Andrew Dwyer v. Cynthia Cappell

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 13-3235
________________
ANDREW DWYER; THE DWYER LAW FIRM, LLC,
Appellants
v.
CYNTHIA A. CAPPELL, in her official compacity as the
Chair of the Supreme Court of New Jersey Committee on
Attorney Advertising; JONATHAN M. KORN, in his official
capacity as the Vice Chair of the Supreme Court of New
Jersey Committee on Attorney Advertising; FRANK L.
CORRADO, in his official capacity as a member of the
Supreme Court of New Jersey Committee on Attorney
Advertising; ELIZABETH Y. FUERST, in her official
capacity as a member of the Supreme Court of New Jersey
Committee on Attorney Advertising; SHERYL MINTZ
GOSKI, in her official capacity as a member of the Supreme
Court of New Jersey Committee on Attorney Advertising;
AMIRALI Y. HAIDRI, in his official capacity as a member
of the Supreme Court of New Jersey Committee on Attorney
Advertising; NORA POLIAKOFF, in her official capacity as
a member of the Supreme Court of New Jersey Committee on
Attorney Advertising; CAROL JOHNSTON, in her official
capacity as a member of the Supreme Court of New Jersey
Committee on Attorney Advertising
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-12-cv-03146)
District Judge: Honorable Faith S. Hochberg
________________
Argued February 18, 2014
Before: AMBRO, HARDIMAN,
and GREENAWAY, JR., Circuit Judges
(Opinion filed: August 11, 2014)
Andrew W. Dwyer, Esquire (Argued)
The Dwyer Law Firm
17 Academy Street, Suite 1201
Newark, NJ 07102
Counsel for Appellants
John J. Hoffman
Acting Attorney General of New Jersey
Lisa A. Puglisi
Assistant Attorney General
Susan M. Scott (Argued)
Deputy Attorney General
Office of Attorney General of New Jersey
Department of Law and Public Safety
P.O. Box 112
25 Market Street
Richard J. Hughes Complex
Trenton, NJ 08625
2
Counsel for Appellees
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Attorney Andrew Dwyer, lauded by New Jersey
judges in separate judicial opinions, published on his law
firm’s website those complimentary remarks. One of the
judges objected to this, and ultimately the New Jersey
Supreme Court adopted an attorney-conduct guideline that
bans advertising with quotations from judicial opinions unless
the opinions appear in full. Is the guideline an
unconstitutional infringement on speech as applied to the
advertisements of Mr. Dwyer and his firm? We believe it is
and thus reverse the contrary decision of the District Court.
I. FACTS AND PROCEDURAL HISTORY
In 2007, Dwyer 1 launched a website,
www.thedwyerlawfirm.com. Its home page greeted potential
clients with the following prominently displayed
advertisement:
“Are You Thinking Of Suing Your Employer?”
“Mr. Dwyer is, I think, an exceptional lawyer,
one of the most exceptional lawyers I’ve had
the pleasure of appearing before me. He is
1
The plaintiffs-appellants in this case—Andrew Dwyer and
his law firm, The Dwyer Law Firm, L.L.C.—are referred to
collectively and individually as “Dwyer.”
3
tenacious, professional in his presentation to the
Court, a bit too exuberant at times, certainly
passionate about his position, but no one can
fault his zeal and his loyalty to his client, and no
one can question his intellect . . . .”
---Hon. Jose L. Fuentes, J.S.C.
“The inescapable conclusion is . . . that
plaintiffs achieved a spectacular result when the
file was in the hands of Mr. Dwyer. . . . Mr.
Dwyer was a fierce, if sometimes not
disinterested advocate for his clients, and
through an offensive and defensive motion
practice and through other discovery methods
molded the case to the point where it could be
successfully resolved.”
---Hon. William L. Wertheimer, J.S.C.
