HARRELL v. THE FLORIDA BAR 1241

1241HARRELL v. THE FLORIDA BARCite as 608 F.3d 1241 (11th Cir. 2010)

determination. Accordingly, we affirm theBIA’s decision and deny Xia’s petition forreview.

PETITION DENIED.

,

William H. HARRELL, Jr., Harrell &Harrell, P.A., et al., Plaintiffs–

Appellants,

v.

THE FLORIDA BAR, et al.,Defendants–Appellees.

No. 09–11910.

United States Court of Appeals,Eleventh Circuit.

June 17, 2010.

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.

Holdings: The Court of Appeals, Marcus,Circuit Judge, held that:

(1) attorney had standing to challenge fiveof nine rules on vagueness grounds;

(2) attorney’s vagueness challenge wasripe;

(3) attorney had standing to bring as ap-plied First Amendment challenge to allnine rules;

(4) only one of attorney’s as applied FirstAmendment challenges was ripe forreview;

(5) attorney’s challenge to Florida Bar’srejection of his slogan ‘‘Don’t settle forless than you deserve’’ was not moot;and

(6) advertising rule requiring a lawyersubmit advertisements for review didnot amount to an unconstitutional im-position on protected commercialspeech.

Affirmed in part, reversed in part, andremanded.

1. Constitutional Law O904

To demonstrate standing to bring avagueness challenge to a state Bar’s rulesunder the Fourteenth Amendment, an at-torney must show that: (1) he has suf-fered, or imminently will suffer, an injury-in-fact; (2) the injury is fairly traceable tothe operation of the rules; and (3) a favor-able judgment is likely to redress the inju-ry. U.S.C.A. Const.Amend. 14.


An attorney bringing a vaguenesschallenge to a state Bar’s rules under theFourteenth Amendment must demonstratestanding with respect to each Bar rule thathe challenges. U.S.C.A. Const.Amend. 14.

3. Federal Courts O776

Whether an attorney has standing tochallenge a state Bar’s rules is a legalissue subject to de novo review.


A court applies the injury-in-factstanding requirement most loosely whereFirst Amendment rights are involved, lestfree speech be chilled even before the lawor regulation is enforced. U.S.C.A. Const.Amend. 1.

1242 608 FEDERAL REPORTER, 3d SERIES

5. Constitutional Law O855An actual injury can exist for standing

purposes when the plaintiff is chilled fromexercising her right to free expression orforgoes expression in order to avoid en-forcement consequences; in such an in-stance, the injury is self-censorship.U.S.C.A. Const.Amend. 1.

6. Constitutional Law O875In order to substantiate his claimed

self-censorship injury, attorney challeng-ing Florida Bar’s advertising rules underthe First Amendment was required to es-tablish that: (1) he seriously wished toadvertise his services, (2) such advertisingwould have arguably been affected by therules, but the rules were at least arguablyvague as they applied to him, and (3) therewas at least a minimal probability that therules would have been enforced, if theywere violated; if attorney could make thisthreshold showing, he could claim an inju-ry-in-fact to his First Amendment rightsthat recurred each day and was irrepara-ble, since it was the existence, not theimposition, of standardless requirementsthat caused the injury. U.S.C.A. Const.Amend. 1.

7. Constitutional Law O875Attorney challenging Florida Bar’s

advertising rules on vagueness groundsunder the First Amendment provided am-ple proof that he intended to advertise theservices of his firm, as required to sub-stantiate his claimed self-censorship injuryfor standing purposes; attorney was apracticing personal injury lawyer in Flori-da who had advertised in a variety ofmedia for many years, and he depended onadvertising for the success of his firm, somuch so that the firm could not pull itstelevision ads entirely without facing al-most certain bankruptcy, and attorneyaverred that, were it not for the rules’prohibitions on the use of various advertis-ing techniques, he would have used those

techniques in his ads. U.S.C.A. Const.Amend. 1.

8. Constitutional Law O875Attorney challenging Florida Bar’s

advertising rules on vagueness groundsunder the First Amendment made an ade-quate threshold showing that rules prohib-iting advertisements that were manipu-lative, promised results, characterized thequality of the lawyer’s services, and pro-vided anything other than useful, factualinformation seemed to apply to his pro-posed advertisements, but failed to providemeaningful standards and thus chilled hisspeech, as required to substantiate hisself-censorship injury claim for standingpurposes, by pointing to the ambiguity inthe language of the rules themselves, pre-senting examples of contradictory advisoryrulings by the Bar, and suggesting thatthe contradictory rulings revealed a meas-ure of arbitrariness in the rules them-selves. U.S.C.A. Const.Amend. 1.

9. Constitutional Law O875There was sufficient evidence of Flori-

da Bar’s intent to enforce its advertisingrules if it perceived a violation, to support,for standing purposes, self-censorship inju-ry claim of attorney challenging the ruleson vagueness grounds under the FirstAmendment; the Bar recently revised therules, the Florida Supreme Court had onmultiple occasions upheld them, and theBar was defending them in attorney’s ac-tion, and had explicitly warned attorneythat running impermissible advertisementsmight subject him to discipline. U.S.C.A.Const.Amend. 1.

10. Constitutional Law O855If a law or rule challenged under the

First Amendment was recently enacted, orif the enforcing authority is defending thechallenged law or rule in court, an intentto enforce the rule may be inferred forpurposes of establishing a self censorship


injury as an element of standing.U.S.C.A. Const.Amend. 1.

11. Constitutional Law O875Attorney lacked an injury-in-fact flow-

ing from any supposed vagueness in Flori-da Bar’s advertising rules prohibitingstatements that were unsubstantiated, anycommunication that compared the lawyer’sservices with other lawyers’ services, un-less the comparison could be factually sub-stantiated, and any background sound oth-er than instrumental music, or in the ruleagainst misleading advertisements, andtherefore lacked standing to challengethem on vagueness grounds under theFirst Amendment, absent evidence thatattorney could not derive the core meaningfrom the rules. U.S.C.A. Const.Amend. 1.

12. Federal Courts O12.1The ‘‘ripeness doctrine’’ protects fed-

eral courts from engaging in speculation orwasting their resources through the reviewof potential or abstract disputes.

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

13. Constitutional Law O978Federal courts apply the ripeness doc-

trine most permissively in the FirstAmendment context. U.S.C.A. Const.Amend. 1.

14. Federal Courts O12.1To determine whether a claim is ripe,

courts assess both the fitness of the issuesfor judicial decision and the hardship tothe parties of withholding judicial review;the fitness prong is typically concernedwith questions of finality, definiteness, andthe extent to which resolution of the chal-lenge depends upon facts that may not yetbe sufficiently developed, while the hard-ship prong asks about the costs to thecomplaining party of delaying review untilconditions for deciding the controversy areideal.

15. Constitutional Law O978Attorney was not required, for pur-

poses of ripeness, to obtain an opinionfrom the Florida Bar applying advertisingrules to his proposed advertisements be-fore he could challenge the rules faciallyon vagueness grounds under the FirstAmendment. U.S.C.A. Const.Amend. 1.

16. Constitutional Law O978It is immaterial in determining ripe-

ness whether a party challenging an alleg-edly vague statute under the First Amend-ment applied for permission to engage inthe challenged conduct; since the very ex-istence of censorial power is unacceptable,there is little reason for a court to forbearentertaining an anticipatory challenge inorder to allow that power to be exercised.U.S.C.A. Const.Amend. 1.

17. Administrative Law and ProcedureO704

The hardship prong of a ripeness as-sessment is not an independent require-ment divorced from the consideration ofthe institutional interests of the court andagency, and where there are no significantagency or judicial interests militating infavor of delay, lack of ‘‘hardship’’ cannottip the balance against judicial review.

18. Constitutional Law O1520In the area of freedom of expression

an overbroad regulation may be subject tofacial review and invalidation, even thoughits application in the case under consider-ation may be constitutionally unobjectiona-ble. U.S.C.A. Const.Amend. 1.

19. Constitutional Law O855In the context of a First Amendment

claims, where the complaint alleges an ac-tual prohibition rather than the absence ofany standard at all, to establish injury-in-fact from chilled speech, a plaintiff mustshow that, as a result of his desired ex-pression, (1) he was threatened with prose-


cution; (2) prosecution is likely; or (3)there is a credible threat of prosecution.U.S.C.A. Const.Amend. 1.

20. Constitutional Law O855In the context of a First Amendment

claim, where the complaint alleges an actu-al prohibition rather than the absence ofany standard at all, to establish injury-in-fact from chilled speech based on a credi-ble threat of prosecution, a plaintiff is re-quired to establish: first, that he seriouslywishes to engage in expression that is atleast arguably forbidden by the pertinentlaw; and second, that there is at leastsome minimal probability that the chal-lenged rules will be enforced if violated.U.S.C.A. Const.Amend. 1.

21. Constitutional Law O875Attorney bringing as applied chal-

lenge to Florida Bar’s advertising rules,alleging the rules specifically prohibitedconstitutionally protected advertising con-duct in violation of the First Amendment,adequately showed that he would face acredible threat of prosecution if he en-gaged in the desired speech for purposesof establishing an injury-in-fact based onchilled speech, by describing a number ofadvertising campaigns he proposed to de-velop and run, and explaining how therules seemed to proscribe those advertise-ments, and by showing that there was atleast a minimal probability that the Barwould enforce the rules if he was deemedto have violated them. U.S.C.A. Const.Amend. 1.

22. Federal Civil Procedure O103.3Redressability of an injury is estab-

lished, for standing purposes, when a fa-vorable decision would amount to a signifi-cant increase in the likelihood that theplaintiff would obtain relief that directlyredresses the injury suffered.

23. Constitutional Law O978Given the distinct possibility that

agency review will eliminate the need for

judicial review, and given the role of theripeness doctrine in protecting agenciesfrom judicial interference until an adminis-trative decision has been formalized andits effects felt in a concrete way by thechallenging parties, a court may requirethat First Amendment plaintiffs seek de-terminations with varying degrees of final-ity from agencies whose rules or decisionsthey seek to challenge on an as-appliedbasis. U.S.C.A. Const.Amend. 1.

24. Administrative Law and ProcedureO704

Since few, if any, institutional inter-ests would be served by asking an agencyto interpret a rule whose application isutterly clear, the absence of an agencyopinion ordinarily will not affect whether achallenge to such a rule is fit for immedi-ate judicial review.

25. Constitutional Law O978Attorney’s as applied challenge to

Florida Bar’s advertising rule prohibitingany background sound other than instru-mental music, alleging the rule specificallyprohibited constitutionally protected ad-vertising conduct in violation of the FirstAmendment, was ripe for review, eventhough attorney had not sought an adviso-ry opinion from the Florida Bar; any ambi-guity in what constituted a ‘‘backgroundsound’’ or ‘‘instrumental music’’ was deminimis. U.S.C.A. Const.Amend. 1.

26. Constitutional Law O978Attorney’s as applied challenges to

eight advertising rules of the Florida Bar,alleging they specifically prohibited con-stitutionally protected advertising conductin violation of the First Amendment, werenot ripe for judicial review; there was asubstantial measure of uncertainty aboutthe fundamental factual issue of how theBar would apply the rules to attorney’sproposed advertisements, and the FloridaBar provided a relatively expeditious


means of testing the reach of the rulesthrough an advisory opinion process, forwhich even a script or outline of a pro-posed advertisement would suffice, andattorney gave no substantial reason to be-lieve that submitting a bare script of out-line of the advertisements he proposedwould have constituted a hardship.U.S.C.A. Const.Amend. 1.

27. Federal Courts O12.1A federal court has no authority to

give opinions upon moot questions or ab-stract propositions, or to declare principlesor rules of law which cannot affect thematter in issue in the case before it.

28. Federal Courts O12.1Voluntary cessation of allegedly illegal

conduct does not deprive the tribunal ofpower to hear and determine the case, i.e.,does not make the case moot; since thedefendant is free to return to his old ways,he bears a heavy burden of demonstratingthat his cessation of the challenged con-duct renders the controversy moot.

29. Federal Courts O12.1A defendant’s burden of demonstrat-

ing that his voluntary cessation of chal-lenged conduct renders a controversy mootwill have been borne only if:( 1) it can besaid with assurance that there is no rea-sonable expectation that the alleged viola-tion will recur, and (2) interim relief orevents have completely and irrevocablyeradicated the effects of the alleged viola-tion; in other words, when a party aban-dons a challenged practice freely, the casewill be moot only if it is absolutely clearthat the allegedly wrongful behavior couldnot reasonably be expected to recur.

30. Federal Courts O12.1In general, the repeal of a challenged

statute is one of those events that makes itabsolutely clear that the allegedly wrong-ful behavior could not reasonably be ex-pected to recur, so as to render moot anaction challenging the statute.

31. Federal Courts O12.1A challenge to a government policy

that has been unambiguously terminatedwill be moot in the absence of some rea-sonable basis to believe that the policy willbe reinstated if the suit is terminated.

32. Federal Courts O12.1Where the circumstances surrounding

the voluntary cessation of challenged con-duct suggest that the defendant is at-tempting to manipulate the court’s juris-diction to insulate a favorable decisionfrom review, courts will not deem a contro-versy moot; more generally, the timingand content of a voluntary decision tocease a challenged activity are critical indetermining the motive for the cessationand therefore whether there is any reason-able expectation that the alleged violationwill recur.

33. Federal Courts O12.1A defendant’s voluntary cessation of

conduct before receiving notice of a legalchallenge to that conduct weighs in favorof mootness, while cessation that occurslate in the game will make a court moreskeptical of voluntary changes that havebeen made.

34. Federal Courts O12.1With respect to content of a voluntary

decision to cease a challenged activity in amootness determination, a court looks fora well-reasoned justification for the cessa-tion as evidence that the ceasing partyintends to hold steady in its revised andpresumably unobjectionable course.

