harrell’s


use of this statement in his advertisingcampaign is entirely permissible under theBar Rules. Thus, the Court cannot dis-cern how applying Bar Rule 4–7.2(c)(2) ina manner that prohibits a slogan which theFlorida Bar finds unobjectionable couldpossibly serve the Florida Bar’s substan-tial interests ‘‘in a direct and effectivemanner.’’ Mason, 208 F.3d at 956. At thevery least, applying the Rule in this man-ner is ‘‘broader than reasonably necessaryto prevent’’ the cited harms. See In reR.M.J., 455 U.S. at 203, 102 S.Ct. 929(explaining that although ‘‘the potential fordeception and confusion is particularlystrong in the context of advertising profes-sional services, restrictions upon such ad-vertising may be no broader than reason-ably necessary to prevent the deception.’’).As such, the Court concludes that the ap-plication of Bar Rule 4–7.2(c)(2) to prohibit

use of the slogan ‘‘Don’t settle for less thanyou deserve’’ is an unconstitutional restric-tion of Harrell’s First Amendment rightsunder the circumstances of this case.23

Accordingly, the Harrell Motion is due tobe granted to the extent Harrell seekssummary judgment on his as-applied chal-lenge to the Bar’s rejection of ‘‘Don’t settlefor less than you deserve.’’ 24

b. Background Sounds

In support of the Bar’s proposition thatthe prohibition on background sounds ad-vances its substantial interests, the Barrelies on a study, published in 1989, on theeffects of lawyer advertising on publicopinion. See Bar Motion at 21; see alsoSummary of the Record (Doc. 25–6). TheBar generally refers the Court to the ‘‘ex-tremely voluminous’’ record, see Bar Mo-tion at 20, but identifies only one actual

23. The Court notes that the Bar again assert-ed at the Hearing its contention that Harrell’sas-applied challenge to ‘‘Don’t settle for lessthan you deserve’’ is moot. The Bar arguedthat the Bar’s submission of the Revised Rulesto the Florida Supreme Court conclusivelydemonstrates that the Bar will not change itsposition with respect to Harrell’s slogan. No-tably, the Bar did not raise this argument inits briefs. Regardless, the Court does not findthis matter to be moot. The Eleventh Circuitspecifically considered and rejected the Bar’sargument that Harrell’s challenge to the re-jection of ‘‘Don’t settle for less than you de-serve’’ was moot. See Harrell II, 608 F.3d at1265–68. The Harrell II Court determinedthat ‘‘the Bar has not borne its heavy burdenof showing that it is ‘absolutely clear that theallegedly wrongful behavior could not reason-ably be expected to recur.’ ’’ See id. at 1268(emphasis in original) (citing Ala. v. U.S.Army Corps of Eng’rs, 424 F.3d 1117, 1131(11th Cir.2005)). The Eleventh Circuit thenremanded the matter to this Court ‘‘for con-sideration of Harrell’s justiciable claims onthe merits.’’ Harrell II, 608 F.3d at 1271.

The Bar has not presented this Court withany new evidence to suggest that the facts ofthis case have changed such that the EleventhCircuit’s reasoning should no longer apply.

Moreover, the Court is not persuaded that thesubmission of the Revised Rules to the Flori-da Supreme Court makes it ‘‘absolutely clear’’that the Bar will not change its position withrespect to the slogan. As the Court previouslynoted, the Florida Supreme Court may notadopt the Revised Rules. See supra note 7.Moreover, despite counsel’s assertion thatHarrell’s as applied challenge is moot in lightof the Revised Rules, the Bar has offered noactual evidence as to how Harrell’s sloganwould be treated under those Rules, ifadopted. As such, the fact that the Bar is inthe process of revising the advertising rulesdoes not make it ‘‘absolutely clear’’ that thealleged misconduct will not reoccur, and assuch, the Eleventh Circuit’s determination re-mains binding on the Court.

24. Because the Court finds that the Bar hasfailed to demonstrate that the rejection ofHarrell’s slogan advances a substantial stateinterest, the Court need not consider thefourth prong of the Central Hudson test—whether the restriction ‘‘is not more extensivethan is necessary to serve that interest.’’ Cen-tral Hudson, 447 U.S. at 566, 100 S.Ct. 2343;Mason, 208 F.3d at 958.


study which references backgroundsounds, see id. at 21. Specifically, the Barcites a survey of 196 individuals where,after viewing six lawyer television adver-tisements, ‘‘67% of the respondents ap-proved of the rule banning dramatizations,testimonials, celebrity voices, backgroundsounds, and vocal music on broadcast ad-vertisements. These techniques were seenas deceptive.’’ See Summary of the Rec-ord (Doc. 25, Ex. 6) at 54. However, forthe reasons set forth below, the Courtfinds that this evidence deserves littleweight.