The excerpts are from unpublished (though
presumably public) judicial opinions concerning fee
applications in employment discrimination cases brought
under the New Jersey Law Against Discrimination. They
were made in the context of the statute’s fee-shifting
provisions, which require judges to assess the abilities and
legal services of plaintiffs’ attorneys.
By letter to Dwyer in April 2008, Judge Wertheimer
requested that his quoted comments be removed from the
website. The Judge explained that, although he did “not have
reason to doubt the accuracy of the verbiage,” he “would not
care for potential clients [of Dwyer] to believe that it is a
blanket endorsement” of him. Dwyer refused to take the
excerpt down because he did not believe the language was
false or misleading. Subsequently, Judge Wertheimer’s letter
and Dwyer’s response were forwarded to the New Jersey
4
Bar’s Committee on Attorney Advertising (the “Committee”),
whose members are the defendants-appellees before us.
In February 2009, after several meetings and after
receiving submissions from Dwyer, the Committee published
a Notice to the Bar soliciting comments on a proposed
attorney advertising guideline (the “Proposed Guideline”). It
provided that “[a]n attorney or law firm may not include, on a
website or other advertisement, a quotation from a judge or
court opinion (oral or written) regarding the attorney’s
abilities or legal services.” Dwyer submitted a comment in
which he argued that the Proposed Guideline was an
unconstitutional ban on speech. In addition, while the
Proposed Guideline was pending, Dwyer added to the website
a third excerpt from an unpublished opinion concerning a fee
application in a suit under the New Jersey Conscientious
Employee Protection Act:
“Based upon my observations of [Dwyer] in
court there’s no question in my mind that he is
in the upper echelon of employment lawyers in
this state. . . .”
---Hon. Douglas H. Hurd, J.S.C.
Three years later, in May 2012, the New Jersey
Supreme Court approved an amended version of the Proposed
Guideline, now called Guideline 3. It differs from the
Proposed Guideline in one respect: whereas the Proposed
Guideline simply banned advertising with quotes from judges
or judicial opinions, Guideline 3 bans those ads but allows
attorneys to advertise with the full text of judicial opinions.
In its final form, Guideline 3 provides:
Attorney Advertisements: Use of Quotations or
Excerpts From Judicial Opinions About the
Legal Abilities of an Attorney
5
An attorney or law firm may not include, on a
website or other advertisement, a quotation or
excerpt from a court opinion (oral or written)
about the attorney’s abilities or legal services.
An attorney may, however, present the full text
of opinions, including those that discuss the
attorney’s legal abilities, on a website or other
advertisement.
The official comment to Guideline 3 demonstrates that it was
promulgated to target Dwyer’s website specifically:
This Guideline arises from the review by the
Committee on Attorney Advertising of an
attorney’s website that included two quotations
from judges about the attorney’s legal abilities.
The quotations were from unpublished opinions
of the judges on fee applications and the judges’
names and titles were included in the
advertisement.
[Rule of Professional Conduct] 7.1(a) prohibits
misleading statements. When a judge discusses
an attorney’s legal abilities in an opinion, such
as in a fee-shifting or division-of-fee case, the
judge is setting forth findings of fact and
conclusions of law pertinent to the decision in
the matter. The judge is not personally
endorsing the attorney or making a public
statement about the attorney for advertising
purposes. In fact, judges are expressly
prohibited from endorsing attorneys or
providing testimonials regarding attorneys. The
Committee finds that such quotations or
excerpts, when taken out of the context of the
6
judicial opinion and used by an attorney for the
purpose of soliciting clients, are prohibited
judicial endorsements or testimonials. As such,
these quotations or excerpts from a judicial
opinion in attorney advertising are inherently
misleading in violation of [Rule of Professional
Conduct] 7.1(a).
The day before Guideline 3 went into effect Dwyer
filed this action in the District of New Jersey seeking
injunctive and declaratory relief under 42 U.S.C. § 1983. He
simultaneously moved for a temporary restraining order and
preliminary injunction to enjoin enforcement of the
Guideline. See Dwyer v. Cappell, 951 F. Supp. 2d 670, 671
n.1 (D.N.J. 2013). The District Court denied the request for a
temporary restraining order and set a full briefing schedule
for the preliminary injunction motion. See id. The parties
then filed cross-motions for summary judgment, which the
District Court considered concurrently with the motion for a
preliminary injunction. Id.