35. Federal Courts O12.1The timing and content of a volun-

tary decision to cease challenged conductare relevant in assessing whether the de-fendant’s termination of the challengedconduct is sufficiently unambiguous towarrant application of the Troiano pre-sumption in favor of governmental enti-


ties, that a challenge to a governmentpolicy that has been unambiguously ter-minated is moot; short of repealing astatute, if a governmental entity decidesin a clandestine or irregular manner tocease a challenged behavior, it can hardlybe said that its termination of the behav-ior is unambiguous.

36. Constitutional Law O977Attorney’s constitutional challenge to

Florida Bar’s rejection of his slogan ‘‘Don’tsettle for less than you deserve’’ underBar’s advertising rules was not renderedmoot by the Board of Governors declara-tion that the slogan was permissible, atleast as used in the advertisements thatattorney originally submitted for review;Board acted in secrecy, meeting behindclosed doors, and failing to disclose anybasis for its decision, and Board took upthe matter of attorney’s advertisementsonly at the urging of the Bar’s counselafter the litigation had commenced, and, indoing so, may have departed from its ownprocedures.

37. Attorney and Client O32(9) Constitutional Law O2049

Florida Bar’s advertising rule requir-ing a lawyer to submit any television orradio advertisement for review at least 20days before its first planned disseminationor airing date, so as to give the Bar ap-proximately 15 days in which to review thead and five days mail and transit time, didnot amount to an unconstitutional imposi-tion on protected commercial speech underthe First Amendment; rule directly ad-vanced Bar’s substantial interests in curb-ing practices that negatively impacted theadministration of justice, protected thepublic from abusive practices, and pre-served the reputation and integrity of thelegal profession, and 20-day delay placedminimal burden on attorneys. U.S.C.A.Const.Amend. 1.

38. Constitutional Law O1537Commercial speech enjoys a limited

measure of protection, commensurate withits subordinate position in the scale ofFirst Amendment values, and is subject tomodes of regulation that might be imper-missible in the realm of noncommercialexpression. U.S.C.A. Const.Amend. 1.

39. Constitutional Law O1535Under the ‘‘intermediate scrutiny’’

standard governing the regulation of non-deceptive commercial speech set forth inCentral Hudson, a court asks whether animposition on commercial speech (1) pro-motes a substantial governmental interest;(2) directly advances the interest asserted;and (3) is not more extensive than neces-sary to serve that interest. U.S.C.A.Const.Amend. 1.

40. Constitutional Law O1541Unlike rational basis review, the Cen-

tral Hudson standard governing the regu-lation of non-deceptive commercial speechdoes not permit a court to supplant theprecise interests put forward by the Statewith other suppositions. U.S.C.A. Const.Amend. 1.

41. Constitutional Law O1541Burden of demonstrating that the

challenged regulation advances assertedinterests in a direct and material way,under Central Hudson test governing reg-ulation of non-deceptive commercialspeech, is not satisfied by mere speculationor conjecture; rather, a governmentalbody seeking to sustain a restriction oncommercial speech must demonstrate thatthe rule at issue targets a concrete, non-speculative harm. U.S.C.A. Const.Amend.1.

Gregory A. Beck, Brian Wolfman, PublicCitizen Lit. Group, Washington, DC, David


Michael Frank, Law Office of David M.Frank, P.A., Tallahassee, FL, for Plain-tiffs–Appellants.

Barry Richard, Mary Hope Keating,Greenberg Traurig, P.A., Tallahassee, FL,Elliott B. Kula, Greenberg Traurig, P.A.,Miami, FL, for Defendants–Appellees.

Appeal from the United States DistrictCourt for the Middle District of Florida.

Before EDMONDSON and MARCUS,Circuit Judges, and BARBOUR,* DistrictJudge.

MARCUS, Circuit Judge:

Plaintiff William H. Harrell, Jr., joinedby his law firm Harrell & Harrell and thenonprofit organization Public Citizen, ap-peals from the district court’s grant ofsummary judgment in favor of defendantThe Florida Bar (‘‘the Bar’’). Harrell, whoadvertises the services of his firm exten-sively, claims in a broad facial challengethat nine advertising-related provisions ofthe Rules Regulating the Florida Bar (‘‘therules’’) are so vague as to violate his dueprocess rights. He also claims in an as-applied challenge that the same rules vio-late his First Amendment rights by pro-hibiting him from advertising in a varietyof specific ways, including through the useof a slogan—‘‘Don’t settle for less than youdeserve’’—that he has included in his ad-vertisements for years. Finally, he chal-lenges as an unconstitutional burden on hisspeech a requirement that lawyers submitproposed radio and television advertise-ments to the Florida Bar for review atleast twenty days before their dissemina-tion.

The bulk of this case, as it comes to uson appeal, concerns the ‘‘[t]hree strands ofjusticiability doctrine’’—standing, ripeness,and mootness—that go to the heart of the

Article III case or controversy require-ment. Socialist Workers Party v. Leahy,145 F.3d 1240, 1244 (11th Cir.1998). Thedistrict court, in an order of final summaryjudgment, concluded that all of Harrell’sclaims except for his challenge to the twen-ty-day pre-filing rule were nonjusticiableon one of those three grounds. On themerits of the sole claim it considered justi-ciable, the district court held that the Bar’spre-filing rule did not violate the FirstAmendment.

After thorough review, we conclude thatHarrell’s facial vagueness challenge is jus-ticiable with respect to five of the ninechallenged rules. As to all but one of thenine rules, however, we agree with thedistrict court that Harrell’s as-appliedFirst Amendment challenge is not ripe,and therefore is nonjusticiable. Turningto the question of Harrell’s slogan, weagree with Harrell that his challenge tothe Bar’s rejection of ‘‘Don’t settle for lessthan you deserve’’ is not moot. Finally,we conclude on the merits that the FloridaBar’s twenty-day pre-filing rule is constitu-tional. Accordingly, we affirm in part, re-verse in part, and remand for further pro-ceedings consistent with this opinion.

I.

William Harrell is an attorney in Jack-sonville, Florida, and the managing part-ner of the law firm of Harrell & Harrell,P.A. The firm, which specializes in per-sonal injury law, depends heavily on adver-tising to generate business, and advertisesthrough a variety of media such as televi-sion, radio, billboards, and a website.Like all Florida lawyers, Harrell is subjectto the Bar’s extensive attorney advertisingrules. Those rules, which are found in theRules Regulating the Florida Bar, apply

* Honorable William Henry Barbour, Jr., Unit-ed States District Judge for the Southern Dis-

trict of Mississippi, sitting by designation.


expansively to a wide range of commonadvertising content, such as statements ofquality, comparisons, background sounds,and other stock advertising techniques.To promote compliance with the rules,Florida lawyers like Harrell must file pro-posed advertisements with the Florida Barfor a determination of whether the adver-tisement is permissible. Disseminating anon-compliant advertisement providesgrounds for discipline, including publicreprimand, suspension, and even disbar-ment. Rules 3–4.2 & 3–5.1.

The present version of the rules reflectsa long and undeniable trend towards in-creasingly restrictive measures to controlattorney advertising. The goal of thesemeasures is to protect the public frommisleading advertising and to preserve thereputation of the legal profession in theface of what some perceive as increasinglyunscrupulous advertisements. Thus, forexample, in 1990, the Florida SupremeCourt adopted a range of new rules andexplanatory comments that prohibitedforms of advertising content such as slo-gans, jingles, references to past ‘‘resultsobtained,’’ testimonials, statements that‘‘describ[e] or characteriz[e] the quality ofthe lawyer’s services,’’ statements thatwould be considered true for most lawyerspracticing in Florida, statements of com-parison like ‘‘one of the best’’ or ‘‘one ofthe most experienced,’’ depictions that‘‘create[ ] suspense’’ or contain ‘‘exaggera-tions’’ or ‘‘call[s] for legal services,’’ and‘‘audio or video portrayal[s] of an event orsituation.’’ See In re Petition to Amendthe Rules Regulating The Fla. Bar, 571So.2d 451, 460–64 (Fla.1990) (‘‘In re 1990Amendments’’). In contrast to the previ-ous set of rules, which had excluded fromtheir purview ‘‘[q]uestions of effectivenessand taste,’’ In re Rules Regulating TheFla. Bar, 494 So.2d 977, 1071–72 (Fla.1986), the new amendments required thatlawyers ‘‘provide only useful, factual infor-mation presented in a nonsensational man-

ner.’’ In re 1990 Amendments, 571 So.2dat 464; see also Rule 4–7.1, cmt.

In 1997, again concerned about a loss ofpublic confidence in lawyers and the legalsystem, the Bar petitioned the Florida Su-preme Court for further restrictions.While rejecting a wholesale ban on alltelevision and radio advertising in thestate, as advocated by a task force of theBar, the court amended the rules to placeadditional prohibitions on ‘‘visual or verbaldescriptions’’ or illustrations that are ‘‘ma-nipulative’’ or likely to ‘‘confuse’’ the view-er. In re Amendments to Rules Regulat-ing The Fla. Bar, 762 So.2d 392, 395–96,409–10 (Fla.1999).

In 2004, the Bar proposed still moreamendments to the rules, notably includinga prohibition on advertisements that‘‘promise[ ] results,’’ Rule 4–7.2(c)(1)(G),and a rule that appeared to be a pre-screening requirement, pursuant to whicha lawyer who sought to air a television orradio advertisement would have to submitthe ad for the Bar’s review twenty daysprior to the date of airing. See Rule 4–7.7(a)(1)(C). The Florida Supreme Courtadopted the Bar’s recommendations. Inre Amendments to The Rules RegulatingThe Florida Bar, 971 So.2d 763, 764–65(Fla.2007).

To help attorneys comply with theseelaborate rules governing advertising, theBar provides a three-tiered administrativereview structure. An attorney ordinarilymust submit a proposed advertisement tothe Bar’s Ethics and Advertising Depart-ment, where a Department staff memberissues an advisory opinion. Any adverseopinion of the Department may be appeal-ed to the Standing Committee on Advertis-ing, see Florida Bar Procedures for Issu-ing Advisory Opinions Relating to LawyerAdvertising or Solicitation (‘‘Procedures’’)§ 4(a), and any adverse decision of theStanding Committee in turn may be ap-


pealed to the Board of Governors (‘‘theBoard’’), which is the chief governing bodyof The Florida Bar, id. § 4(h). The Boardmay also review decisions of the StandingCommittee sua sponte under limited cir-cumstances. An attorney cannot be disci-plined for filing a non-compliant advertise-ment with the Bar, Tarbert Aff. ¶ 13, andindeed, a favorable determination by theEthics and Advertising Department or anysuperior body generally acts as a safe har-bor against discipline on the basis of theadvertisement submitted, Rule 4–7.7(a)(1)(F); Rule 4–7.7(a)(2)(F).

Harrell is intimately acquainted with theadministrative review process. Accordingto his affidavit, the Bar has over the yearsrepeatedly rejected his firm’s advertisingsubmissions for containing elements thathe considers harmless, such as an illustra-tion of stick people, a statue of Lady Jus-tice, the scenery outside a window behindhim, and a picture of one of his Bar-approved telephone-book advertisements.Harrell Aff. ¶ 5, Sept. 15, 2008.1 Harrellsubmits that the Bar’s reasons for reject-ing his advertisements are often opaque orhyper-technical. Thus, for example, henotes that in rejecting his proposed slogan‘‘You Need an Attorney Fighting for YourRights,’’ the Bar claimed that the adver-tisement was misleading because, ‘‘[w]hilean attorney can certainly be most helpfulto injured individuals, they do not have tohave an attorney to bring or settle a civilnegligence claim.’’ Id.

Harrell has on four occasions appealedthe Ethics and Advertising Department’srejection of his advertisements to theStanding Committee, arguing that the adswere harmless to consumers, and the Bar’srestrictions themselves unconstitutional.Harrell Aff. ¶¶ 6, 14. Each time, the com-mittee affirmed the decision below without

addressing his arguments. Harrell Aff.¶¶ 6, 15. After several appeals to theBoard of Governors lasting between sevenand nine months each, two of the rejec-tions were eventually reversed. TheBoard, however, affirmed without explana-tion the rejection of an advertisement de-picting Harrell standing in front of hisoffice building. Harrell Aff. ¶ 7.

Similar vicissitudes ultimately gave riseto this lawsuit, beginning with Harrell’sproposed use in 2002 of the advertisingslogan ‘‘Don’t settle for anything less.’’Around that time, the Bar informed Har-rell that the slogan impermissibly ‘‘cre-ate[d] unjustified expectations about re-sults the lawyer can achieve,’’ in violationof former Rule 4–7.2(b)(1)(B), Harrell Aff.¶¶ 8–9, but told him that ‘‘Don’t settle forless than you deserve’’ was acceptable, id.¶ 9. The Bar did not explain its reasoning,but Harrell adopted the Bar’s proposal andused ‘‘Don’t settle for less than you de-serve’’ as the centerpiece of the firm’s newmarketing campaign. Harrell Aff. ¶¶ 9–10.The slogan remains on Harrell & Harrell’swebsite to this day.

Five years after it had authorized theslogan, however, the Bar informed Harrellthat ‘‘Don’t settle for less than you de-serve’’ improperly characterized the quali-ty of his firm’s services and therefore wasprohibited under Rule 4–7.2(c)(2). HarrellAff., Ex. 3, at 2. Harrell appealed to theStanding Committee, reminding it that theBar had itself suggested the slogan severalyears earlier, but, by letter dated Novem-ber 28, 2007, the Standing Committee af-firmed the decision of the Ethics and Ad-vertising Department, noting that theCommittee had previously rejected ‘‘Donot settle for anything less’’ and similarslogans. Harrell Aff. Ex. 5, at 2.

