02-5756 | 6th Cir. | Jul 23, 2004
Before: BOGGS, Chief Judge; BATCHELDER and
solicit recent traffic accident victims in the State of Tennessee SUTTON, Circuit Judges. to encourage them to seek chiropractic treatment at his offices. A regulation promulgated by the Tennessee Board of Chiropractic Examiners, the licensing board for all
1 No. 02-5756 Capobianco v. Summers, et al. 3 4 Capobianco v. Summers, et al. No. 02-5756 practitioners of chiropractic in Tennessee, restricts such whether the injunction would serve the public interest. See solicitations. The pertinent portion of that regulation reads: Washington v. Reno , 35 F.3d 1093" date_filed="1994-11-03" court="6th Cir." case_name="Conchita Washington Sunday Torres Gloria Batton Robinson Antoinette Frink Nita Young Patricia Darks Norma Fay Cook Angela Sanchez-Martinez Martha Marie Preston Titilola Odusanya Alberta Anderson Loven Lewis Lori Saunders v. Janet Reno">35 F.3d 1093, 1099 (6th Cir. 1994). “Telemarketing or telephonic solicitation by licensees, their These factors are not prerequisites but instead must be employees, or agents to victims of accidents or disaster shall
balanced. See Dayton Area Visually Impaired Persons, Inc. be considered unethical if carried out within thirty (30) days v. Fisher , 70 F.3d 1474, 1480 (6th Cir. 1995). We have of the accident or disaster, and subject the licensee to repeatedly noted that the first factor is frequently dispositive disciplinary action pursuant to T.C.A. § 63-4-114.” T ENN . in the First Amendment context. See Deja Vu of Nashville, C OMP . R. & R EGS . § 0260-2-.20(6)(a) (2000). While Inc. v. Metro Gov’t of Nashville & Davidson County, Tenn. , chiropractors are the only medical professionals subject to 274 F.3d 377" date_filed="2001-12-06" court="6th Cir." case_name="Deja Vu of Nashville v. The Metropolitan Government of Nashville">274 F.3d 377, 400 (6th Cir. 2001); Connection Distrib. Co. v. such a rule, attorneys in Tennessee are similarly prohibited Reno , 154 F.3d 281" date_filed="1998-10-22" court="6th Cir." case_name="Connection Distributing Co. v. The Honorable Janet Reno">154 F.3d 281, 288 (6th Cir. 1998); Newsom v. Norris , from soliciting accident victims within 30 days of an accident.
888 F.2d 371" date_filed="1989-10-19" court="6th Cir." case_name="Ronald Newsom Hasan Sharif Eddie J. McMillan and Donald Wolverton v. Steve Norris, Commissioner Michael Dutton, Warden and David Hindman">888 F.2d 371, 378 (6th Cir. 1989). The district court found Capobianco filed suit in district court, alleging that the Rule that Capobianco was unlikely to succeed on the merits of is an unconstitutional restraint on speech as well as a violation either his First Amendment or Equal Protection challenge, of equal protection because only chiropractors (among and that while Capobianco was unlikely to suffer irreparable medical professionals) are subject to such a limitation, and harm in the absence of an injunction, the issuance of the seeking declaratory and injunctive relief, attorneys’ fees and injunction was likely to cause harm to others and would not costs. Capobianco moved for a preliminary injunction to serve the public interest. prevent enforcement of the Rule during the pendency of this I. Capobianco’s First Amendment Challenge . litigation. The district court held oral argument on the motion and issued a memorandum opinion and order denying the
On appeal, the parties agree—as they did before the district preliminary injunction. Capobianco timely appeals from that court—that the standard governing Capobianco’s First denial. Amendment challenge to this rule regulating commercial speech is the intermediate scrutiny test set forth in Central DISCUSSION Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y. , We review for abuse of discretion a district court’s order 447 U.S. 557" date_filed="1980-06-20" court="SCOTUS" case_name="Central Hudson Gas & Electric Corp. v. Public Service Commission">447 U.S. 557 (1980). The Supreme Court summarized this granting or denying a preliminary injunction. See Blue Cross test in Florida Bar v. Went For It, Inc. , 515 U.S. 618" date_filed="1995-06-21" court="SCOTUS" case_name="Florida Bar v. Went for It, Inc.">515 U.S. 618, 624 & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield (1995), in which the Court upheld the