During discovery, Dwyer deposed Carol Johnston, the
designated agent for the Committee. Ms. Johnston testified
that the excerpts on Dwyer’s website violated Guideline 3.
She claimed that, even if the quotations include hyperlinks to
the full text of the judicial opinions, they would still violate
the Guideline. She also testified that, although the Committee
had no evidence demonstrating that the excerpts misled
potential clients, based on “common sense” it had concluded
that excerpts from judicial opinions regarding attorneys’
abilities are inherently misleading. Aside from Judge
Wertheimer, there have been no complaints about Mr.
Dwyer’s website, and no one has claimed being misled by the
judicial excerpts.
7
The District Court granted the Committee’s summary
judgment motion, denied Dwyer’s motion for summary
judgment, and denied as moot his motion for a preliminary
injunction. See id. at 675-76. It explained that “[t]he core of
the parties’ dispute is the legal issue of whether Guideline 3 is
most appropriately characterized as a ‘restriction’ on speech,
or whether it instead is a regulatory requirement of ‘additional
disclosure.’” Id. at 673. The Court concluded that “because
[Guideline 3] requires full disclosure of a judicial opinion,” it
is “not a ban on speech but is instead a disclosure
requirement.” Id. at 674. Moreover, it held that a judicial
quotation’s potential to mislead is “self-evident” because,
“[w]ithout the surrounding context of a full opinion, judicial
quotations relating to an attorney’s abilities could easily be
misconstrued as improper judicial endorsement of an
attorney, thereby threatening the integrity of the judicial
system.” Id. at 674-75.
The District Court applied the test for disclosure
requirements set in Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).
Under that standard, it determined that the Guideline was
“reasonably related to the [S]tate’s interest in preventing the
deception of consumers” and was not “unduly burdensome.”
Dwyer, 951 F. Supp. 2d at 675. Thus it upheld the Guideline
as constitutional. Id. In a footnote, the Court noted that, even
if Guideline 3 were a restriction on speech subject to the more
rigorous intermediate scrutiny under Central Hudson Gas &
Electric Corp. v. Public Service Commission, 447 U.S. 557,
563-64 (1980)—under which the regulation must “‘directly
advanc[e]’ a substantial governmental interest and be ‘n[o]
more extensive than is necessary to serve that interest,”
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.
229, 249 (2010) (alterations in Milavetz) (quoting Central
Hudson, 447 U.S. at 566)—it would still be constitutional, see
8
Dwyer, 951 F. Supp. 2d at 675 n.6. Dwyer appeals these
decisions as applied to him and his firm. 2
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
“This court reviews [a] [d]istrict [c]ourt’s decision
resolving cross-motions for summary judgment de novo.”
Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008)
(italics added). “To that end, we are required to apply the
same test the [D]istrict [C]ourt should have utilized initially.”
Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of
Educ., 587 F.3d 176, 181 (3d Cir. 2009) (citation and internal
quotation marks omitted). This test requires a court to “grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). We thus review de novo the District Court’s holding
that Guideline 3 does not violate Dwyer’s speech rights under
the First Amendment of our Constitution.
III. DISCUSSION
A. Restrictions on Speech and Disclosure
Requirements. The First Amendment states that “Congress
shall make no law . . . abridging the freedom of speech,” U.S.
Const. amend I, and applies to the States through the Due
Process Clause of the Fourteenth Amendment, see Gitlow v.
2
Though Dwyer’s complaint and his opening brief on appeal
mention a facial challenge to Guideline 3 (something the
District Court did not deal with), Dwyer clarified at oral
argument before us that he relies on the as-applied challenge
exclusively.