1. Unless otherwise noted, all references to the‘‘Harrell Affidavit’’ are to Harrell’s secondaffidavit, filed on September 15, 2008, in sup-

port of Harrell’s motion for summary judg-ment.


Harrell did not appeal the ruling to theBoard of Governors, but instead filed thislawsuit in the United States District Courtfor the Middle District of Florida on Janu-ary 7, 2008, seeking a declaratory judg-ment and injunctive relief. He claimed notonly that the Bar’s application of Rule 4–7.2(c)(2) to his slogan violated his FirstAmendment rights, but that nine separateprovisions of the Bar’s advertising rulesimposed unconstitutional content-based re-strictions on his commercial speech. Healso claimed more broadly that these ruleswere impermissibly vague and, therefore,facially invalid under the FourteenthAmendment’s due process clause. He ob-jected to the following rules:

— Rule 4–7.1, a general prefatory rule,the comment to which limits permissibleadvertising content to ‘‘useful, factualinformation presented in a nonsensation-al manner’’;— The comment to Rule 4–7.2(c)(1),which bans statements that, ‘‘[s]tandingby [themselves,] TTT impl[y] falsely thatthe lawyer possesses a qualification notcommon to virtually all lawyers practic-ing in Florida’’;— Rule 4–7.2(c)(1)(D), which prohibitsstatements that are ‘‘unsubstantiated infact’’;— Rule 4–7.2(c)(1)(G), which prohibitsstatements that ‘‘promise[ ] results’’;— Rule 4–7.2(c)(1)(I), which forbidslawyers to ‘‘compar[e] [their] serviceswith other lawyers’ services, unless thecomparison can be factually substantiat-ed’’;— Rule 4–7.2(c)(2), which bans ‘‘state-ments describing or characterizing thequality of the lawyer’s services’’;— Rule 4–7.2(c)(3), which prohibits theuse of ‘‘visual or verbal descriptions, de-pictions, illustrations, or portrayals ofpersons, things, or events’’ that are ‘‘ma-nipulative, or likely to confuse the view-er’’;

— Rule 4–7.5(b)(1)(A), which similarlyprohibits any television or radio adver-tisement that is ‘‘deceptive, misleading,manipulative, or that is likely to confusethe viewer’’; and— Rule 4–7.5(b)(1)(C), which prohibits‘‘any background sound other than in-strumental music.’’

Separately, Harrell also claimed that byrequiring him to file proposed radio andtelevision advertisements for review twen-ty days prior to airing them, the Bar haderected an invalid prior restraint on hisspeech.

In support of his speech and due processclaims, Harrell explained at length how anumber of advertisements he desired torun appeared to be prohibited by the rules.These proposed ads fall into three generalcategories: an ad campaign based on thetheme of ‘‘family’’; another campaignbased on the theme of ‘‘choices’’ that aprospective client must make in choosingrepresentation; and a loosely definedgroup of ads in which Harrell intends tofeature one or more individual slogans.

Harrell’s family-themed advertisements,for example, would have featured Harrell,his family, and his mastiff dogs, and wouldhave ‘‘emphasized the family-friendly na-ture of the firm and its charitable contri-butions.’’ Harrell Aff. ¶ 28. To humanizethe firm, the ads would have shown thefirm’s facilities, including an ‘‘on-site gym-nasium established to promote the healthof its employees,’’ and would have men-tioned the complimentary personal train-ers and nutritional counselors available toemployees. Id. ‘‘Other advertisements inthe campaign would have sought to hu-manize the firm’s individual lawyers bytelling their personal stories.’’ Id.

Harrell explained, however, that the adsappeared to be prohibited or severely lim-ited by the operation of several of thechallenged rules. For one, he claimed that


an advertisement focused on the personalnarratives and quality of life of a law firm’sattorneys would seem to go beyond provid-ing ‘‘only useful, factual information pre-sented in a nonsensational manner.’’ Rule4–7.1, cmt. Separately, with its heavy em-phasis on the personality and character ofHarrell and the firm’s other attorneys, heargued that the ad might well run afoul ofthe prohibition on ‘‘statements describingor characterizing the quality of the law-yer’s services,’’ see Harrell Aff. ¶ 28(c),which the Florida Supreme Court has ap-plied to statements about a lawyer’s ‘‘char-acter and personality traits,’’ Fla. Bar v.Pape, 918 So.2d 240, 244 (Fla.2005).

Harrell also explained how the family-themed advertisements that he proposedarguably would offend Rule 4–7.2(c)(3),which prohibits ‘‘visual or verbal descrip-tions, depictions, illustrations, or portray-als of persons, things, or events that aredeceptive, misleading, manipulative, orlikely to confuse the viewer.’’ In particu-lar, Harrell’s attempt to attract clients byvisually depicting his law firm as a ‘‘fami-ly’’ may be viewed as ‘‘manipulative.’’Furthermore, as Harrell explains, al-though his mastiff dogs are in fact ‘‘friend-ly, loyal, and easy-going,’’ Harrell Aff.¶ 28(b), they also ‘‘are popularly known asguard dogs that ferociously defend theirterritory,’’ id., and therefore might fallwithin the Florida Supreme Court’s deter-mination that the use of aggressive dogs,such as the pit bull, is manipulative, Pape,918 So.2d at 244. For these same reasons,Harrell suggested that his ads arguablywould violate Rule 4–7.5(b)(1)(A), too,which prohibits in any television or radioad ‘‘any feature that is deceptive, mislead-ing, manipulative, or that is likely to con-fuse the viewer.’’

Finally, Harrell said, nearly every as-pect of his advertisements plausibly couldbe deemed ‘‘unsubstantiated in fact’’ inviolation of Rule 4–7.2(c)(1)(D), since the

notions of a firm being ‘‘family friendly’’ or‘‘like family’’ are impossible to measure ina fact-bound way. Harrell added that hisfamily-themed advertisements would alsocontain ‘‘background noises caused by [his]dogs, by gym equipment, and by otheractivities in the firm,’’ Harrell Aff. ¶ 28(d),and therefore almost certainly would vio-late Rule 4–7.5(b)(1)(C), which prohibitsthe use in television and radio ads of ‘‘anybackground sound other than instrumentalmusic.’’ Indeed, while the Bar has pre-dictably invoked this rule to prohibit thesound of honking horns, traffic, the soundof squealing breaks, and other potentiallyinflammatory auditory references to acci-dent scenes, it has also applied the rule toseemingly innocuous sounds such as the‘‘sounds of kids playing with [a] bouncingball; [the] sound of a computer turning off;[the] sound of a light switch turning off[;]TTTT [the] [s]ound of a seagull in the back-ground[;] TTT [and] [the] [s]ound of a tele-phone ringing that interrupts an attorneyspeaking in a television advertisement.’’Florida Bar, Recent Decisions on LawyerAdvertising, Dec. 15, 2006, First HarrellAff., Ex. 6, at 7. Given all of these con-cerns, Harrell abandoned the proposed ad-vertisement, even though he ‘‘still wish[es]to develop and run [it], and would do so ifnot prohibited by the advertising rules.’’Harrell Aff. ¶ 28.

Harrell’s second proposed advertisingcampaign would have been ‘‘based on thetheme of ‘choices.’ ’’ Harrell Aff. ¶ 29. Ashe described it, the campaign

would have emphasized that consumerswould benefit from the relative size andexperience of Harrell & Harrell as com-pared to other firms in the market, andthat the firm’s rates compared favorablyto the rates of other firms. The adver-tisement would have emphasized thefirm’s experience in diverse areas of per-sonal injury practice and the thousands


of cases in which it has representedconsumers.

Id. Harrell noted, however, that parts ofthis advertisement would violate the prohi-bition of Rule 4–7.2(c)(1)(I) on any commu-nication that ‘‘compares the lawyer’s ser-vices with other lawyers’ services, unlessthe comparison can be factually substanti-ated.’’ The reason is that Harrell wouldnot be able to substantiate as a matter ofobjective fact precisely how his firm’ssmall size and ‘‘experience’’ would make itsuperior to other firms.

Third, Harrell claimed that he intendedto use a number of slogans in variousadvertisements that seemed to be prohibit-ed by the rules. Thus, for example, hewanted to run advertisements containingthe phrases ‘‘I can help,’’ ‘‘we can help,’’‘‘we fight to win,’’ ‘‘we’re committed tofight TTT to right those wrongs,’’ ‘‘you needstrong legal representation,’’ and ‘‘we helpaccident victims fight for justice everyday.’’ Id. ¶ 21(d), (f). But the Bar haspreviously applied the rule against state-ments characterizing the ‘‘quality of thelawyer’s services,’’ Rule 4–7.2(c)(2), to pro-hibit even implicit statements of quality,such as ‘‘Come and experience the Nationdifference’’ and ‘‘When who you choosematters most.’’ See Harrell Aff., Ex. 12,at 14, 36. Since his slogans arguably char-acterize the quality of his services in thesame manner as the prohibited ads, Har-rell believed that these past interpreta-tions of the rule by the Bar spelled rejec-tion for his own proposed slogans.

Similarly, Harrell claimed that he want-ed to run advertisements containing state-ments such as ‘‘don’t give up’’ and ‘‘callHarrell & Harrell.’’ Id. ¶ 21(e). Yet, theBar has previously applied the rule againststatements that ‘‘promise[ ] results,’’ Rule4–7.2(c)(1)(G), to prohibit implicit or inher-ently unprovable ‘‘promises,’’ such as‘‘Don’t let an incident like this one ruinyour life’’—implicitly promising that the

lawyer can prevent that result—or ‘‘Don’tallow the American dream to turn into anightmare.’’ Harrell Aff., Ex. 12, at 28,36. Harrell’s proposed slogans again ap-peared to fall within the proscription. Ul-timately, Harrell concluded that the rulesprohibited all but a ‘‘minimalist’’ campaignconsisting of a black background, instru-mental music, and images of attorneysspeaking. Harrell Aff. ¶ 24.

Notwithstanding Harrell’s explanationsof his proposed advertisements, the Barmoved to dismiss his claims for lack ofsubject matter jurisdiction, arguing thatexcept as to his as-applied challenge to therejection of his slogan, Harrell lackedstanding because he had not first soughtan advisory opinion from the Bar on any ofthe advertisements he wished to run. Forthe same reasons, the Bar also claimedthat none of Harrell’s claims was ripe forreview, and, therefore, none was justicia-ble.

The district court ultimately denied themotion, reasoning that the lack of an advi-sory opinion did not deprive the court of ajusticiable case or controversy because theBar was free to articulate in court whetherit thought that Harrell’s proposed ads vio-lated the rules. Separately, however,while the motion to dismiss was pending,Harrell received a letter from the Bar’sEthics Counsel, Elizabeth Tarbert, inform-ing him that the Board of Governors hadtaken up the matter of his slogan suasponte and reversed the Standing Commit-tee’s judgment that the slogan ‘‘Don’t set-tle for less than you deserve’’ character-ized the quality of Harrell’s services inviolation of Rule 4–7.2(c)(2). Harrell Aff.¶ 18 & Ex. 7. As a result, when thedistrict court ultimately denied the motionto dismiss, the Bar moved a second time,arguing that the Board’s recent decisiondeprived the court of a live controversy.The district court deferred ruling on thatmotion while discovery proceeded.


In September 2008, the parties filedcross-motions for summary judgment. Ina lengthy opinion, the district court grant-ed summary judgment in the Bar’s favor,holding that Harrell’s challenge to the re-jection of his slogan was moot, that helacked standing to challenge the applica-tion of the nine aforementioned rules, thatsuch a challenge in any event was not ripe,and that, while his attack on the Bar’stwenty-day pre-filing rule was justiciable,on the merits that requirement did notviolate the First Amendment because, atleast as construed by the district court, itdid not constitute an illegal prior-restrainton speech.2 See Harrell v. The FloridaBar, No. 3:08–cv–15–J–34TEM (M.D.Fla.Mar. 30, 2009) (Howard, J.) (Order grant-ing motion for summary judgment, at 24–66) (‘‘Summary Judgment Order’’). Thedistrict court entered final judgment in theBar’s favor and Harrell filed this timelyappeal.

II.

Although the rejection of his slogan(‘‘Don’t settle for less than you deserve’’)may have spurred Harrell to file this law-suit, the heart of his case is a broad chal-lenge to nine provisions of the Bar’s adver-tising rules on First and FourteenthAmendment grounds. We begin our dis-cussion with Harrell’s Fourteenth Amend-ment void-for-vagueness challenge, a facialattack in which Harrell claims that all nine

rules are ‘‘invalid in toto[,] and thereforeincapable of any valid application.’’ Steffelv. Thompson, 415 U.S. 452, 474, 94 S.Ct.1209, 39 L.Ed.2d 505 (1974). Harrellclaims effectively that these rules specify‘‘no standard of conduct TTT at all TTTT

[and] simply ha[ve] no core.’’ Vill. of Hoff-man Estates v. Flipside, Hoffman Estates,Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186,71 L.Ed.2d 362 (1982) (emphasis and cita-tions omitted). Because the district courtrejected Harrell’s void-for-vagueness claimon standing and ripeness grounds, we limitour review to those two jurisdictional is-sues. We first take up the issue of stand-ing, which pertains to whether Harrell is aproper plaintiff to raise this void-for-vagueness challenge. See HallandaleProf’l Fire Fighters Local 2238 v. City ofHallandale, 922 F.2d 756, 760 n. 3 (11thCir.1991). We then proceed to the issue ofripeness, which concerns the timing ofHarrell’s suit. See id.

A.