The rule approved by the survey respon-dents listed background sounds and vocalmusic alongside dramatizations, testimoni-als and celebrity voices. Id. As such, it isentirely unclear whether, when weighingthe ban, the respondents actually consid-ered background sounds independently ofthe other features listed. Indeed, one can-not discern from the descriptions of the sixsample commercials shown to the respon-dents whether those advertisements evencontained background sounds or vocal mu-sic. Id. at 51–52. Moreover, when thesame six commercials were presented totwo eleven-person focus groups, the nega-tive feedback on the commercials from thegroups did not include any reference to theuse of background sounds or vocal music.See id. at 50–53. Thus, the Court findsthat this survey evidence falls far short of

the type of ‘‘concrete evidence’’ necessaryto justify the Bar’s categorical restrictionon background sounds. See Mason, 208F.3d at 958. Significantly, the Bar cites tono other specific evidence in the record tosupport its contention that a prohibition onbackground sounds advances its assertedinterests, and the Court independently hasfound none. Accordingly, this Court ‘‘isunwilling to sustain restrictions on consti-tutionally protected speech based on a rec-ord so bare as the one relied upon by theBar here.’’ Id. In the absence of anyevidence that prohibiting the type of innoc-uous non-instrumental background soundsas those proposed by Harrell here willprotect the public from being misled orprevent the denigration of the legal profes-sion, the Bar has failed to satisfy the thirdprong of the Central Hudson test.25 SeeEdenfield, 507 U.S. at 770–71, 113 S.Ct.1792 (‘‘The burden is not satisfied by merespeculation or conjecture; rather, a gov-ernmental body seeking to sustain a re-striction on commercial speech must dem-onstrate that the harms it recites are realand that its restriction will in fact alleviatethem to a material degree.’’). Accordingly,the Harrell Motion is due to be granted onthis claim as well.

VI. Conclusion

In consideration of the foregoing, theCourt finds that Rule 4–7.2(c)(1)(G) and

25. Moreover, even to the extent the Barcould demonstrate that a ban on backgroundsounds materially advances its substantial in-terests, the Bar cannot satisfy the fourthprong of Central Hudson because the cate-gorical prohibition on all background soundsexcept instrumental music is broader thannecessary to serve the Bar’s interests. SeeCentral Hudson, 447 U.S. at 566, 100 S.Ct.2343. Indeed, the Bar’s argument that theinstant Rule should be interpreted more nar-rowly to prohibit only those sounds which

are deceptive, misleading or manipulativedemonstrates that even the Bar believes thecategorical prohibition is broader than neces-sary to serve its interests. See Bar Motion at16; Third Tarbert Aff., Ex. A at 2. Thus,because the categorical prohibition on back-ground sounds is not ‘‘narrowly tailored’’ toserve the Bar’s stated interests, the Rule failsunder the fourth prong of Central Hudson aswell. See Bd. of Trs. of State Univ. of N.Y. v.Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106L.Ed.2d 388 (1989)


Rule 4–7.2(c)(2) are not unconstitutionallyvague and the Bar’s Motion is due to begranted, in part, to that extent alone. Inall other respects, the Bar Motion will bedenied. Specifically, the Court determinesthat Rules 4–7.2(c)(3) and 4–7.5(b)(1)(A), aswell as the ‘‘useful, factual’’ comment toRule 4–7.1 are unconstitutionally vague ontheir face. Accordingly, the Court willgrant Harrell’s Motion to that extent andenjoin the enforcement of those Rules.Finally, the Court determines that Rule 4–7.2(c)(2) as applied to ‘‘Don’t settle for lessthan you deserve’’ and Rule 4–7.5(b)(1)(C)as it would apply to the sounds in Harrell’sproposed advertisements impermissibly re-strict Harrell’s First Amendment rights.As such, the Court will grant, in part,Harrell’s Motion on that basis as well andenjoin enforcement of those Rules as-ap-plied in this case. In light of the forego-ing, it is

ORDERED:

1. The Florida Bar’s Request forLeave to Respond to Plaintiffs’ Noticeof Identifying Inconsistent Applica-tions of Advertising Rules (Doc. No.76) is DENIED.