9
New York, 268 U.S. 652, 666 (1925). The parties agree that
our case involves only commercial speech. It is by now well
settled that “commercial speech is entitled to the protection of
the First Amendment, albeit to protection somewhat less
extensive than that afforded noncommercial speech.”
Zauderer, 471 U.S. at 637 (internal quotation marks omitted);
see also Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2672
(2011). Similarly, though there was once a time when
attorney advertising could be proscribed without justification,
it is now settled that such advertising is “a form of
commercial speech, protected by the First Amendment, and
. . . ‘may not be subjected to blanket suppression.’” In re
R.M.J., 455 U.S. 191, 199 (1982) (quoting Bates v. Arizona,
433 U.S. 350, 383 (1977)). “‘[T]he party seeking to uphold a
restriction on commercial speech carries the burden of
justifying it.’” Edenfield v. Fane, 507 U.S. 761, 770 (1993)
(quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
71, n.20 (1983)).
As the District Court noted, this case concerns two
possible tracks of analysis, only one of which can apply:
restrictions on speech and disclosure requirements. See
Dwyer, 951 F. Supp. 2d at 674. The Committee maintains
that Guideline 3 is a disclosure requirement targeting
misleading advertising and hence subject only to Zauderer
scrutiny. Dwyer contends that Guideline 3 is a restriction on
non-misleading speech that should instead be reviewed under
Central Hudson intermediate scrutiny.
There are material differences between “outright
prohibitions[3]” on speech, where the State attempts to
“prevent attorneys from conveying information to the public,”
3
While “restrictions” on speech are typically perceived as a
subset of speech “prohibitions,” we (as do other courts) use
the terms interchangeably.
10
and “disclosure requirements,” which seek only to require
them to “provide somewhat more information than they might
otherwise be inclined to present.” Zauderer, 471 U.S. at 650.
Recognizing these differences, the Supreme Court has created
different frameworks once it is determined whether a
regulation is a restriction or a disclosure requirement.
For restrictions, there are three general categories of
commercial speech: non-misleading, potentially misleading,
and misleading. The more misleading the advertisement, the
more constitutional leeway is granted the States in restricting
it. In this context, “[c]ommercial speech that is not false,
deceptive, or misleading” may only be restricted if the
regulation withstands intermediate scrutiny under Central
Hudson. Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of
Accountancy, 512 U.S. 136, 142 (1994). States may prohibit
potentially misleading ads, but only if the information cannot
be presented in a way that is not deceptive (such as through
adding a disclosure requirement). R.M.J., 455 U.S. at 203.
Advertising that is inherently misleading or has proven to be
misleading in practice “may be prohibited entirely.” Id.; see
also Ibanez, 512 U.S. at 142 (“[F]alse, deceptive, or
misleading commercial speech may be banned.”). To repeat
in another way, restrictions on speech get protection under the
Constitution inversely proportional to the deceptiveness of the
target advertisement.
As noted, disclosure requirements receive less rigorous
scrutiny than restrictions on speech. See Zauderer, 471 U.S.
at 651; see also R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d
1205, 1212 (D.C. Cir. 2012) (characterizing Zauderer
scrutiny of disclosure requirements as “akin to rational-basis
review”). In the attorney advertising context, the Supreme
Court has consistently preferred disclosure over prohibition.
It recognized in Bates that, “because the public lacks
sophistication concerning legal services,” advertising by
11
attorneys poses special risks of deception. 433 U.S. at 383.
Because of this risk, “some limited supplementation, by way
of warning or disclaimer[4] or the like, might be required,”
even where an advertisement contains only truthful
information about the availability and terms of legal services,
“so as to assure that the consumer is not misled.” Id. at 384;
see also id. at 375 (“[T]he preferred remedy is more
disclosure, rather than less.”). Subsequently, in R.M.J. the
Court noted that where an attorney advertisement is
potentially misleading, “the remedy in the first instance is not
necessarily a prohibition but preferably a requirement of
disclaimers or explanation.” 455 U.S. at 203 (citing Bates,
433 U.S. at 375). Bates and R.M.J. demonstrate that, when it
comes to attorney advertising, the State may compel
supplemental disclosures to clarify truthful but potentially
misleading advertisements. However, in neither case did the
Court set a standard for evaluating these disclosures.