[1–3] To demonstrate his standing tobring a vagueness challenge (or any otherchallenge, for that matter), Harrell mustshow that: (1) he has suffered, or immi-nently will suffer, an injury-in-fact; (2) theinjury is fairly traceable to the operationof the rules; and (3) a favorable judgmentis likely to redress the injury. Kelly v.Harris, 331 F.3d 817, 819–20 (11th Cir.2003).3 Harrell must do so with respect to

2. Except as to the one issue that the districtcourt addressed on the merits (the constitu-tionality of the Bar’s twenty-day pre-screeningrule), we treat the district court’s ruling as ifit had been made pursuant to Federal Rule ofCivil Procedure 12(b)(1) for lack of subjectmatter jurisdiction. See Sheely v. MRI Ra-diology Network, P.A., 505 F.3d 1173, 1182(11th Cir.2007) (‘‘We have repeatedly saidthat when a district court disposes of a caseon justiciability TTT grounds we will treat thedistrict court’s determination as if it was rul-ing on a motion to dismiss for lack of subjectmatter jurisdiction under [Rule] 12(b)(1), even

if the district court mistakenly has labeled itsruling a grant of summary judgment.’’).

3. Harrell and his law firm are joined in thissuit by the nonprofit organization Public Citi-zen. The district court held that Public Citi-zen lacked standing to challenge the advertis-ing rules, but the plaintiffs do not challengethat determination here, since only one partyneed have standing to satisfy the case or con-troversy requirement. Ouachita WatchLeague v. Jacobs, 463 F.3d 1163, 1170 (11thCir.2006).


each Bar rule that he challenges. SeeCAMP Legal Def. Fund, Inc. v. City ofAtlanta, 451 F.3d 1257, 1273 (11th Cir.2006); Falanga v. State Bar of Ga., 150F.3d 1333, 1335 n. 1 (11th Cir.1998).Whether Harrell has standing to challengethe Bar rules is a legal issue subject to denovo review. Region 8 Forest Serv. Tim-ber Purchasers Council v. Alcock, 993 F.2d800, 806 (11th Cir.1993).

[4, 5] Under controlling case law, weapply the injury-in-fact requirement mostloosely where First Amendment rights areinvolved, lest free speech be chilled evenbefore the law or regulation is enforced.Hallandale, 922 F.2d at 760. Thus, it iswell-established that

an actual injury can exist when theplaintiff is chilled from exercising herright to free expression or forgoes ex-pression in order to avoid enforcementconsequences. In such an instance TTT,the injury is self-censorship.

Pittman v. Cole, 267 F.3d 1269, 1283 (11thCir.2001) (citation omitted).

In challenging the Bar’s rules on vague-ness grounds, Harrell claims that theypowerfully chill his commercial speech, notbecause they necessarily prohibit the ad-vertisements that he wants to run, butbecause they give neither him nor any‘‘person of ordinary intelligence a reason-able opportunity to know what is prohibit-ed,’’ and fail to ‘‘provide explicit standardsfor those who apply them.’’ Leib v. Hills-borough County Pub. Transp. Comm’n,558 F.3d 1301, 1310 (11th Cir.2009) (quot-ing Grayned v. City of Rockford, 408 U.S.104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222(1972)). He claims essentially that therules’ broad terms—terms like ‘‘useful,’’Rule 4–7.1, cmt., ‘‘manipulative,’’ or ‘‘likely

to confuse,’’ Rules 4–7.2(c)(3) & 4–7.5(b)(1)(A)—‘‘have forced [him] to steerwide of any possible violation lest [he] beunwittingly ensnared.’’ Int’l Soc. forKrishna Consciousness of Atlanta v.Eaves, 601 F.2d 809, 820 (5th Cir.1979).4

[6] In order to substantiate thisclaimed self-censorship injury, Harrellmust establish that: (1) he seriouslywishes to advertise his services, Eaves, 601F.2d at 818; (2) such advertising wouldarguably be affected by the rules, but therules are at least arguably vague as theyapply to him, see Wilson v. Taylor, 658F.2d 1021, 1031 n. 17 (5th Cir. Unit B1981) (‘‘[O]ne may not challenge the vague-ness of rules as they might hypotheticallybe applied to others if one’s actions fallsquarely within the ambit of the prohibi-tions.’’),5 and (3) there is at least a minimalprobability that the rules will be enforced,if they are violated, Eaves, 601 F.2d at 819n. 6. If Harrell can make this thresholdshowing, he can claim an injury-in-fact tohis First Amendment rights that recurseach day and is irreparable, id. at 821,since ‘‘it is the existence, not the imposi-tion, of standardless requirements thatcauses [the] injury.’’ CAMP Legal De-fense Fund, Inc., 451 F.3d at 1275.

[7] We conclude that Harrell has satis-fied the injury-in-fact requirement with re-spect to five of the challenged rules: Rules4–7.2(c)(3), 4–7.5(b)(1)(A), 4–7.2(c)(1)(G), 4–7.2(c)(2), & 4–7.1, cmt. First, Harrell hasprovided ample proof that he intends toadvertise the services of his firm. He is apracticing personal injury lawyer in Flori-da who has advertised in a variety of me-dia for many years, Harrell Aff. ¶¶ 1–4,and he ‘‘depend[s] on advertising for the

4. In Bonner v. City of Prichard, 661 F.2d1206, 1209 (11th Cir.1981) (en banc), weadopted as binding precedent the decisions ofthe former Fifth Circuit rendered before theclose of business on September 30, 1981.

5. This Court has adopted as binding all deci-sions issued by a Unit B panel of the formerFifth Circuit. Stein v. Reynolds Sec., Inc., 667F.2d 33, 34 (11th Cir.1982).


success of [his] firm,’’ id. ¶ 31, so much sothat the firm ‘‘could not pull its televisionads entirely without facing almost certainbankruptcy,’’ id. ¶ 17. Indeed, by his ownaccount, he ‘‘intend[s] to run many moreadvertisements in the future,’’ and he av-ers that, were it not for the rules’ prohibi-tions on the use of various advertisingtechniques, he would use those techniquesin his ads, which would make them moreeffective and professional. Id. ¶¶ 24, 31.

[8] Second, Harrell has made an ade-quate threshold showing that five of therules—those prohibiting advertisementsthat are ‘‘manipulative,’’ Rules 4–7.2(c)(3)& 4–7.5(b)(1)(A), ‘‘promise[ ] results,’’ Rule4–7.2(c)(1)(G), ‘‘characteriz[e] the quality ofthe lawyer’s services,’’ Rule 4–7.2(c)(2), orprovide anything other than ‘‘useful, factu-al information,’’ Rule 4–7.1, cmt.—seem toapply to his proposed advertisements, butfail to provide meaningful standards andthus chill his speech. Harrell makes thisthreshold showing of vagueness in twoways. With respect to three of the rules—the rule prohibiting ads that provide any-thing other than ‘‘useful, factual informa-tion,’’ Rule 4–7.1, cmt., and the two rulesbanning advertisements that are ‘‘manipu-lative,’’ Rules 4–7.2(c)(3) & 4–7.5(b)(1)(A)—Harrell points to ambiguity in the lan-guage of the rules itself. Concerning theprohibition on ads that ‘‘promise[ ] re-sults,’’ Rule 4–7.2(c)(1)(G), or ‘‘character-iz[e] the quality of the lawyer’s services,’’Rule 4–7.2(c)(2), and again with respect tothe ban on ‘‘manipulative’’ ads, Harrell alsohas gathered examples of inexplicably con-tradictory advisory rulings by the Bar, andhe suggests that these contradictions re-veal a measure of arbitrariness in the rulesthemselves.

Focusing first on textual ambiguity,Harrell points to Rule 4–7.1; although therule is largely general and prefatory, itsaccompanying comment indicates that therule prohibits all but ‘‘useful, factual infor-

mation.’’ At a minimum, Harrell can cred-ibly claim to be confused in determiningwhether his proposal to advertise the fami-ly-like qualities of his firm satisfies thishighly subjective requirement. Similarly,Harrell has convincingly explained why theprohibition against ‘‘manipulative’’ radio ortelevision advertisements, see Rule 4–7.5(b)(1)(A); see also Rule 4–7.2(c)(3), rea-sonably might cause him to ‘‘steer wide ofany possible violation lest [he] be unwit-tingly ensnared,’’ Eaves, 601 F.2d at 820:almost every television advertisement em-ploys visual images or depictions that aredesigned to influence, and thereby ‘‘manip-ulate,’’ the viewer into following a particu-lar course of action, in the most unexcep-tional sense.

The rule against ‘‘manipulative’’ adver-tisements leads us to Harrell’s second cat-egory of evidence, because that rule is alsoone of several for which Harrell has shownevidence of substantially inconsistent ap-plications by the Bar, in ways potentiallysuggesting that the rules themselves maybe indeterminate and run afoul of the pro-scription against vagueness. On the sub-ject of manipulation, for example, theStanding Committee held that a close-upimage of a tiger’s eyes, Harrell Aff., Ex.12, at 79, and a claim to have the ‘‘strengthof a lion in court,’’ id., Ex. 12, at 53, weremanipulative, whereas the Board held thatan image of two panthers was not manipu-lative. Conversely, the Standing Commit-tee noted that a photograph of a manlooking out of a window, representing vic-tims of drunken driving collisions, was notmanipulative, id., Ex. 12, at 79, while theBoard held that an image of an elderlyperson looking out of a nursing home win-dow, suggesting nursing home neglect, wasmanipulative, id., ex. 16, at 5–6. The Eth-ics and Advertising Department, for itspart, said that an image of a fortune tellerwas ‘‘deceptive, misleading, or manipu-lative,’’ id., ex. 11, at 9–10, and the Stand-


ing Committee similarly held that an im-age of a wizard violated the applicablerule, id., ex. 12, at 17, but the Boardultimately concluded that the image of thewizard was not ‘‘deceptive, misleading, ormanipulative,’’ id., ex. 12, at 17.

Similarly, in applying Rule 4–7.2(c)(2)against characterizing the quality of thelawyer’s services, the Standing Committeeheld that the phrases ‘‘When who youchoose matters most’’ and ‘‘MAKE THERIGHT CHOICE!’’ violated the rule, id.,Ex. 12, at 14; Ex. 14, at 3, but that thephrase ‘‘Choosing the right person toguide you through the criminal justice sys-tem may be your most important decision.Choose wisely’’ did not, id., Ex. 15, at 3.The Standing Committee also ruled thatthe slogan ‘‘you need someone who you canturn to, for trust and compassion with thisdelicate matter’’ improperly characterizedthe quality of the lawyer’s services, id., Ex.12, at 51, even though the Standing Com-mittee’s Handbook on Lawyer Advertisingand Solicitation expressly approves of theslogan ‘‘Caring Representation in FamilyLaw Matters. I Want to Help YouThrough this Difficult Time,’’ Florida Bar,Standing Committee on Advertising,Handbook on Lawyer Advertising and So-licitation, at 4 (6th ed. Mar. 2000, revisedMay 2004), Harrell Aff., Ex. 8, at 4. Andof course, Harrell has already been subjectto arguably inconsistent applications ofthis rule: the Bar rejected his proposeduse of the slogan ‘‘Don’t settle for anythingless,’’ suggested without explanation thathe use ‘‘Don’t settle for less than youdeserve’’ instead, but later rejected thelatter slogan as an improper characteriza-tion of his services.

Next, in applying the rule against state-ments that ‘‘promise[ ] results,’’ Rule 4–7.2(c)(1)(G), the Standing Committee heldthat a claim to ‘‘fight TTT insurance compa-nies’’ impermissibly offered such a prom-ise, Harrell Aff., Ex. 12, at 31, but the

Board of Governors decided that a claim to‘‘stand up’’ to insurance companies did not,id., Ex. 12, at 26. The Standing Commit-tee also found that the phrase ‘‘let us takecare of you’’ impermissibly promised re-sults, id., Ex. 12, at 40, but wrote in itsadvertising handbook that the phrase ‘‘AnAttorney Who Cares For Your Rights!’’did not, id., Ex. 8, at 5. The Committeeheld that the slogan ‘‘People make mis-takes. I help fix them,’’ promised results,but that ‘‘People make mistakes. I helpthem,’’ did not. Id., Ex. 12, at 2. TheStanding Committee further found thatthe phrase ‘‘We’ll help you get a positiveperspective on your case and get yourdefense off on the right foot quickly’’promised results, id., Ex. 12, at 29, where-as the Board independently determinedthat there was no such promise in thephrase ‘‘If an accident has put yourdreams on hold we are here to help youget back on track,’’ id., Ex. 12, at 25.Finally, the Standing Committee ruledthat the phrase ‘‘your lawyer’s knowledgeof the law and talents in the courtroom canmean the difference between a criminalconviction and your freedom’’ violated therule, id., Ex 12., at 71, but the Board foundthat the phrase ‘‘the lawyer you choose canhelp make the difference between a sub-stantial award and a meager settlement’’did not, id., Ex. 23, at 9–10.

Having considering the text of the fiveforegoing rules—Rules 4–7.2(c)(3) & 4–7.5(b)(1)(A) (‘‘manipulative’’ ads); Rule 4–7.2(c)(1)(G) (ads that ‘‘promise[ ] results’’);Rule 4–7.2(c)(2) (ads that ‘‘characteriz[e]the quality of the lawyer’s services’’); Rule4–7.1, cmt. (ads that contain other than‘‘useful, factual information’’)—and the evi-dence presented by Harrell of their incon-sistent application, we are satisfied thatHarrell has made an adequate thresholdshowing of vagueness in the application ofthe rules to his proposed advertisements,so that he may credibly claim to have


suffered an injury-in-fact in the form ofself-censorship.