constitutionality of Ass'n , 110 F.3d 318" date_filed="1997-05-13" court="3rd Cir." case_name="Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross">110 F.3d 318, 322 (6th Cir. 1997). A district court Florida Bar rules prohibiting attorneys from contacting, abuses its discretion when it relies upon clearly erroneous directly or indirectly, accident victims or their relatives for the findings of fact, improperly applies the governing law, or uses purposes of soliciting their business for a period of 30 days an erroneous legal standard. See id . Generally, in following an accident. Central Hudson , the Court said, considering a request for a preliminary injunction, the district permits the regulation of commercial speech “if the court should consider (i) whether the movant is likely to government satisfies a test consisting of three related parts: succeed on the merits; (ii) whether the movant will suffer First, the government must assert a substantial interest in irreparable injury in the absence of an injunction; (iii) whether support of its regulation; second, the government must the injunction will cause substantial harm to others; and (iv) demonstrate that the restriction on commercial speech directly
and materially advances that interest; and third, the regulation No. 02-5756 Capobianco v. Summers, et al. 5 6 Capobianco v. Summers, et al. No. 02-5756 must be narrowly drawn.” Id. (internal quotation marks having been contacted immediately after accidents by omitted). telemarketers on behalf of chiropractors; and articles from
scientific and business publications covering aspects of The Florida Bar Court agreed with the Bar that the State telephone solicitation relevant to that carried out by has a substantial interest in protecting “the privacy and chiropractors following accidents or disasters. We do not tranquility of personal injury victims and their loved ones write on a clean slate with respect to such regulations. In against intrusive, unsolicited contact by lawyers.” Id. at 624- Silverman , we reviewed the Tennessee statute that was the 25. Importantly, the Court recognized that the regulation at precursor to this Rule, which banned virtually all solicitation issue there was designed as well to establish standards by chiropractors. That case included virtually the same regulating the practice of law and protecting the reputation of anecdotal and periodical evidence presented in the case before the legal profession, and states have a “compelling interest in us today, and we concluded that “the statute's prohibition on the practice of professions within their boundaries, and . . . speech is an effective way of addressing the asserted broad power to establish standards for licensing practitioners
interests.” Id . at *4. and regulating the practice of professions.” Id. (quoting Goldfarb v. Virginia State Bar , 421 U.S. 773" date_filed="1975-10-06" court="SCOTUS" case_name="Goldfarb v. Virginia State Bar">421 U.S. 773, 792 (1975)). The district court noted that in the proceedings on the
motion for a preliminary injunction, Capobianco did not This circuit has held in an unpublished opinion that the challenge the Rule on the basis of the second part of Central State of Tennessee has a substantial interest in “protecting the Hudson ’s test. Nor does his brief on appeal present any privacy of accident victims, preventing overreaching by cogent challenge based on that part. Capobianco does assert, chiropractors and their agents and regulating the profession.” however, as part of his argument that the Rule fails the Silverman v. Summers , 28 Fed. Appx. 370, 374, 2001 WL effectiveness requirement of Central Hudson because some 1671072 (6th Cir. 2001). The State of Tennessee asserts the chiropractors are not complying with it. Capobianco does not same interest in support of the Rule at issue here, and the provide any authority for equating the existence of some district court held that the State’s interest is substantial. We
scofflaws with a regulation’s lack of efficacy. To the extent find no substantive difference between the interest asserted in that Capobianco raises the second part of the Central Hudson Florida Bar and that asserted here, and we hold that the State test, we hold that the State has satisfied it. has satisfied the first part of the Central Hudson test.