That void was filled by Zauderer. There an attorney
advertised to putative clients that “cases are handled on a
contingent fee basis of the amount recovered. If there is no
recovery, no legal fees are owed by our clients.” 471 U.S. at
631. The advertisement failed to comply with a state
disclosure requirement mandating that any advertisement for
contingent fee representation warn that, while potential
contingent-fee clients would not be responsible for legal fees,
4
Though we typically think of a disclaimer as a “statement
that one is not responsible for or involved with something,”
Black’s Law Dictionary 562 (10th ed. 2014), and a disclosure
as “a revelation of facts,” id., they may meld. For example, to
require that lawyers’ advertisements state that what a judge
wrote “is not an endorsement” is both a disclaimer of an
endorsement and a disclosure of supplemental information.
Thus courts sometimes use the terms interchangeably.
12
they may still be responsible for court costs. Id. at 633.
Zauderer was subsequently brought up on disciplinary
charges for, among other things, failing to include the
disclosure.
The Supreme Court rejected Zauderer’s argument that
the state disclosure requirement violated his free speech
rights. Id. at 650-53. It explained that where the State
requires an advertiser to “include in his advertising purely
factual and uncontroversial information about the terms under
which his services will be available,” the “constitutionally
protected interest in not providing any particular factual
information in [the advertisement] is minimal.” Id. at 651
(emphasis in original). The Court was quick to note,
however, that this did not mean “that disclosure requirements
do not implicate the advertiser’s First Amendment rights at
all.” Id. at 651. It therefore set out the now-prevailing
standard for assessing their constitutional validity: disclosure
requirements are permissible so long as they are “reasonably
related to the State’s interest in preventing deception of
consumers,” id., with the understanding that “unjustified or
unduly burdensome disclosure requirements might offend the
First Amendment by chilling protected commercial speech.”
Id.
Applying this new standard to Zauderer’s case, the
Court held that the State’s requirement “easily pass[ed]
muster . . . .” Id. at 652. Absent the disclosure, it was
“hardly a speculative” assumption that a substantial number
of laypersons not aware of the distinction between “fees” and
“costs” would be left with the impression that a loss in court
would be entirely free of charge. Id. Although the State
produced no evidence that consumers were deceived, the
Court explained that “[w]hen the possibility of deception is as
self-evident as it is in this case, we need not require the State
to conduct a survey of the . . . public before it [may]
13
determine that the [advertisement] had a tendency to
mislead.” Id. at 652-53 (citation and internal quotation marks
omitted) (second and third alterations in original). In this
rule-of-reason context, the disclosure requirement did not
abridge Zauderer’s freedom of speech.
The Supreme Court reaffirmed the Zauderer
framework for analyzing disclosure requirements in Milavetz,
559 U.S. at 249-50. There attorneys brought a First
Amendment challenge to a requirement that professionals
assisting consumers with bankruptcy must state in their ads
that “[w]e are a debt relief agency. We help people file for
bankruptcy relief under the Bankruptcy Code.” Id. at 233
(quoting 11 U.S.C. § 528(a)(4)). The attorneys contended
that Central Hudson intermediate scrutiny should apply. Id.
at 249. The Court rejected this argument and instead upheld
the requirement under Zauderer. Id. at 249-50. It explained
that Zauderer applied because the provision in question was
“directed at misleading commercial speech” and “impose[d] a
disclosure requirement rather than an affirmative limitation
on speech.” Id. at 249 (emphasis omitted). The takeaway:
there exist different frameworks for analyzing restrictions on
speech and disclosure requirements.
Guideline 3 bears characteristics of both categories.