[9, 10] Third, and finally, there can beno doubt that the Bar intends to enforcethe rules if it perceives a violation. If achallenged law or rule was recently enact-ed, or if the enforcing authority is defend-ing the challenged law or rule in court, anintent to enforce the rule may be inferred.See Eaves, 601 F.2d at 821 (explaining thata court can ‘‘assume that law enforcementagencies will not disregard TTT a recentexpression of the legislature’s will’’).Here, the Bar revised the rules as recentlyas 2004, the Florida Supreme Court has onmultiple occasions upheld them, see Pape,918 So.2d at 244; Fla. Bar v. Gold, 937So.2d 652, 656 (Fla.2006), the Bar is onceagain defending them in the instant action,and the Bar has explicitly warned Harrellthat running impermissible advertisementsmay subject him to discipline, see HarrellAff. ¶¶ 13, 15. All of this is sufficientevidence of an intent to enforce the rules.

Under these circumstances, Harrell atleast has an arguable claim that the fiveaforementioned rules are sufficiently vagueand indeterminate that he must ‘‘steerwide of the danger zone,’’ even if his pro-posed speech is constitutionally protected.Universal Amusement Co. v. Vance, 587F.2d 159, 166 (5th Cir.1978). In otherwords, it is at least arguable that the rules’alleged vagueness exerts a chilling effecton Harrell’s proposed commercial speech,which is enough for Harrell to show aninjury-in-fact in the form of self-censor-ship. And, as for these five rules, Har-rell’s claims also plainly satisfy the causa-tion and redressability components of thestanding inquiry. By definition, Harrell’scognizable self-censorship injury, as wehave just described it, is arguably causedby the challenged rules’ alleged vagueness.As for the redressability prong, if the chal-lenged rules are stricken as unconstitu-tional, Harrell simply need not contend

with them any longer. Thus, we hold thatHarrell has standing to facially challengeRules 4–7.1, 4–7.2(c)(1)(G), 4–7.2(c)(2), 4–7.2(c)(3), and 4–7.5(b)(1)(A) on vaguenessgrounds.

[11] As for the remaining four rules,however, Harrell has not shown an injury-in-fact, and he therefore lacks standing tochallenge them. Specifically, he has notexplained, either textually or by example,how there is any arguable vagueness in therule prohibiting statements that are ‘‘un-substantiated in fact,’’ Rule 4–7.2(c)(1)(D);in the rule prohibiting any communicationthat ‘‘compares the lawyer’s services withother lawyers’ services, unless the compar-ison can be factually substantiated,’’ Rule4–7.2(c)(1)(I); in the rule prohibiting ‘‘anybackground sound other than instrumentalmusic,’’ Rule 4–7.5(b)(1)(C); or in the ruleagainst misleading advertisements, to theextent it prohibits a statement that,‘‘[s]tanding by itself[,] TTT implies falselythat the lawyer possesses a qualificationnot common to virtually all lawyers prac-ticing in Florida,’’ Rule 4–7.2(c)(1), cmt.Just as we will not address a ‘‘cursorycontention’’ of vagueness on the merits,Falanga, 150 F.3d at 1335 n. 3, we will notmerely assume for purposes of standingthat these phrases are sufficiently vague tocause Harrell an injury-in-fact in the formof self-censorship. Indeed, we are fairlyconfident that Harrell can derive the coremeaning from these rules, and, absentsome indication to the contrary, we holdthat Harrell lacks an injury-in-fact flowingfrom any supposed vagueness in theserules, Wilson, 132 F.3d at 1430, and there-fore lacks standing to challenge thembroadly on vagueness grounds.

B.

[12, 13] The district court also heldthat Harrell’s vagueness challenge was notripe. ‘‘The ripeness doctrine protects fed-


eral courts from engaging in speculation orwasting their resources through the reviewof potential or abstract disputes.’’ DigitalProps., Inc. v. City of Plantation, 121 F.3d586, 589 (11th Cir.1997). Again, we applythe doctrine most permissively in the FirstAmendment context. Beaulieu v. City ofAlabaster, 454 F.3d 1219, 1227–28 (11thCir.2006); Hallandale, 922 F.2d at 761 n. 5(‘‘[T]he broader the first amendment rightand, therefore, the more likely it is that agovernmental act will impinge on the firstamendment, the more likely it is that thecourts will find a justiciable case whenconfronted with a challenge to the govern-mental act.’’).

[14] To determine whether a claim isripe, we assess both the fitness of theissues for judicial decision and the hard-ship to the parties of withholding judicialreview. Coal. for the Abolition of Mari-juana Prohibition v. City of Atlanta, 219F.3d 1301, 1315 (11th Cir.2000). The fit-ness prong is typically concerned withquestions of ‘‘finality, definiteness, and theextent to which resolution of the challengedepends upon facts that may not yet besufficiently developed.’’ Ernst & Young v.Depositors Econ. Prot. Corp., 45 F.3d 530,535 (1st Cir.1995). The hardship prongasks about the costs to the complainingparty of delaying review until conditionsfor deciding the controversy are ideal. Id.

[15, 16] We fail to discern any ripenessproblems concerning Harrell’s void-for-vagueness challenge to the five rules thathe has standing to challenge. See 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). Harrell’s claimed inju-ry is immediate. As the former Fifth Cir-cuit said in binding precedent,

[a]ll vague statutes are unacceptablepartly because they encourage TTT arbi-trary and discriminatory application;similarly, vague measures regulatingfirst amendment freedoms enable low-level administrative officials to act as

censors, deciding for themselves whichexpressive activities to permit. Thevery existence of this censorial power,regardless of how or whether it is exer-cised, is unacceptable.

Eaves, 601 F.2d at 822–23 (citations andquotation marks omitted). For this rea-son, ‘‘it [is] immaterial TTT whether theparty challenging the measure even ap-plied for’’ permission to engage in the chal-lenged conduct. Id. at 823. ‘‘[S]ince thevery existence of [censorial] power is unac-ceptable, there is little reason [for a court]to forbear entertaining an anticipatorychallenge in order to allow that power tobe exercised.’’ Id. It follows that there isno need for Harrell to obtain an opinionfrom the Bar applying the rules to hisproposed advertisements before he maychallenge the rules facially on vaguenessgrounds.

There are several important reasonswhy a challenge such as the one Harrellhas mounted typically will be consideredfit for immediate review. For one, the factthat there is even a ‘‘credible threat’’ ofenforcement of vague rules—i.e., ‘‘one thatis not chimerical, imaginary[,] or specula-tive,’’ id. at 821 (citations and quotationmarks omitted)—militates in favor of hear-ing the challenge. Further,

[s]omething will be gained, but muchwill be lost if we permit the contours ofregulation to be hammered out case bycase in a series of enforcement proceed-ings, as state courts gloss the allegedlyvague terms to render them precise, oras the enforcement agencies provide[them] with a patina of less formalizedcustom and usage. While the ‘‘hammer-ing out’’ continues so do the vices ofvagueness; the appellants’ uncertaintyabout the reach of the ordinance willforce them to continue to restrict theirTTT activities.


Id. at 822 (quotation marks and citationsomitted). In other words, the relevantinstitutional considerations favor immedi-ate review of Harrell’s vagueness claims.If the Bar’s rules are indeed vague, thereis no point in allowing the Bar to issue aseries of necessarily arbitrary opinions ap-plying the rules to Harrell’s proposed ad-vertisements.

[17] We are left, then, to consider thehardship prong of ripeness. Although‘‘the relationship between the fitness andhardship prongs of the ripeness inquiry isnot entirely clear’’ and raises several ‘‘com-plex issue[s],’’ Pittman, 267 F.3d at 1280 n.8, it is readily apparent that ‘‘[t]he ‘hard-ship’ prong TTT is not an independent re-quirement divorced from the considerationof the institutional interests of the courtand agency,’’ AT&T Corp. v. FCC, 349F.3d 692, 700 (D.C.Cir.2003), and that‘‘[w]here TTT there are no significant agen-cy or judicial interests militating in favorof delay, [lack of] ‘hardship’ cannot tip thebalance against judicial review,’’ Consol.Rail Corp. v. United States, 896 F.2d 574,577 (D.C.Cir.1990) (quotation marks andcitation omitted); see also AT&T, 349 F.3dat 700 (‘‘[W]here there are no institutionalinterests favoring postponement of review,a petitioner need not satisfy the hardshipprong.’’). Accordingly, we need not con-sider whether Harrell would suffer anyhardship if we were to condition judicialreview upon his pursuit of some furtheraction, administrative or otherwise.

In sum, we hold that Harrell’s vague-ness challenges to Rules 4–7.1, 4–7.2(c)(1)(G), 4–7.2(c)(2), 4–7.2(c)(3), and 4–7.5(b)(1)(A) are ripe and therefore justicia-ble. In so doing, we express no opinion asto the merits of these claims; all we holdtoday is that Harrell has made a sufficient-ly credible showing that the rules are un-constitutionally vague on their face; ifthey are, we decline to let the Bar ‘‘ham-mer[ ] [them] out case by case’’ and there-

by ‘‘provide [them] with a patina’’ of deter-minacy. Eaves, 601 F.2d at 822 (citationomitted). The district court should hearthese claims now.

III.

[18] We turn to Harrell’s FirstAmendment claim that the nine challengedrules specifically prohibit advertising con-duct that is constitutionally protected. Al-though Harrell characterizes this challengeas a facial one as well, we are not bound byHarrell’s designation of his claims, and welook to the complaint to determine whatclaims, if any, his allegations support. Ja-cobs v. The Florida Bar, 50 F.3d 901, 905n. 17 (11th Cir.1995). We read this chal-lenge to be an as-applied one. While it is‘‘well established that in the area of free-dom of expression an overbroad regulationmay be subject to facial review and invali-dation, even though its application in thecase under consideration may be constitu-tionally unobjectionable,’’ Forsyth County,Ga. v. Nationalist Movement, 505 U.S.123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101(1992) (emphasis added), Harrell ‘‘has nev-er raised such a challenge,’’ Opening Br. at19 n. 4. Rather, because he ‘‘seek[s] tovindicate [his] own rights, the challenge isas-applied.’’ Jacobs, 50 F.3d at 906 (not-ing Supreme Court’s characterization ofchallenge as being as-applied when theplaintiff ‘‘alleged that but for the prohibi-tion, he would engage in the prohibitedbehavior’’ (citation omitted)).

Harrell’s as-applied challenge on FirstAmendment grounds embodies a constitu-tional theory that is markedly differentfrom his void-for-vagueness challenge, seeRios v. Lane, 812 F.2d 1032, 1039 (7thCir.1987) (noting that First Amendmentclaims and void-for-vagueness due processclaims are ‘‘completely distinguishablefrom [one another] and not dependentupon’’ the same considerations), and ityields a different justiciability calculus. In


particular, there are powerful ripenessconcerns that flow from Harrell’s attemptto challenge the application of the rules’apparent prohibitions to his desiredspeech, without first having sought an ad-visory opinion from the Bar. Once againaddressing the issues of standing andripeness in turn, we conclude that whileHarrell has standing to challenge all nineof the rules on First Amendment grounds,his challenge is ripe as to only one of therules.

A.

[19, 20] As with his vagueness chal-lenge, Harrell claims that the FloridaBar’s nine challenged rules cause him aninjury-in-fact by chilling his speech, specif-ically by causing him to engage in self-censorship. Although the analysis differsslightly, we again conclude that Harrellhas standing. In the context of his FirstAmendment claims, where his complaintalleges an actual prohibition rather thanthe absence of any standard at all, he mustshow that, as a result of his desired ex-pression, ‘‘(1) he was threatened with pros-ecution; (2) prosecution is likely; or (3)there is a credible threat of prosecution.’’Id. (quoting ACLU v. The Florida Bar,999 F.2d 1486, 1492 (11th Cir.1993)).Here, he suggests a credible threat ofprosecution, which in turn requires that heestablish: first, that he seriously wishes to

engage in expression that is ‘‘at least argu-ably forbidden by the pertinent law,’’ Hal-landale, 922 F.2d at 762; and second, thatthere is at least some minimal probabilitythat the challenged rules will be enforcedif violated, Eaves, 601 F.2d at 818 n. 6.6

[21, 22] Harrell has adequately shownthat he would face a credible threat ofprosecution if he engaged in the desiredspeech. First, he has shown a ‘‘definite[ ]and serious[ ]’’ desire to engage in certainforms of advertising for his law firm, seeHallandale, 922 F.2d at 762, which de-pends on advertising for its survival, Har-rell Aff. ¶ 31. And, as we explained in ourdiscussion of vagueness, Harrell’s affidavitdescribes a number of advertising cam-paigns he proposes to develop and run—including the family-themed campaign, acampaign devoted to comparing the quali-ties of Harrell & Harrell with the qualitiesof other law firms, and other campaignsthat would feature a variety of specificslogans—and he explains how the rules‘‘seem[ ] to proscribe’’ these advertise-ments. Graham v. Butterworth, 5 F.3d496, 499 (11th Cir.1993). Second, just aswith his vagueness challenge, Harrell hasshown that there is at least a minimalprobability that the Bar will enforce therules if he is deemed to have violatedthem. In short, he has demonstrated acognizable self-censorship injury for pur-poses of standing.7

6. ‘‘[T]he probability of enforcement is rele-vant only to the non-jurisdictional, ‘policyconsiderations’ underlying justiciability andnot to the existence of a case or controversy.’’Eaves, 601 F.2d at 818.

7. The district court erroneously concludedthat Harrell failed to establish any of the threeof prongs of standing. First, citing Lujan v.Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992), the districtcourt concluded that Harrell’s claimed injury-in-fact was not sufficiently concrete or immi-nent because he failed to identify a date onwhich he proposed to run his desired adver-

tisements. Yet, unlike the vague, ‘‘some day’’intentions of the wildlife enthusiasts in Lujanto return to Egypt and observe a Nile croco-dile, id. at 563–64, 112 S.Ct. 2130, Harrell’sintense professional dependence on advertis-ing makes it very likely that he will attempt torun advertisements of the kind he describes inhis declaration. See Eaves, 601 F.2d at 819.Second, the district court said that Harrellhad not established causation because he hadnever sought the Bar’s opinion on his pro-posed ads, and thus did not know whether theBar would actually interpret the rules as heexpected. Yet Harrell did demonstrate howthe challenged rules seem to prohibit the ads


B.