Capobianco’s strongest argument is based on the third part Next, we must address whether the Rule directly and of the Central Hudson test, namely, that, the Rule is not materially advances the State’s substantial interest. In narrowly drawn because chiropractic therapy is most effective Florida Bar , the Supreme Court reaffirmed the State’s burden if started within days of an injury and because the State has to present data, by way of studies or anecdotal evidence, less restrictive ways of protecting the privacy of those victims demonstrating the harms the regulation is designed to remedy and of policing the integrity of the profession than a 30-day and the efficacy of the regulation in alleviating those harms.
ban on contacting the victims. We agree with the district See Florida Bar , 515 U.S. 618" date_filed="1995-06-21" court="SCOTUS" case_name="Florida Bar v. Went for It, Inc.">515 U.S. at 626. Here, the State presented court that when viewed in the light of the most germane the district court with newspaper articles documenting both authority, namely Florida Bar and Silverman , the Rule is the solicitation of accident victims by chiropractors or their sufficiently narrowly drawn to meet the third part of the agents and the complaints and problems generated by those Central Hudson test. solicitations; declarations of individuals complaining about No. 02-5756 Capobianco v. Summers, et al. 7 8 Capobianco v. Summers, et al. No. 02-5756
Capobianco’s argument that because contacting victims sanction but simply subjects the licensee on whose behalf the quickly is important to chiropractic treatment, a 30-day time solicitation is made to disciplinary action. See T ENN . C OMP . limit is not narrowly tailored, was one of the points made by R. & R EGS . § 0260-2-.20(6)(a). The Supreme Court has made the dissenting opinion in Florida Bar. See Florida Bar , 515 it clear that in the context of commercial speech, Central U.S. at 642-43 (Kennedy, J., dissenting). The district court Hudson ’s “narrowly drawn” requirement does not mean that concluded that the fact that Florida Bar involved a rule the regulation employs the “least restrictive means” to governing attorneys and the Rule in this case governs achieve its end. Florida Bar , 515 U.S. 618" date_filed="1995-06-21" court="SCOTUS" case_name="Florida Bar v. Went for It, Inc.">515 U.S. at 632 (citing Board chiropractors was not sufficient to distinguish this case from of Trustees of State Univ. of N.Y. v. Fox , 492 U.S. 469" date_filed="1989-06-29" court="SCOTUS" case_name="Board of Trustees of State Univ. of NY v. Fox">492 U.S. 469, 480 Florida Bar in that respect. Indeed, as the district court (1989)). We think this time limit, identical to that in Florida noted, the majority in Florida Bar must have considered and Bar , and this sanction, are sufficiently narrow to satisfy the rejected that precise argument. Like the district court, we find third part of the Central Hudson test. no reason to do otherwise.
We hold that the district court did not err in concluding that In Silverman , we ultimately concluded that the statute Capobianco has demonstrated little likelihood of succeeding failed the third part of the Central Hudson test because it on the merits of his First Amendment challenge to T ENN . impermissibly banned: C OMP . R. & R EGS . 0260-2-.02(6)(a).
