Ficker v. Curran, 96-2724

• Decision Date: 23 July 1997
• Docket Number: No. 96-2724,96-2724
• Citation: 119 F.3d 1150
• Parties: 25 Media L. Rep. 2049 Robin K.A. FICKER; Natalie M. Boehm, t/a Lets Company, Plaintiffs-Appellees, v. J. Joseph CURRAN, Jr., Defendant-Appellant, North Carolina State Bar; Maryland Criminal Defense Attorneys' Association (MCDAA); American Civil Liberties Union, of Maryland; American Civil Liberties Union of the National Capitol Area; Gary Brewer; Miguel Hernandez; Steven Rhodes; Wendell H. Sawyer; K.E. Krispen Culbertson; I.E. Clarke Dummit, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1150

119 F.3d 1150

25 Media L. Rep. 2049

Robin K.A. FICKER; Natalie M. Boehm, t/a Lets Company Plaintiffs-Appellees, v. J. Joseph CURRAN, Jr., Defendant-Appellant North Carolina State Bar; Maryland Criminal Defense Attorneys' Association (MCDAA); American Civil Liberties Union, of Maryland; American Civil Liberties Union of the National Capitol Area; Gary Brewer; Miguel Hernandez Steven Rhodes; Wendell H. Sawyer; K.E. Krispen Culbertson I.E. Clarke Dummit, Amici Curiae.

No. 96-2724.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1997.

Decided July 23, 1997.

ARGUED: Robert Anthony Zarnoch, Assistant Attorney General, Annapolis, MD, for Appellant. Alan Edward D'Appolito, Upper Marlboro, MD, for Appellees. Charles Haven Wilson, American Civil Liberties Union of the National Capitol Area, Washington, DC, for Amici Curiae. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Annapolis, MD; Margaret Witherup Tindall, Staff Attorney, Baltimore, MD, for Appellant. Robin K.A. Ficker, Bethesda, MD, for Appellees. Arthur B. Spitzer, Stephen M. Block, American Civil Liberties Union of the National Capitol Area, Washington, DC; Dwight H. Sullivan, American Civil Liberties Union of Maryland, Baltimore, MD, for Amici Curiae ACLU, et al. Michael F. Easley, North Carolina Attorney General, Edwin M. Speas, Jr., Senior Deputy Attorney

General, Norma S. Harrell, Special Deputy Attorney General, Thomas F. Moffitt, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, NC, for Appellee State Bar. M. Albert Figinski, Weinberg & Green, L.L.C., Baltimore, MD, for Amicus Curiae Maryland Defense Attorneys. Seth R. Cohen, Smith, Follin & James, L.L.P., Greensboro, NC, for Amici Curiae Sawyer, et al.

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Senior Judge MICHAEL joined.

OPINION

WILKINSON, Chief Judge:

Robin Ficker, a Maryland attorney, and Natalie Boehm, the owner of a direct-mail advertising company, challenged the constitutionality of a Maryland law forbidding lawyers from targeted direct-mail solicitation of criminal and traffic defendants within thirty days of arrest. We agree with the district court that the Maryland ban encroaches impermissibly on First Amendment rights, and we accordingly affirm its judgment.

I.

During its 1996 session, the Maryland General Assembly enacted a new restriction on lawyer advertising, requiring that attorneys wait thirty days after an accident, disaster, criminal charge or traffic charge before mailing out targeted solicitation to victims or arrestees and their relatives. Md.Code Ann., Bus. Occ. & Prof. § 10-605.1(a). The new law went into effect on October 1, 1996, with violations punishable by a fine of up to $1,000 and incarceration for up to one year.

Appellees Robin Ficker and Natalie Boehm challenged the constitutionality of those portions of the statute which applied to criminal and traffic defendants. ¹ Ficker is a Maryland attorney who represents traffic defendants facing possible incarceration. He has traditionally obtained clients by mailing letters to individuals who have been issued traffic citations. Boehm owns and manages LETS Company, which produces and mails attorney advertising letters to individuals charged with criminal offenses or jailable traffic offenses.