The more difficult hurdle for Harrell’sas-applied claims is ripeness. The Barargues, and the district court agreed, thateven if Harrell can demonstrate standing,his claims are still nonjusticiable—and spe-cifically not ripe—because he has neversought an advisory opinion from the Bar.After assessing the fitness of the issues forjudicial decision and the hardship to Har-rell of withholding judicial review, Coal. forthe Abolition of Marijuana Prohibition,219 F.3d at 1315, we agree, with one ex-ception, that Harrell’s claims are not ripe.

A plaintiff who demonstrates standingby showing that he faces a ‘‘credible threatof prosecution’’ if he engages in certainspeech often will succeed in showing thathis claims are ripe as well, since the lawgenerally will not force a choice betweenspeech and sanction. Babbitt v. UnitedFarm Workers Nat’l Union, 442 U.S. 289,298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).In the present case, however, although theappearance that the rules would prohibitHarrell’s desired advertisements unques-tionably has some chilling effect—one suf-ficient to constitute an injury-in-fact forpurposes of standing—the Florida Bar un-deniably provides an advisory opinion pro-cess, so that an attorney like Harrell isactually ‘‘in no danger of being disciplinedwithout having an opportunity to deter-mine in advance whether [his] proposedadvertisements are lawful.’’ Felmeister v.Office of Attorney Ethics, 856 F.2d 529,

538 (3d Cir.1988). Indeed, a favorable de-termination by the Ethics and AdvertisingDepartment, the Standing Committee, orthe Board of Governors generally acts as asafe harbor against discipline on the basisof an approved advertisement. And, if‘‘[Harrell’s] proposed advertisements[were to] meet with the [Bar’s] approval,TTT there would indeed be no case orcontroversy to adjudicate.’’ Id. at 537. Inother words, although Harrell is a ‘‘party[who] can appropriately bring suit,’’ thefact that an opinion from the Bar couldlend significantly more concreteness to hisas-applied claims, while allowing the Barto perform its interpretive role, fairly rais-es issues regarding the ‘‘timing of thesuit.’’ Elend v. Basham, 471 F.3d 1199,1205 (11th Cir.2006) (explaining distinctionbetween standing, which goes to identity ofparties, and ripeness, which goes to tim-ing).

[23] Given the distinct possibility insuch situations that agency review willeliminate the need for judicial review, andgiven the role of the ripeness doctrine in‘‘protect[ing] TTT agencies from judicial in-terference until an administrative decisionhas been formalized and its effects felt in aconcrete way by the challenging parties,’’Pittman, 267 F.3d at 1278 (quoting AbbottLabs. v. Gardner, 387 U.S. 136, 148–49, 87S.Ct. 1507, 18 L.Ed.2d 681 (1967) (footnoteomitted)); see also Ohio Forestry Ass’n,Inc. v. Sierra Club, 523 U.S. 726, 732–33,118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), we

he wishes to run, and for purposes of stand-ing, we needn’t know for certain how therules will be applied to fairly conclude thatthey chill Harrell’s speech. Finally, the dis-trict court held that Harrell’s claimed injuriesappeared not to be redressable because Har-rell had ‘‘failed to demonstrate that [his] pro-posed advertisements complied with all of theother advertising rules, which have not beenchallenged in this action.’’ Summary Judg-ment Order, at 50. Redressability is estab-lished, however, when a favorable decision

‘‘would amount to a significant increase inthe likelihood that the plaintiff would obtainrelief that directly redresses the injury suf-fered,’’ Utah v. Evans, 536 U.S. 452, 464, 122S.Ct. 2191, 153 L.Ed.2d 453 (2002), and here,it is likely that if the challenged rules are heldunconstitutional, Harrell will be allowed torun many or all of the advertising campaignshe has outlined in his affidavit, at least in aform far closer to what he envisions than the‘‘minimalist’’ campaign he has run thus far.Harrell Aff. ¶ 24.


may require that First Amendment plain-tiffs seek determinations with varying de-grees of finality from agencies whose rulesor decisions they seek to challenge on anas-applied basis. See, e.g., Nat’l Adver.Co. v. City of Miami, 402 F.3d 1335, 1339(11th Cir.2005); Pittman, 267 F.3d at1277–78; Digital Props., Inc. v. City ofPlantation, 121 F.3d 586, 590–91 (11th Cir.1997); Felmeister, 856 F.2d at 531. Thisrequirement, which goes to the question offitness for judicial review, is not a form ofadministrative exhaustion, but rather a re-quirement that ‘‘an administrative actionmust be final before it is judicially review-able.’’ Greenbriar, Ltd. v. City of Alabast-er, 881 F.2d 1570, 1574 n. 8 (11th Cir.1989)(quoting Williamson County Reg’l Plan-ning Comm’n v. Hamilton Bank of John-son City, 473 U.S. 172, 192, 105 S.Ct. 3108,87 L.Ed.2d 126 (1985)).

[24] We have recognized an exceptionto this requirement in cases where there isnothing to be gained from an agency’sinterpretation of a rule because the rule’sapplication is clear on its face. Thus, inJacobs v. The Florida Bar, we explainedthat where, under the challenged rules,‘‘advertising methodologies are prohibitedin their entirety, the court would not bene-fit from [the plaintiffs’] production of’’ anadvertisement employing that methodolo-gy. 50 F.3d 901, 906 n. 18 (11th Cir.1995).‘‘[S]uch an advertisement violates the rulesregardless of the content precisely becauseof the method through which the messageis communicated.’’ Id. Since few, if any,institutional interests would be served byasking an agency to interpret a rule whoseapplication is utterly clear, the absence ofan agency opinion ordinarily will not affectwhether a challenge to such a rule is fit forimmediate judicial review.

Applying these general principles, wedivide Harrell’s First Amendment as-ap-plied claims into two general categories toassess their fitness for review (and, ulti-

mately, their ripeness): those claims thatchallenge a rule whose application is cate-gorical and thus clear; and those thatchallenge a rule whose application leavessubstantial room for reasonable interpreta-tion by the Florida Bar.

[25] We can discern only one rule thatfalls into the first category. That is therule prohibiting ‘‘any background soundother than instrumental music.’’ Rule 4–7.5(b)(1)(C). If there is any ambiguity inwhat constitutes a ‘‘background sound’’ or‘‘instrumental music,’’ that ambiguity is deminimis. Plainly, the district court wouldnot benefit from Harrell’s production of anotherwise permissible advertisement thatcontained the sounds of his mastiff dogs orhis law firm’s gym equipment, or from anopinion of the Bar inevitably holding thatthose sounds constitute backgroundsounds and not instrumental music, andare therefore impermissible. Thus, weconsider Harrell’s as-applied First Amend-ment challenge to this rule fit for review.And, because ‘‘there are no significantagency or judicial interests militating infavor of delay,’’ we need not considerwhether requiring Harrell to pursue any ofthe several available options for adminis-trative review would constitute a hardship.Consol. Rail Corp., 896 F.2d at 577.

[26] The remaining eight rules, howev-er, are not so clear in their application asto obviate the need for interpretation bythe Bar. Indeed, Harrell’s case for vague-ness undermines any such suggestion, andthe lack of any opinion from the Bar raisesserious fitness concerns. In assessing thefitness of these remaining claims, we areguided by our decision in Pittman v. Cole,267 F.3d 1269 (11th Cir.2001), where weaddressed the ripeness of claims by Ala-bama state judicial candidates that theState Bar of Alabama’s Canons of JudicialEthics violated their First Amendmentrights by preventing them from complet-


ing a judicial questionnaire. Concernedinitially that the Canons might apply to thequestionnaire, the plaintiffs obtained aninformal opinion from the State Bar, inwhich the Bar advised them that respond-ing to some of the questions would violatethe Canons. Id. at 1274–75.

The plaintiffs did not, however, availthemselves of the Bar’s administrative pro-cedure for obtaining a formal, official advi-sory opinion from the Disciplinary Com-mission, which was the only arm of the Barwhose decisions on ethical matters werebinding for enforcement purposes. Id. at1275. Instead, the plaintiffs filed an actionin federal court. A panel of this Courtheld that because the plaintiffs had failedto utilize the available formal review proce-dure and obtain a final opinion concerningthe Bar’s policy on the questionnaire, theywere impermissibly ‘‘ask[ing] the districtcourt and now this Court to speculate,without any evidentiary basis, that theBar’s Disciplinary Commission wouldagree with the general counsel’s [informal]opinion concerning the application of theCanons of Judicial Ethics to candidatesresponding to the TTT questionnaire.’’ Id.at 1280.

In reaching that conclusion, the Courtexplained that although the issue of wheth-er the rules prohibited certain conduct—specifically, answering the questionnaire—appeared to be a purely legal question, ‘‘animportant factual issue [had] initially [to]be resolved[,] [namely] what the actualpolicy of the Bar [was] concerning thequestionnaire.’’ Id. at 1278. Because aninformal opinion did ‘‘not establish theBar’s policy’’ when higher levels of admin-istrative review were available, id. at 1278–79, ‘‘the unresolved, fundamental factualissue of what the Bar’s official position[was] in regard to the questionnaire coun-sel[ed] strongly against finding ripeness,’’id. at 1279. Relatedly, we explained thatallowing the Bar to ‘‘crystallize its policies

without undue interference from the feder-al courts is a good thing,’’ which ‘‘alsoweigh[ed] strongly in favor of the conclu-sion that the plaintiffs’ claims against theBar [were] premature.’’ Id.

Pittman teaches that where the applica-tion of certain challenged rules is less thanobvious, and the plaintiff has a readymeans of determining how they will beapplied, there are ‘‘strong interests militat-ing in favor of postponement.’’ AT&TCorp. v. FCC, 349 F.3d 692, 700 (D.C.Cir.2003). The reason is simple: it wouldnecessarily be speculative to assume thatthe Bar actually will apply the rules asHarrell believes. It is true that Harrellhas attempted to reduce the degree ofspeculation by providing evidence of howthe Bar has previously interpreted severalof the rules in the context of similar adver-tisements. Yet, helpful as this informationmay be, it is no substitute for an opinionfrom the Bar, since the challenged rulesby and large do not contain categoricalprohibitions that would obviate the needfor the Bar to interpret them. Thus, forexample, although Harrell’s family-themedadvertisements arguably may violate theprohibition on all but ‘‘useful, factual infor-mation,’’ Rule 4–7.1, cmt., the ban onstatements ‘‘characterizing the quality ofthe lawyer’s services,’’ Rule 4–7.2(c)(2), orthe rule against ‘‘visual or verbal TTT de-pictions TTT that are TTT manipulative,’’Rule 4–7.2(c)(3), it is altogether conceiva-ble that the Bar would not interpret theserules to apply to Harrell’s advertisements.

As in Pittman, there remains a substan-tial measure of uncertainty about the ‘‘fun-damental factual issue’’ of how the Bar willapply the rules to the proposed advertise-ments. Pittman, 267 F.3d at 1279. Atthe same time, and equally important, theFlorida Bar, through the Ethics and Ad-vertising Department, has provided a rela-tively ‘‘expeditious means of testing thereach of the rule through an advisory opin-


ion process,’’ Felmeister, 856 F.2d at 531,for which even a script or outline of aproposed advertisement will suffice. SeeRule 4–7.7(a)(1)(B). Harrell, however, hasnot even submitted a bare script of hisproposed advertisements to the Ethics andAdvertising Department, ‘‘and hence ha[s]not availed [himself] of a relatively simpleway of determining whether [his] ads runafoul of the rule[s].’’ Felmeister, 856 F.2dat 531. Quite simply, his as-applied claimsraise serious fitness concerns.8

Turning to the related question of hard-ship, Harrell has not given us any substan-tial reason to believe that submitting abare script or outline of the advertise-ments he proposes would constitute ahardship. While he asserts in his replybrief, at the highest order of abstraction,that ‘‘even the process of developing ideas,concepts, and scripts is expensive,’’ Reply

Br. at 11, an unsupported general asser-tion in a brief provides precious little basisfor finding hardship. Harrell also urgesthat an opinion based on a script wouldadd nothing to the ripeness inquiry be-cause it would not be conclusive and bind-ing on the Bar. We are unpersuaded.Such an opinion obviously would provide aconcrete indication of whether the Bar islikely to approve or reject Harrell’s pro-posed advertisements.9 Given the seriousfitness concerns raised by Harrell’s claims,we think that at a bare minimum, Harrellhad an obligation to obtain an opinion‘‘from someone ‘with the knowledge andauthority to speak for the [Bar].’ ’’ See Am.Charities, 221 F.3d at 1215 (citation omit-ted). His unexcused failure to do someans that his challenges to all but Rule4–7.5(b)(1)(C) concerning backgroundnoise are not now ripe for judicial review.10

8. For purposes of ripeness, the relevance ofan opinion from the Bar differs when weconsider Harrell’s as-applied challenge, rath-er than the facial one. As for his facial dueprocess challenge, Harrell has shown that fiverules are at least arguably vague, and if he isright—if the rules actually ‘‘ha[ve] no core,’’Village of Hoffman Estates, 455 U.S. at 495 n.7, 102 S.Ct. 1186—there is no point in allow-ing the Bar to issue a series of necessarilyarbitrary opinions applying them to Harrell’sproposed advertisements. By contrast, Har-rell argues through his First Amendmentclaim that the rules affirmatively prohibit cer-tain conduct. In that context, it is very im-portant to know whether the rules really doprohibit the desired conduct. Thus, this typeof as-applied challenge is most likely to beripe if the rules clearly apply on their face, orif the enforcing authority—here, the Bar—hastold us that they apply.