Solicitation, in person or by live telephone contact, by II. Capobianco’s Equal Protection Challenge . a licensee, or by an agent, servant, employee, or Capobiano also challenges the Rule under the Fourteenth independent contractor of a licensee, of a patient with Amendment’s Equal Protection clause. The Equal Protection whom a licensee has no family or prior professional clause guarantees that no State shall “deny to any person relationship; however, this shall not prohibit solicitation within its jurisdiction the equal protection of the laws,” a by targeted direct mail advertising or other forms of guarantee that the Supreme Court has characterized as a written, radio, or television advertising; provided, that requirement that “all persons similarly situated . . . be treated the advertising does not involve coercion, duress, or
alike.” City of Cleburne v. Cleburne Living Ctr. , 473 U.S. harassment and is not false, deceptive or misleading. 432, 439 (1985) (citing U.S. C ONST . amend. XIV.). T ENN C ODE . A NN . § 63-4-114(5); see Silverman, 2001 WL Reviewing an equal protection challenge to a Kentucky 1671072 at *2. Chief among the reasons for our decision was statute prohibiting attorneys or their agents from soliciting the fact that the statute contained no time limit at all on the accident victims within 30 days of their accidents, we held restriction of access to accident victims by chiropractors or that if a regulation impacting speech is content-neutral such their agents. See id . at *5. We also noted that the imposition as a time, place, or manner restriction, then we utilize of criminal sanctions weighed against the constitutionality of intermediate scrutiny. See Chambers v. Stengel , 256 F.3d the regulation. See id . 397, 401 (6th Cir. 2001). Commercial speech restrictions, we
said, will “survive constitutional assessment if the implicated Here, Tennessee has corrected those problems. This Rule measure was narrowly fashioned to further a significant limits the restriction on telemarketing or telephonic governmental interest.” Id. (quoting Grider v. Abramson , 180 solicitation of any accident victim to the 30-day period F.3d 739, 748 (6th Cir. 1999)). And we went on to hold that following the accident. And the Rule contains no criminal “[b]ecause regulation of commercial speech is subject to No. 02-5756 Capobianco v. Summers, et al. 9 10 Capobianco v. Summers, et al. No. 02-5756 intermediate scrutiny in a First Amendment challenge, it did not err in holding that Capobianco is unlikely to succeed follows that equal protection claims involving commercial on the merits of his Equal Protection challenge to the Rule. speech also are subject to the same level of review.” Id. The district court held that the other factors the court is (citing R.A.V. v. City of St. Paul , 505 U.S. 377" date_filed="1992-06-22" court="SCOTUS" case_name="R. A. v. v. City of St. Paul">505 U.S. 377, 385 (1992)).
required to balance in reviewing a demand for a preliminary We have already concluded that the Rule at issue here injunction weigh in favor of the State. Inasmuch as survives First Amendment scrutiny because it satisfies the Capobianco does not present any argument with regard to Central Hudson test, that is, the rule is narrowly drawn and these elements of the district court’s ruling, we will not directly and materially advances a substantial government address them. Accordingly, we hold that the district court did interest. See Central Hudson , 447 U.S. 557" date_filed="1980-06-20" court="SCOTUS" case_name="Central Hudson Gas & Electric Corp. v. Public Service Commission">447 U.S. at 564-65; see also not abuse its discretion in denying Capobianco’s request for Florida Bar , 515 U.S. 618" date_filed="1995-06-21" court="SCOTUS" case_name="Florida Bar v. Went for It, Inc.">515 U.S. at 624. In Chambers , we held that the a preliminary injunction. Kentucky statute “is narrowly tailored to further substantial CONCLUSION governmental interests and, thus, comports with the Equal Protection Clause.” Chambers , 256 F.3d at 403. Because we
For the foregoing reasons, we AFFIRM the judgment of the see no basis for concluding that Griders ’s “significant district court. governmental interest” and Central Hudson ’s “substantial” government interest are materially different, we conclude that this Rule also comports with the Equal Protection Clause.
But Appellant also argues that because medical doctors are not subject to such a regulation, the state has failed to treat them “alike.” The district court noted, and we agree, that because there is no single instance in the record of a medical doctor contacting an accident victim within 30 days of an accident, or any complaint by someone with reference to such a contact, if Tennessee were to enact a parallel regulation for medical doctors, it “would be implementing a solution to a nonexistent problem.” The Equal Protection Clause does not require that the state treat all persons alike. It requires only that the state treat similarly situated persons alike, and that where the state distinguishes between classifications of persons, the distinction must “have some relevance to the purposes for which the classification is made.” Chambers , 256 F.3d at 401 (quoting Baxstrom v. Herold , 383 U.S. 107" date_filed="1966-02-23" court="SCOTUS" case_name="Baxstrom v. Herold">383 U.S. 107, 111 (1966)). Here, the State has distinguished between medical professionals who have a record of engaging in a particular conduct that generates complaints about matters in which the state has a substantial interest, and medical professionals who do not. We conclude that the district court