929 F.3d 366
6th Cir.2019Background
- Bevan & Associates, an Ohio law firm representing workers’ compensation claimants, used claimant contact data (partly obtained via a journalist exception) to send targeted written solicitations to injured workers.
- Ohio Revised Code § 4123.88(A) contains a long-standing prohibition stating: “No person shall directly or indirectly solicit authority … from a claimant or employer to take charge of, or represent the claimant…” — banning solicitation “orally or in writing.”
- In 2006 the statute was reorganized into subsections (A)–(E), adding confidentiality provisions and a journalist exception for records requests; the solicitation language in (A) remained substantively unchanged.
- Ohio prosecuted (via grand-jury subpoena) and threatened misdemeanor exposure under § 4123.88; Bevan sued seeking a declaratory judgment that the solicitation ban violates the First Amendment.
- The district court narrowly construed § 4123.88(A) to apply only to solicitation based on unlawfully obtained claimant information and upheld the statute; Bevan appealed.
- The Sixth Circuit reviewed de novo, held the statutory language is unambiguous as a total ban on solicitation, and concluded that blanket ban on written and oral solicitation violates the First Amendment.
Issues
| Issue | Plaintiff's Argument (Bevan) | Defendant's Argument (Ohio) | Held |
|---|---|---|---|
| Whether § 4123.88(A) is a blanket ban on solicitation of workers’ compensation claimants | § 4123.88(A) unambiguously bars all solicitation (oral or written) of claimants | The provision should be read narrowly to prohibit only solicitation facilitated by unlawfully obtained claimant information; interpret in context of the whole statute | The statute’s plain text is unambiguous and reads as a total ban on solicitation; court applies it as written |
| Whether constitutional-avoidance requires narrowing the statute | Statute should be read as written; avoidance canon cannot rewrite clear statutory text | Canon compels a narrowing interpretation to avoid First Amendment invalidation | Avoidance applies only if statute is susceptible to more than one reasonable construction; here it is not; cannot be judicially rewritten |
| Whether § 4123.88(A) survives First Amendment scrutiny for regulation of commercial speech | Targeted written solicitation is protected commercial speech; total ban fails Central Hudson (overbroad) | State interest in claimant privacy and confidentiality justifies the restriction; statute regulates conduct not speech | Under Central Hudson and Shapero, a total ban on written solicitation is not sufficiently tailored; statute violates the First Amendment |
| Whether the State may criminalize solicitation based on illegally obtained records | Bevan contends a narrow ban on solicitation using unlawfully obtained info would be permissible but the statute is broader | Ohio argues it seeks to deter unlawful acquisition and use of claimant data, so the ban should be viewed as conduct regulation | State may prohibit solicitation tied to illegally obtained information, but § 4123.88(A) is broader and unconstitutional as written |
Key Cases Cited
- Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988) (targeted, written attorney solicitation is protected commercial speech; total ban is overbroad)
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (untargeted legal advertising protected by the First Amendment)
- Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) (states may prohibit in-person attorney solicitation due to heightened risk of overreaching)
- Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) (four-part test for regulation of commercial speech)
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (compelled disclosures in commercial speech may be permissible; distinctions between advertising modes)
- Edenfield v. Fane, 507 U.S. 761 (1993) (struck down a ban on in-person solicitation by CPAs; distinguishes risks posed by different professionals)
- Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (First Amendment does not protect use of speech as integral part of unlawful conduct)
- Clark v. Martinez, 543 U.S. 371 (2005) (constitutional-avoidance canon applies only when statute is susceptible to multiple reasonable constructions)
- Sebelius v. Cloer, 569 U.S. 369 (2013) (statutory interpretation begins with statutory text)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; material facts and inferences)