Finding that "naked paternalism" will not justify "protecting the public from truthful information," a Florida federal court held that two Florida Bar rules restricting attorney advertising violate the First Amendment to the United States Constitution.
Adopted in 2013, the two rules banned all advertising references to a lawyer's past results unless the attorney could establish the results were "objectively verifiable." The following year, the Bar released new, more stringent guidelines that established a blanket prohibition on the use of past results in any indoor and outdoor display, radio or television advertisements. The suit, Rubenstein v. The Florida Bar, was brought by a Florida attorney who faced disciplinary action from the Bar after continuing to disseminate television advertisements that referenced his past results for clients after the guidelines were issued.
Applying the intermediate scrutiny standard of First Amendment review, Judge Beth Bloom noted the Bar's three grounds for enacting the regulations: to protect the public from misleading or deceptive attorney advertising; to promote informative attorney advertising; and to prevent attorney advertising that contributes to disrespect for the legal system. The court then held that the Bar failed to demonstrate that the rules' restrictions advanced any of those interests. The court found critical the fact that the Bar justified its restrictions in the theory that the inclusion of past results could potentially mislead consumers, rather than relying on data showing actual past harm experienced by consumers. In fact, the court took note of evidence previously accumulated by the Bar through surveys that showed consumers believed an attorney's past results to be an important attribute in choosing a lawyer, and that consumers wanted more information – such as an attorney's record – when hiring a lawyer.
Notably, the court engaged substantially with the question of whether the best way to offset any possible misleading of the public is to limit the amount of speech that reaches it, or rather to allow all speech and permit members of the public to develop their own conclusions. Noting that while an attorney's past results may present the risk of being misleading, absent any proof of the public being misled, the court held that the state could not rely on "mere conjecture and speculation" to regulate protected speech.