Ultimately, we recognize that there is ameasure of tension between Harrell’s twoconstitutional theories—one claiming that therules lack a meaningful standard, the otherclaiming that they plainly and specificallyprohibit what he wishes to do. Harrell isentitled to pursue both of these theories, buthe is obligated to establish the justiciability ofeach of his claims.

9. To this last point, Harrell responds thatmany appeals to the Bar’s higher-level reviewbodies result in reversal, indicating that anopinion by one of the Bar’s inferior bodieswould be unreliable to the point of useless-ness. Harrell notes, for example, that nearlytwenty percent of appeals to the StandingCommittee, and nearly fifty percent of appealsto the Board of Governors, result in at least apartial reversal. Reply Br. at 17 (citing Tar-bert Aff. ¶¶ 5, 9 & 10). Harrell has not men-tioned, however, that the Ethics and Advertis-ing Department has issued over fifty thousandopinions since 1994, and that only three per-cent of those were appealed at all. TarbertAff. ¶ 9. Similarly, only slightly more thanone-half of one percent of all opinions issuedby the Ethics and Advertising Departmentwere appealed to the Board. Id. ¶ 10. Giventhe various possible explanation for these sta-tistics—it may be, for example, that only argu-ably incorrect opinions are appealed at all—we are thoroughly unconvinced that the ad-ministrative reversal rate demonstrates any‘‘inherent unreliability [in] the Bar’s own re-view process.’’ Reply Br. at 17.

10. We express no opinion about whether, tomake his claims ripe, Harrell must submit afinalized advertisement to the Bar for reviewor take an appeal of any adverse decision as


Accordingly, the district court properly re-jected them as nonjusticiable.

IV.

The final justiciability question raised bythis appeal concerns Harrell’s specificchallenge to the Bar’s rejection of his slo-gan ‘‘Don’t settle for less than you de-serve.’’ The Bar claims that the challengehas become moot because the Board ofGovernors has now declared that the slo-gan is permissible, at least as used in theadvertisements that Harrell originally sub-mitted for review. On the other hand,Harrell says that the Board cannot betrusted to maintain its new-found solici-tude for his slogan because, among otherthings, the Board failed to act until afterthe lawsuit was filed, made its decision in asecretive and irregular manner withoutever disclosing its reasoning, and has givenno assurances in the instant proceedingsthat it will not later change its mind. TheBar, for its part, characterizes the Board’sactions as an honest and unremarkableeffort to correct an erroneous judgment bythe Standing Committee, and says that asa governmental actor, it is entitled to relyon a presumption that it will not resumethe challenged conduct.

[27–29] ‘‘[A] federal court has no au-thority ‘to give opinions upon moot ques-tions or abstract propositions, or to declareprinciples or rules of law which cannotaffect the matter in issue in the case be-fore it.’ ’’ Church of Scientology of Cal. v.United States, 506 U.S. 9, 12, 113 S.Ct.447, 121 L.Ed.2d 313 (1992) (quoting Millsv. Green, 159 U.S. 651, 653, 16 S.Ct. 132,40 L.Ed. 293 (1895)). By the same token,however, ‘‘[i]t has long been the rule that

‘voluntary cessation of allegedly illegalconduct does not deprive the tribunal ofpower to hear and determine the case, i.e.,does not make the case moot.’ ’’ Nat’lAdver. Co. v. City of Miami, 402 F.3d1329, 1333 (11th Cir.2005); see alsoFriends of the Earth, Inc. v. LaidlawEnvtl. Servs. (TOC), Inc., 528 U.S. 167,189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).Since the defendant is ‘‘free to return tohis old ways,’’ United States v. W.T. GrantCo., 345 U.S. 629, 632, 73 S.Ct. 894, 97L.Ed. 1303 (1953), he bears a ‘‘heavy bur-den’’ of demonstrating that his cessation ofthe challenged conduct renders the contro-versy moot, Laidlaw, 528 U.S. at 189, 120S.Ct. 693 (citation omitted). That burdenwill have been borne only if:

(1) it can be said with assurance thatthere is no reasonable expectation TTT

that the alleged violation will recur, and(2) interim relief or events have com-pletely and irrevocably eradicated theeffects of the alleged violation.

Los Angeles County v. Davis, 440 U.S.625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642(1979) (citations omitted). In other words,when a party abandons a challenged prac-tice freely, the case will be moot only if itis ‘‘absolutely clear that the allegedlywrongful behavior could not reasonably beexpected to recur.’’ Alabama v. U.S.Army Corps of Eng’rs, 424 F.3d 1117, 1131(11th Cir.2005) (emphasis added) (quotingLaidlaw, 528 U.S. at 189, 120 S.Ct. 693).

[30, 31] ‘‘[I]n general, the repeal of achallenged statute is one of those eventsthat makes it absolutely clear that theallegedly wrongful behavior TTT could notreasonably be expected to recur.’’ Coral

far as the Board of Governors. We recognizethat to produce a finalized television adver-tisement might cost Harrell tens of thousandsof dollars, and that appealing an adverse rul-ing to the Board might take upwards of ayear—both of which might qualify as the type

of ‘‘practical’’ hardship that is relevant to theripeness inquiry. Pittman, 267 F.3d at 1281.We do not weigh that hardship in the balancetoday, however, because the only question weface is whether Harrell’s claims are ripe aspresently presented.


Springs Street Sys., Inc. v. City of Sun-rise, 371 F.3d 1320, 1331 n. 9 (11th Cir.2004) (citation and quotation marks omit-ted). Even short of so weighty a legisla-tive act, we have applied a ‘‘rebuttablepresumption’’ in favor of governmental ac-tors, so that ‘‘a challenge to a governmentpolicy that has been unambiguously ter-minated will be moot in the absence ofsome reasonable basis to believe that thepolicy will be reinstated if the suit is termi-nated.’’ Troiano v. Supervisor of Elec-tions in Palm Beach County, 382 F.3d1276, 1283–85 (11th Cir.2004); see alsoCoral Springs, 371 F.3d at 1328–29(‘‘[G]overnmental entities and officials havebeen given considerably more leeway thanprivate parties in the presumption thatthey are unlikely to resume illegal activi-ties.’’); Ragsdale v. Turnock, 841 F.2d1358, 1365 (7th Cir.1988) (‘‘[C]essation ofthe allegedly illegal conduct by govern-ment officials has been treated with moresolicitude by the courts than similar actionby private parties.’’).

[32] Conversely, where the circum-stances surrounding the cessation suggestthat the defendant is ‘‘attempting to ma-nipulate the [c]ourt’s jurisdiction to insu-late a favorable decision from review,’’ Cityof Erie v. Pap’s A.M., 529 U.S. 277, 288,120 S.Ct. 1382, 146 L.Ed.2d 265 (2000),courts will not deem a controversy moot.Nat’l Adver. Co., 402 F.3d at 1333 (‘‘[V]ol-untary cessation of offensive conduct willonly moot litigation if it is clear that thedefendant has not changed course simplyto deprive the court of jurisdiction.’’).More generally, the ‘‘timing and content’’of a voluntary decision to cease a chal-lenged activity are critical in determiningthe motive for the cessation and therefore‘‘whether there is [any] reasonable expec-tation TTT that the alleged violation willrecur.’’ Burns v. PA Dep’t of Corr., 544F.3d 279, 284 (3d Cir.2008) (internal cita-tion and quotation marks omitted).

[33, 34] As for timing, a defendant’scessation before receiving notice of a legalchallenge weighs in favor of mootness,Troiano, 382 F.3d at 1285, while cessationthat occurs ‘‘late in the game’’ will make acourt ‘‘more skeptical of voluntary changesthat have been made.’’ Burns, 544 F.3d at284. With respect to content, we look fora well-reasoned justification for the cessa-tion as evidence that the ceasing partyintends to hold steady in its revised (andpresumably unobjectionable) course. SeeTroiano, 382 F.3d at 1285 (finding chal-lenge moot where governmental defendantceased challenged behavior on a ‘‘well rea-soned’’ basis); Christian Coal. of Ala. v.Cole, 355 F.3d 1288, 1292 (11th Cir.2004)(holding that challenge to application ofstate judicial canons to certain conduct wasmoot where governmental defendant rep-resented to court that it would not filecharges against the plaintiffs on the basisof recent Supreme Court precedent);Ragsdale, 841 F.2d at 1365–66 (finding onechallenge moot where governmental defen-dant voluntarily ceased conduct because‘‘enforcement [was] barred by clear Su-preme Court precedent,’’ but finding sec-ond challenge not moot because cessationwas based on district court decision thatdid not squarely enjoin the challengedpractice).

[35] Similarly, the timing and contentof the decision are also relevant in assess-ing whether the defendant’s ‘‘termination’’of the challenged conduct is sufficiently‘‘unambiguous’’ to warrant application ofthe Troiano presumption in favor of gov-ernmental entities. Cf. Rothe Dev. Corp.v. Dep’t of Def., 413 F.3d 1327, 1333–34(Fed.Cir.2005) (holding that Troiano pre-sumption ‘‘d[id] not apply’’ because, interalia, ‘‘the government ha[d] not providedsufficient evidence that the allegedly of-fending conduct w[ould] not recur’’).Short of repealing a statute, if a govern-


mental entity decides in a clandestine orirregular manner to cease a challengedbehavior, it can hardly be said that its‘‘termination’’ of the behavior is unambigu-ous.

[36] Applying these principles, weagree with Harrell that his challenge tothe Bar’s rejection of his slogan is notmoot. While we are generally disposed tocredit the Bar’s characterization of theBoard’s actions as a straightforward inter-vention in the advisory opinion process tocorrect several incorrect and possibly self-contradictory opinions of the Bar’s inferiorreview bodies, we cannot do so here be-cause the record neither yields absolutecertainty that the challenged conduct haspermanently ceased, nor, when one consid-ers the ‘‘timing and content’’ of the Board’sdecision, supports the conclusion that theBoard’s policy was ‘‘unambiguously termi-nated,’’ as required to invoke the govern-mental actor presumption.

First of all, the Board acted in secrecy,meeting behind closed doors and, notably,failing to disclose any basis for its decision.As a result, we have no idea whether theBoard’s decision was ‘‘well-reasoned’’ andtherefore likely to endure. Cf. Troiano,382 F.3d at 1285; Cole, 355 F.3d at 1292–93; Ragsdale, 841 F.2d at 1365–66. Infact, the Board’s decision might reflect arange of possible judgments, and some ofthem would not warrant a finding of moot-ness. In ACLU v. The Florida Bar, 999F.2d 1486 (11th Cir.1993), for example, weapplied the voluntary cessation exceptionto a plaintiff’s challenge to certain of theBar’s rules even though the Bar had ‘‘ac-quiesced in [the plaintiff’s] position.’’ Id.at 1490. We did so because, although theBar had agreed that it would not enforcethe rule against the plaintiff in that partic-ular instance, it still maintained that thechallenged rule was constitutional and thatthe plaintiff’s conduct fell within it. SeeACLU, 999 F.2d at 1494–95. In this case,

the Bar’s opaque decision fairly leavesopen the possibility that, just as in ACLU,the Board agrees with the Standing Com-mittee but has decided that it will notenforce the rule against Harrell in thiscase. Id.; see also Graham, 5 F.3d at 500(interpreting ACLU, 999 F.2d at 1494).Such a course by the Bar would not sufficeto moot the instant controversy.

In fact, the circumstances here raise asubstantial possibility that ‘‘the defendanthas TTT changed course simply to deprivethe court of jurisdiction,’’ which itself pre-vents us from finding the controversymoot. Nat’l Adver. Co., 402 F.3d at 1333.The record reveals that the Board took upthe matter of Harrell’s advertisementsonly at the urging of the Bar’s counselafter this litigation had commenced, seeHr’g Tr. 85, Jan. 6, 2009, and that in doingso, it may have departed from its ownprocedures. Specifically, the Bar’s ownrules provide for review by the Board inonly two instances: first, where an attor-ney objects to the Standing Committee’sdecision; and second, upon the Board’sown initiative if the Board ‘‘determinesthat the application of the attorney adver-tising rules to a particular set of facts islikely to be of widespread interest or un-usual importance to a significant numberof Florida Bar members.’’ Florida BarProcedures for Issuing Advisory OpinionsRelating to Lawyer Advertising or Solici-tation § 2(c)(2). Harrell did not seek re-view by the Board, and the Bar has notsuggested that the application of Rule 4–7.2(c)(2) to Harrell’s particular slogan,among many presumably similar permuta-tions, would be ‘‘of widespread interest orunusual importance’’ to a significant num-ber of Florida Bar members.

For the same reasons, we are unable tosay that the Board, through its decision,‘‘unambiguously terminated’’ the chal-lenged application of Rule 4–7.2(c)(2) to


Harrell’s slogan, as required to invoke thepresumption we identified in Troiano.Perhaps the Board believes with the firm-est conviction that the Standing Commit-tee’s decision was wrong, but then again,perhaps the Board actually agrees with theStanding Committee and has merely decid-ed ‘‘not [to] enforce [the Rule] against[Harrell] in this case.’’ Graham, 5 F.3d at500 (interpreting ACLU, 999 F.2d at 1494).In fact, the Board’s ‘‘termination’’ of thestanding committee’s decision is very muchclouded by ambiguity. As a result, wecannot apply the governmental presump-tion recognized in Troiano. In otherwords, the Bar has not borne its heavyburden of showing that it is ‘‘absolutelyclear that the allegedly wrongful behaviorcould not reasonably be expected to re-cur.’’ Alabama v. Corps of Eng’rs, 424F.3d at 1131 (emphasis added) (quotingLaidlaw, 528 U.S. at 189, 120 S.Ct. 693).Thus, we hold that Harrell’s challenge tothe rejection of his slogan ‘‘Don’t settle forless than you deserve’’ is not moot.