The district court granted Ficker and Boehm's motions for summary judgment, ruling that the challenged portions of the statute were unconstitutional. Ficker v. Curran, 950 F.Supp. 123 (D.Md.1996). The court referenced a letter of Maryland's Attorney General to the Governor prior to the passage of the law, which concluded that: "No evidence in the files reflects that citizens generally find it offensive that attorneys offer information and services to traffic and criminal defendants who, in fact, desperately need them. Therefore, it is our view that this portion of the bill is unconstitutional and should not be enforced." See id. at 128. The district court agreed with this position, finding that Maryland "failed to demonstrate that § 1(a)(2) advances in a direct and material way any 'substantial interest' identified by the State." Id. at 129. It concluded that the "largely speculative harm to the legal profession's image" could not justify the law's "restriction on the free flow of information to individuals at a time when that information is critically needed." Id. Maryland now appeals.

II.

The Supreme Court has regularly reaffirmed the protected status of attorney advertising, extending First Amendment coverage to a variety of forms of lawyer advertising embodying a wide range of content. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court rejected the view that "protecting professionalism" sufficed to bar attorney advertising, and found such communications to be a species of "commercial speech" to which it had earlier afforded First Amendment protection in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Court initially accorded First Amendment protection to attorneys' newspaper and telephone directory advertisements. Bates, 433 U.S. 350, 97 S.Ct. 2691. It later extended the protection to advertising on an attorney's own letterhead, Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), mailed announcement cards, In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), and targeted, direct-mail solicitation, the very medium of communication which is the subject of this case, Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988).

The content of protected advertisements has been as varied as the form. It includes the attorney's areas of practice, the jurisdictions in which the attorney is licensed, R.M.J., 455 U.S. 191, 102 S.Ct. 929, and attorney specialties and certifications, Peel, 496 U.S. 91, 110 S.Ct. 2281. Advertisements were permitted to contain accurate, nondeceptive illustrations, even if such ads were "embarrassing or offensive" to some members of the population, or "beneath the dignity" of some members of the bar. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 648, 105 S.Ct. 2265, 2280, 85 L.Ed.2d 652 (1985). The Court has also recognized that an attorney's First Amendment right to advertise necessarily includes the right to tailor the content of the ad to persons with specific legal problems. Id. Speaking for a unanimous Court in R.M.J., 455 U.S. at 203, 102 S.Ct. at 937, Justice Powell summarized the standards applicable to lawyer advertising:

Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information.... Even when communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served.

The Court has permitted prohibition of an attorney's right to advertise only in the limited class of circumstances where state interests are strong and the potential harm of nonregulation severe. For example, the Court has permitted prohibition of in-person solicitation of accident victims on the grounds that such solicitation exerts an impermissible pressure not present in public advertisements. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Where the in-person solicitation is by a non-profit organization, however, the danger of undue influence is minimized and outweighed by the value of the information and the right to free speech. In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978).

The Court has also ruled that targeted direct-mail solicitation of accident victims and their families in the "immediate aftermath of accidents" is subject to state regulation. In Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995), the Court allowed the state to require that lawyers await the passage of a thirty day period of "special vulnerability and private grief," before communicating with victims about the possibility of bringing suit. The Court reiterated that regulation of commercial speech was subject to intermediate scrutiny under the traditional framework of Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), namely that the government must show that its regulation directly and materially advances a substantial state interest and is "narrowly drawn." Florida Bar, 515 U.S. at 621-25, 115 S.Ct. at 2375-76. In so doing, the Court expressed no intention to abridge previously-recognized First Amendment advertising rights outside the accident victim context. "Nearly two decades of cases have built upon the foundation laid by Bates," noted the Court. "It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection." Id. at 623, 115 S.Ct. at 2375.

III.

Against this backdrop, we have little difficulty in concluding that the Maryland law implicates First Amendment interests--perhaps most significantly the interests of criminal and traffic defendants in receiving information about legal...