Yet we need not decide whether it is a restriction on speech or
a disclosure requirement. This is because the Guideline is not
reasonably related to preventing consumer deception and is
unduly burdensome. Hence it is unconstitutional under even
the less-stringent Zauderer standard of scrutiny.
B. Guideline 3 Cannot Survive Zauderer Scrutiny.
The Committee hyperbolizes that the excerpts prohibited by
Guideline 3 are inherently misleading because laypersons
reading such quotes would understand them to be judicial
endorsements. Even were we to assume that excerpts of
14
judicial opinions are potentially misleading to some persons,
the Committee fails to explain how Dwyer’s providing a
complete judicial opinion somehow dispels this assumed
threat of deception. 5
A disclosure requirement is “reasonably related to the
State’s interest in preventing deception of consumers” where
it could plausibly dispel the misleading nature of the
advertisement to those who read it. Zauderer, 471 U.S. at
651. In Zauderer the requirement succinctly highlighted the
latent ambiguity in the advertisement by requiring a
disclosure that, although consumers would not owe legal fees,
they could still potentially owe court costs. See 471 U.S. at
652. Similarly, in Milavetz the required disclosure clarified to
consumers that an advertisement for bankruptcy “relief” was
hiding the possibility that this relief could itself be costly.
5
As to whether judicial opinion excerpts on Dwyer’s website
actually have the potential to mislead, we note that the
Committee has produced no evidence this is so, instead
relying on “common sense.” While it is the law that “[w]hen
the possibility of deception is . . . self-evident” a state is not
required to produce evidence to justify its imposition of a
disclosure requirement, Milavetz, 559 U.S. at 251 (quoting
Zauderer, 471 U.S. at 652), “we cannot allow rote invocation
of the words ‘potentially misleading’ to supplant the . . .
burden to demonstrate that the harms it recites are real and
that its restriction will in fact alleviate them to a material
degree,” Ibanez, 512 U.S. at 146 (internal quotation marks
and citations omitted). Unlike the advertisements targeted by
the disclosure requirements in Zauderer and Milavetz, which
had the obvious propensity to deceive laypersons, the
deceptiveness of accurately transcribed statements made by
judges in judicial opinion excerpts is far from “self-evident.”
15
See 559 U.S. at 251-52. In each case there was a reasonable
argument that the disclosure remedied the potentially
misleading advertisement.
In contrast, Guideline 3 does not require disclosing
anything that could reasonably remedy conceivable consumer
deception stemming from Dwyer’s advertisement. Providing
a full judicial opinion does not reveal to a potential client that
an excerpt of the same opinion is not an endorsement.
Indeed, providing the full opinion may add only greater
confusion. A reasonable attempt at a disclosure requirement
might mandate a statement such as “This is an excerpt of a
judicial opinion from a specific legal dispute. It is not an
endorsement of my abilities.” Such a statement or its
analogue would, we believe, likely suffice under Zauderer.
Guideline 3 does not.
Even more supportive of Dwyer’s position is that
Guideline 3 is unduly burdensome. The Supreme Court
recognized in Zauderer that “unduly burdensome disclosure
requirements might offend the First Amendment by chilling
protected commercial speech.” 471 U.S. at 651. While the
Court did not explain in what circumstances a disclosure
requirement could be “unduly burdensome,” it later clarified
that this condition exists where the required disclosure is so
lengthy that it “effectively rules out” advertising by the
desired means. See Ibanez, 512 U.S. at 146.
Ibanez thus becomes instructive. There a Florida
attorney who was also a certified financial planner (“CFP”)
listed her CFP credential next to her name in advertisements
in the yellow pages, on her business card, and on her law
office stationery. Id. at 138. In a subsequent disciplinary
proceeding the State Board of Accountants argued that, if
Ibanez wanted to list herself as a CFP, Florida law required
16
that she would have to provide a disclosure. It required, “in
the immediate proximity” of the CFP designation, Ibanez to
[1] state that the recognizing agency [here the
Certified Financial Planner Board of Standards]
is not affiliated with or sanctioned by the state
or federal government . . . [and] [2] set out the
recognizing agency’s requirements for
recognition, including, but not limited to,
education, experience, and testing.