V.

[37] Harrell’s final challenge—and theonly one that we have occasion to reviewon the merits—is to the Bar’s requirementthat a lawyer submit any television orradio advertisement for review at leasttwenty days before its first planned dis-semination or airing date, giving the Barapproximately fifteen days in which to re-view the ad and five days for mail transittime. See Rule 4–7.7(a)(1)(A). The rulestates that during the fifteen-day reviewperiod, the Bar ‘‘shall’’ review the adver-tisement and notify the submitting lawyerwhether it complies with the advertisingrules, Rule 4–7.7(a)(1)(C), and that thelawyer may disseminate the advertisement‘‘upon receipt of notification by The Flori-da Bar that the advertisement complieswith subchapter 4–7.’’ Rule 4–7.7(a)(1)(E).

Harrell argued in the district court thatthe rule was an unconstitutional prior re-

straint under the First Amendment. Thedistrict court considered the claim justicia-ble, and in defending the rule on the mer-its, the Bar urged a construction of therule under which a lawyer may dissemi-nate a proposed advertisement upon re-ceipt of any opinion by the Bar, ratherthan, as the text of the rule might suggest,only upon receipt of a favorable opinion.The district court accepted this narrowingconstruction, and, having thus construedthe rule as a ‘‘pre-filing’’ rather than a‘‘pre-clearance’’ requirement, it rejectedHarrell’s challenge to the rule as a priorrestraint.

In this appeal, Harrell accepts the dis-trict court’s construction of Rule 4–7.7(a)(1); he assumes, as do we, that theBar is bound by its representations in thedistrict court and will not attempt to en-force the rule as a prior restraint onspeech. Nevertheless, Harrell argues thatthe pre-filing rule, even if not a priorrestraint, is an imposition on commercialspeech and, therefore, must be analyzedunder the general test laid out in CentralHudson Gas & Electric Corp. v. PublicService Commission of New York, 447U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341(1980). We agree with Harrell that a Cen-tral Hudson analysis is required, but westill can see no constitutional violation.

[38] ‘‘Commercial speech enjoys a lim-ited measure of protection, commensuratewith its subordinate position in the scale ofFirst Amendment values, and is subject tomodes of regulation that might be imper-missible in the realm of noncommercialexpression.’’ Florida Bar v. Went For It,Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132L.Ed.2d 541 (1995) (quotation marks,brackets, and citations omitted). Indeed,

[s]ince advertising is the Sine qua non ofcommercial profits, there is little likeli-hood of its being chilled by proper regu-lation and forgone entirely. Attributes


such as these, the greater objectivityand hardiness of commercial speech,may make it less necessary to tolerateinaccurate statements for fear of silenc-ing the speaker[,] TTT [and] may alsomake inapplicable the prohibitionagainst prior restraints.

Va. State Bd. of Pharmacy v. Va. CitizensConsumer Council, Inc., 425 U.S. 748, 771n. 24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

As a result, the Supreme Court hasstrongly suggested that the type of manda-tory pre-distribution review of commercialspeech imposed by Rule 4–7.7(a)(1) is con-stitutional. Thus, for example, the Courtnoted in Central Hudson itself that be-cause traditional prior restraint principlesmay not fully apply to commercial speech,a state may require ‘‘a system of preview-ing advertising campaigns to insure thatthey will not defeat’’ state restrictions.Cent. Hudson, 447 U.S. at 571 n. 13, 100S.Ct. 2343. Similarly, in striking down a‘‘total ban’’ on direct-mail solicitations bylawyers, the Supreme Court opined that

[t]he State can regulate TTT abuses andminimize mistakes through far less re-strictive and more precise means, themost obvious of which is to require thelawyer to file any solicitation letter witha state agency, giving the State ampleopportunity to supervise mailings andpenalize actual abuses.

Shapero v. Ky. Bar Ass’n, 486 U.S. 466,476, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988)(internal citations omitted); see also Fel-meister, 856 F.2d at 536 (recognizing Su-preme Court’s ‘‘repeated[ ] suggest[ions]that in the area of commercial speech,prescreening or prepublication review ofadvertisements may be constitutionallysound’’).

If these unequivocal dicta in CentralHudson and Shapero were binding on us,it would follow a fortiori that the lessintrusive ‘‘pre-filing’’ system imposed byRule 4–7(a)(1)(A) is permissible. Although

the aforementioned dicta do not alonemake Rule 4–7.7(a)(1) constitutional, it isno surprise that the rule passes musterunder Central Hudson.

[39] Under the ‘‘intermediate scrutiny’’standard governing the regulation of non-deceptive commercial speech set forth inCentral Hudson, we ask whether an impo-sition on commercial speech (1) promotes asubstantial governmental interest; (2) di-rectly advances the interest asserted; and(3) is not more extensive than necessary toserve that interest. Cent. Hudson, 447U.S. at 564, 100 S.Ct. 2343; see also Zau-derer v. Office of Disciplinary Counsel,471 U.S. 626, 638, 105 S.Ct. 2265, 85L.Ed.2d 652 (1985).

[40] ‘‘Unlike rational basis review, theCentral Hudson standard does not permitus to supplant the precise interests putforward by the State with other supposi-tions.’’ Went For It, 515 U.S. at 624, 115S.Ct. 2371 (quoting Edenfield v. Fane, 507U.S. 761, 768, 113 S.Ct. 1792, 123 L.Ed.2d543 (1993)). The Florida Bar asserts anumber of interests in regulating attorneyadvertisement that the Supreme Court hasrecognized as ‘‘substantial’’ for purposes ofCentral Hudson. For one, the Bar has a‘‘paramount TTT objective of curbing activi-ties that ‘negatively affec[t] the adminis-tration of justice.’ ’’ Id. (quoting In re1990 Amendments, 571 So.2d at 455).Specifically, the Bar has an interest inpreventing ‘‘reputational harm to the pro-fession,’’ id. at 630, 115 S.Ct. 2371, and in‘‘preserv[ing] [its] integrity,’’ id. at 624(quoting McHenry v. The Florida Bar, 21F.3d 1038, 1043 (11th Cir.1994)). Thus, inWent For It, the Supreme Court recog-nized the Bar’s interest in maintaining arule designed to ‘‘protect the flagging rep-utations of Florida lawyers by preventingthem from engaging in conduct that TTT isuniversally regarded as deplorable and be-neath common decency.’’ Id. at 625, 115


S.Ct. 2371 (quotation marks and citationomitted). Beyond these general interestsof the Bar in regulating attorney advertis-ing, the Supreme Court has recognizedthat ‘‘the special problems of advertisingon the electronic broadcast media will war-rant special consideration.’’ Bates v. StateBar of Ariz., 433 U.S. 350, 384, 97 S.Ct.2691, 53 L.Ed.2d 810 (1977). See also FCCv. Pacifica Found., 438 U.S. 726, 748, 98S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (‘‘[T]hebroadcast media have established auniquely pervasive presence in the lives ofall Americans.’’).

[41] Under the second prong of Cen-tral Hudson, the Bar must ‘‘demonstratethat the challenged regulation advances[its asserted] interest[s] in a direct andmaterial way.’’ Went For It, 515 U.S. at625–26, 115 S.Ct. 2371 (quotation marksand citation omitted). ‘‘That burden TTT isnot satisfied by mere speculation or con-jecture; rather, a governmental bodyseeking to sustain a restriction on commer-cial speech must demonstrate that theTTTT rule at issue TTT targets a concrete,nonspeculative harm.’’ Id. at 626, 629, 115S.Ct. 2371. We have no difficulty conclud-ing that Rule 4–7.7(a)(1), as construed andlimited by the district court, directly ad-vances the Bar’s substantial interests incurbing practices that negatively impactthe administration of justice, protect thepublic from abusive practices, and pre-serve the reputation and integrity of thelegal profession.

Under the Florida Bar’s previous com-pliance regime, a lawyer was not required

to submit a television or radio advertise-ment for review until he filed it. See In reAmendments to the Rules Regulating TheFla. Bar, 971 So.2d 763, 784 (Fla.2007).But a review of advertisements filed withthe Bar revealed that nearly half of alltelevision and radio advertisements in theyears leading up to the revised regime hadbeen found not to comply with the Rules.See Florida Bar, Petition to Amend theRules Regulating the Florida Bar—Adver-tising Rules, filed Dec. 14, 2005, HarrellAff., Ex. 9, at 14. In some years, the rateof non-compliance was as high as 60%. Id.Requiring lawyers to give the Bar a briefopportunity to advise them of whethertheir advertisements are compliant servesthe rule’s expressly stated purposes, name-ly, ‘‘to enhance TTT the bar’s ability tomonitor advertising practices for the pro-tection of the public and to assist membersof the bar to conform their advertisementsto the requirements of these rules.’’ Rule4–7.7, cmt. In other words, the rule helpsreduce the number of non-compliant ad-vertisements by giving lawyers the oppor-tunity to comply voluntarily with the Bar’sview of the rules. That, in turn, serves tominimize the number of advertisementsthat would, in the Bar’s view, harm thepublic or its perception of the legal systemas a whole.11

The third prong of Central Hudson re-quires that there be an adequate ‘‘fit be-tween the legislature’s ends and the meanschosen to accomplish those ends, a fit thatis not necessarily perfect, but reasonable.’’

11. Harrell’s principal explanation of why thepre-filing requirement fails to advance anylegitimate state interest is no more than aveiled attack on the substance of the advertis-ing rules themselves. Mainly, Harrell saysthat noncompliance with the rules is rampantprecisely because the rules are vague andinsusceptible of enforcement in a consistentand principled manner, and that for this rea-son, the Bar’s guidance is useless anyway.

This argument is properly the subject of Har-rell’s vagueness challenge, but it is not rele-vant to our present inquiry under CentralHudson. Harrell does not challenge everyextant rule of the Florida Bar, and our task isonly to decide whether the procedure that theBar has chosen to ensure compliance with itsrules places an unacceptable burden on thecommercial speech of lawyers who are sub-ject to the Bar’s regulatory authority.


Went For It, 515 U.S. at 632, 115 S.Ct.2371 (quotation marks and citation omit-ted). In other words, the regulation mustbe ‘‘reasonably well tailored to its statedobjective.’’ Id. at 633, 115 S.Ct. 2371.The plaintiffs in this case have neithersuggested a less restrictive means of effec-tuating the Bar’s important goals, nor ex-plained how the twenty-day waiting period,which gives the Bar a brief opportunity toreview advertisements before their trans-mission, imposes a burden that is unrea-sonable in relation to the goal of enforcingthe rules’ various substantive restrictions.

Indeed, we consider the burden placedon Florida attorneys to be minimal. InWent For It, the Supreme Court repeated-ly characterized a ‘‘30–day blackout peri-od’’ on attorney solicitation following anaccident as ‘‘brief.’’ Id. at 620, 633, 115S.Ct. 2371. It also minimized the petition-ers’ non-frivolous argument that ‘‘the Rulemay prevent citizens from learning abouttheir legal options, particularly at a timewhen other actors—opposing counsel andinsurance adjusters—may be clamoring forvictims’ attentions.’’ Id. at 633, 115 S.Ct.2371.

Here, by contrast, we face only a twen-ty-day delay, and we can see no pressingneed for immediate dissemination ofbroadcast advertisements. As the Barpointed out in its petition to the FloridaSupreme Court seeking adoption of thecurrent Rule 4–7.7, ‘‘[m]any lawyers whoadvertise do so on a regular basis with aseries of advertisements that change overtime.’’ Florida Bar: Petition to Amendthe Rules Regulating the Florida Bar—Advertising Rules, filed Dec. 14, 2005,Harrell Aff., Ex. 9, at 14. And even as toan unusually time-sensitive advertisement,we think that a twenty-day delay repre-sents a constitutionally acceptable burdenunder the circumstances. Indeed, if theSupreme Court believes that an ‘‘obvious’’

alternative to a wholesale ban on lawyeradvertising is ‘‘to require the lawyer to fileany solicitation letter with a state agency,’’and if that methodology is designed to‘‘giv[e] the State ample opportunity to su-pervise’’ attorney advertisements, Shape-ro, 486 U.S. at 476, 108 S.Ct. 1916 (empha-sis added), we cannot imagine how thetwenty-day delay we face here could beimpermissible. In short, Rule 4–7.7(a)(1)(A) does not amount to an uncon-stitutional imposition on protected com-mercial speech under the First Amend-ment.

VI.

In sum, Harrell has standing to chal-lenge Rules 4–7.1, 4–7.2(c)(1)(G), 4–7.2(c)(2), 4–7.2(c)(3), and 4–7.5(b)(1)(A) onvagueness grounds, and those vaguenessclaims are also ripe for review. Further,Harrell’s as-applied challenge to the rejec-tion of his slogan ‘‘Don’t settle for lessthan you deserve’’ is not moot. However,although Harrell has standing to challengeall nine of the Bar’s identified rules asunconstitutional encroachments on his de-sired speech, these as-applied claims arenot ripe for judicial review, with the singleexception of Harrell’s attack on Rule 4–7.5(b)(1)(C), prohibiting backgroundsounds other than instrumental music.Harrell’s constitutional challenge to theBar’s pre-filing rule, Rule 4–7.7(a)(1)(A),fails because the rule is not a prior re-straint and directly serves important stateinterests in a reasonably well-tailored fash-ion. Accordingly, we affirm in part, re-verse in part, and remand to the districtcourt for consideration of Harrell’s justici-able claims on the merits.

AFFIRMED IN PART, REVERSEDIN PART, AND REMANDED.

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HARRELL v. THE FLORIDA BAR 1241