DeSalvo v. StateDeSalvo v. State
The crucial question in this case is whether a law which prohibits disclosure of state motor vehicle accident reports to anyone except a party to an accident, his or her representative, attorney and insurer, the press, and contractors for on-line driving records, violates the First Amendment rights of lawyers engaged in advertising who seek to gather information from the reports targeting potential clients for mass direct mail solicitations. The trial court declared the law unconstitutional as violative of the state constitutional right of equal protection of the laws. Although that court did not reach the plaintiffs’ First Amendment challenge, it indicated that the law may be unconstitutional on this ground also. The State of Louisiana and Department of Public Safety and Corrections appealed, and the plaintiffs re-urged all of their constitutional challenges, including their First Amendment attack. We reverse.
Lawyer advertising is in the category of constitutionally protected commercial speech. The First Amendment permits a state to impose restrictions on the time, place and manner of commercial advertising, as with regard to other varieties of speech, provided such restrictions are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. The law in question meets all of these requirements. The law is
BACKGROUND
The driver of a vehicle involved in an accident resulting in injury, death, or property damage in excess of $100 is required to file an accident report with the Department of Public Safety or, if the accident occurred in a city, with the city‘s police department.
By Act 878 of 1992, the legislature added
The plaintiffs, attorneys who previously obtained the names and addresses of parties to auto mishaps from the accident reports for direct mail solicitations, brought this action for a judgment declaring Act 878 of 1992 unconstitutional, contending that the law, by prohibiting their access to accident reports, denied them equal protection of the laws in violation of
I.
As a general rule, the First Amendment provides that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). With respect to noncommercial speech, the Supreme Court has sustained content-based restrictions only in the most extraordinary circumstances. See Consolidated Edison Co. v. Public Service Comm‘n of New York, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, and the greater objectivity and hardiness of commercial speech, content-based restrictions on commercial
In Central Hudson Gas & Electric Corp. v. Public Service Comm‘n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Supreme Court stated that the constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. Id. at 563, 100 S.Ct. at 2350. The Court then adopted a four-part analysis for assessing the validity of content-based restrictions on commercial speech as distinguished from more fully protected speech: (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it, (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. Id., at 563-566, 100 S.Ct. at 2350-2351.
A less stringent test applies, however, when the regulation does not flatly prohibit or restrict commercial speech because of its content but indirectly results in a stricture upon the flow of information or ideas because of a government measure seeking a goal independent of the communicative content or impact of the speech. The Court has indicated that restrictions on the time, place and manner of commercial advertising may be imposed, as with regard to other varieties of speech, provided “that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.” Virginia Pharmacy Board, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976), comparing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); United States v. O‘Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); with Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); and Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); See also, Bates, 433 U.S. at 384, 97 S.Ct. at 2709.
Applying these principles, we conclude that Act 878 of 1992 is valid as a reasonable time, place, and manner regulation. The law meets all three of the requirements set forth in the Supreme Court‘s decisions.
First, the law meets the time, place or manner requirement that the regulation “may not be based upon either the content or subject matter of speech.” Regan v. Time, Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 3266, 82 L.Ed.2d 487 (1984) (quoting Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981); Consolidated Edison Co. v. Public Service Comm‘n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980)). It is not disputed that the law‘s ban on disclosure of vehicular accident reports is content neutral and is not being applied because of disagreement with the message which the plaintiffs wish to disseminate to persons identified in the accident reports. Second, the statute was not faulted, nor could it be, on the ground that it failed to “leave open ample alternative channels for communication of the information.” Regan, 468 U.S. at 648, 104 S.Ct. at 3266 (quoting Heffron, 452 U.S. at 648, 101 S.Ct. at 2564; Virginia Pharmacy Board, 425 U.S. at 771, 96 S.Ct. at 1830). In fact, the law leaves open all channels of lawyer advertising, including direct mail solicitations.
We conclude, therefore, that because of the state‘s substantial interest in assuring the privacy of its citizens, because amended
II.
We conclude that
In Sibley v. Board of Supervisors, 477 So.2d 1094, 1107-1108 (La.1985), this court held that
Because the law does not establish any classification based on race, religion, birth, sex, culture, physical condition, or political ideas or affiliations, the plaintiffs’ challenge does not invoke our strict or heightened scrutiny under
III.
IV.
The plaintiffs argued that
DECREE
For the reasons assigned,
REVERSED.
WATSON, J., concurs and assigns reasons.
KIMBALL, J., dissents and assigns reasons.
WATSON, Justice, concurring.
Traffic accident reports are public records, and the public should be able to see those records, particularly since the legislation gives them to the press. Thornton v. Department of Public Safety, 536 So.2d 595 (La.1984). The access restrictions in Act 878 of 1992 set a dangerous and questionable precedent.
Nevertheless, I respectfully concur in the result reached by the majority because the plaintiffs have not shown what constitutional right, if any, has been violated.
KIMBALL, Justice, dissenting.
I respectfully disagree with the majority opinion that
Moreover, to the extent the implicit purpose of