Id. at 146 (citations, brackets, and internal quotation marks
omitted). The Supreme Court rejected the requirement as
unduly burdensome because “[t]he detail required . . .
effectively rule[d] out notation of the [CFP] designation on a
business card or letterhead, or in a yellow pages listing.” Id.
at 146-47. 6
Post-Ibanez the Fifth Circuit Court similarly struck
down an attorney disclosure requirement as unduly
burdensome. See Public Citizen Inc. v. La. Att’y Disciplinary
Bd., 632 F.3d 212, 228-29 (5th Cir. 2011). The case involved
a Louisiana requirement that attorneys disclose substantial
information in any televised advertisement:
[A]n attorney [television] advertisement must
include, both written in a large font and spoken
slowly, at least all of the following information:
(1) the lawyer’s name and office location; (2) a
client’s responsibility for costs; (3) all
jurisdictions in which the lawyer is licensed; (4)
the use of simulated scenes or pictures or actors
portraying clients; and (5) the use of a
6
The Court also found the requirement unjustified because
the alleged harm was “purely hypothetical.” Id. at 146.
17
spokesperson, whether the spokesperson is a
lawyer, and whether the spokesperson is paid.
Id. at 229 (internal citations omitted and emphasis in
original). This requirement, the Court held, “effectively
rule[d] out” attorneys’ abilities “to employ short
advertisements of any kind” and was therefore overly
burdensome. Id.; see also Tillman v. Miller, 133 F.3d 1402,
1403-04 (11th Cir. 1998) (per curiam); cf. Borgner v. Brooks,
284 F.3d 1204, 1215 (11th Cir. 2002) (upholding one
sentence disclosure as not “especially long or burdensome”).
Guideline 3 effectively rules out the possibility that
Dwyer can advertise with even an accurately quoted excerpt
of a judicial statement about his abilities. To comply with
Guideline 3, he must advertise with a full-length judicial
opinion if he wants to use any portion of that opinion on the
website. Even a hyperlink to unquoted portions of the
opinion fails the Guideline. This requirement is far more
onerous than the disclosures invalidated in Ibanez and Public
Citizen and necessarily prevents any form of advertisement
with simply a judicial excerpt. The only realistic medium for
quoting a full judicial opinion in an advertisement is,
ironically, a website, with its theoretically endless capacity.
However, even on Dwyer’s own website providing a full-text
judicial opinion is so cumbersome that it effectively nullifies
the advertisement. 7
While the intention behind Guideline 3 may be to
make it so burdensome to quote judicial opinions that
attorneys will cease doing so, that type of restriction—an
7
While we recognize that Dwyer challenges Guideline 3 only
as applied to his website, the effect of the Guideline is all the
more stark, when applied to attorney advertising in a
newspaper or magazine, let alone on the radio or television.
18
outright ban on advertising with judicial excerpts—would
properly be analyzed under the heightened Central Hudson
standard of scrutiny. Although such a ban would fail as
applied to Dwyer given our holding under the less stringent
Zauderer standard, we need not decide whether such a ban
would be valid in other cases. Because Guideline 3
effectively precludes advertising with accurate excerpts from
judicial opinions on Dwyer’s website, it is unduly
burdensome.
* * * * *
Guideline 3 as applied to Dwyer’s accurate quotes
from judicial opinions thus violates his First Amendment
right to advertise his commercial services. Requiring Dwyer
to reprint in full on his firm’s website the opinions noted
above is not reasonably related to preventing consumer
deception. To the extent the excerpts of these opinions could
possibly mislead the public, that potential deception is not
clarified by Guideline 3. In any event, what is required by the
Guideline overly burdens Dwyer’s right to advertise. We
thus reverse the order of the District Court and remand the
case.
19