2. Plaintiffs’ Motion for SummaryJudgment and Memorandum in Sup-port of Motion (Doc. No. 62) isGRANTED, in part, and DENIED,in part.

A. Plaintiffs’ Motion is GRANTEDas follows:

i. Bar Rules 4–7.2(c)(3) and 4–7.5(b)(1)(A) which prohibit the useof ‘‘manipulative’’ advertisements,and the comment to Bar Rule 4–7.1requiring advertisements to containonly ‘‘useful, factual information’’

are void for vagueness. As such,the Florida Bar will be permanentlyenjoined from enforcing these rules.

ii. Bar Rule 4–7.2(c)(2) as appliedto ‘‘Don’t settle for less than youdeserve’’ violates Plaintiffs’ FirstAmendment rights. Thus, the Flor-ida Bar will be permanently en-joined from enforcing that Rule inthe manner applied to Harrell inthis case.

iii. Bar Rule 4–7.5(b)(1)(C) whichprohibits the use of ‘‘any back-ground sound other than instrumen-tal music’’ as it would apply to thebackground sounds in Harrell’s pro-posed advertisements violates Plain-tiffs’ First Amendment rights. TheFlorida Bar will be permanently en-joined from enforcing this Rule inthat manner.26

B. In all other respects, Plaintiffs’Motion is DENIED.

C. The Court will enter forthwith aFinal Judgment and Permanent In-junction in accordance with theforegoing.

3. Defendants’ Motion for SummaryJudgment and Memorandum of Lawin Support of Motion and in Opposi-tion to Plaintiff’s [sic] Motion for Sum-mary Judgment (Doc. No. 65) isGRANTED, in part, and DENIED,in part.

A. Defendants’ Motion is GRANT-ED to the extent that the Courtfinds that Bar Rule 4–7.2(c)(1)(G),which prohibits communicationspromising results, and Bar Rule 4–7.2(c)(2), which prohibits statements

26. Specifically, the background sounds inHarrell’s proposed advertisements are sounds

caused by his dogs, gym equipment, and otheractivities in the firm. See Harrell Decl. ¶ 28.


describing or characterizing thequality of a lawyer’s services, arenot unconstitutionally vague.

B. In all other respects, Defendants’Motion is DENIED.

C. The Court will enter forthwith aseparate Final Judgment in accor-dance with the foregoing.

DONE AND ORDERED.

,

Lucius WORDLEY, Plaintiff,

v.

Officer Pablo SAN MIGUEL,Defendant.

Case No. 11–23754–CIV.

United States District Court,S.D. Florida.

Jan. 3, 2013.

Background: Arrestee sued police officerunder § 1983, claiming that the officerused excessive force during the arrest. Theofficer moved to dismiss.

Holding: The District Court, Patricia A.Seitz, J., held that the officer was entitledto qualified immunity.

Motion granted.

1. Federal Civil Procedure O1832

Court may consider a document at-tached to a motion to dismiss if the docu-

ment is central to the plaintiff’s claim andundisputed, for which purpose ‘‘undisput-ed’’ means that the authenticity of thedocument is not challenged.

See publication Words and Phras-es for other judicial constructionsand definitions.

2. Civil Rights O1376(2)

Qualified immunity offers governmentofficials sued in their individual capacitycomplete protection as long as their con-duct violates no clearly established law ofwhich a reasonable person would haveknown.

3. Civil Rights O1376(1, 2), 1407

Court must grant qualified immunityto a government official unless the factstaken in the light most favorable to theplaintiff show: (1) that there was a viola-tion of the Constitution and (2) that theillegality of the official’s actions was clearlyestablished at the time of the incident; inother words, once an official proves that hewas acting within his discretionary author-ity, the burden shifts to the plaintiff toprove that the official’s acts violated clear-ly established law of which a reasonableperson would have known.

4. Civil Rights O1376(6)

Reasonable police officer would nothave known that twisting an arrestee’shand while handcuffing him, resulting inthe arrestee’s broken finger, amounted toexcessive force, and thus, the officer wasentitled to qualified immunity in the arres-tee’s § 1983 suit; while there were no alle-gations that the arrestee was resisting orstruggling, there were also no allegationsof a blow or any other action that wouldseem unnecessary to the process of re-straining and handcuffing him, and thearrestee’s crime involved a physical alter-

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