Speaks v. Kruse

• Decision Date: 29 March 2006
• Docket Number: No. 05-30054.,05-30054.
• Parties: Kirtland SPEAKS, D.C., Plaintiff-Appellant, v. Mark B. KRUSE, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Glenn D. Manceaux, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Kelly B. Faircloth, in her official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Patrick S. Clawson, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; William P. Fey, Jr., in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; John L. Murphy, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; R. Buckley Vanbreemen, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

445 F.3d 396

Kirtland SPEAKS, D.C., Plaintiff-Appellant, v. Mark B. KRUSE, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Glenn D. Manceaux, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Kelly B. Faircloth, in her official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; Patrick S. Clawson, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; William P. Fey, Jr., in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; John L. Murphy, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners; R. Buckley Vanbreemen, in his official capacity as a duly appointed member of the Louisiana Board of Chiropractic Examiners, Defendants-Appellees.

No. 05-30054.

United States Court of Appeals, Fifth Circuit.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

James F. McCarthy, III (argued), Katz, Teller, Brant & Hild, Cincinnati, OH, Ernest E. Svenson, Gordon, Arata, McCollam, Duplantis & Eagan, New Orleans, LA, for Speaks.

Charles Henry Braud, Jr. (argued), Baton Rouge, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Chiropractor Kirtland Speaks appeals the district court's denial of his motion for a preliminary injunction against the enforcement of provisions of Louisiana law regulating solicitation of prospective patients. We vacate and remand with instruction to grant the requested preliminary injunction.

I

Dr. Kirtland Speaks is a chiropractor licensed by the Louisiana State Board of Chiropractic Examiners ("the Board"). Dr. Speaks is employed in Arlington, Texas but intends to relocate his practice to Kenner, Louisiana.¹ There he plans to employ telemarketers to solicit people recently involved in car accidents, using names and telephone numbers obtained from publicly available accident reports.

Dr. Speaks contends that the telemarketers will follow without deviation a prepared script containing only truthful, non-deceptive information, tape concluding summaries of all telephone conversations, record all numbers called, and call no numbers listed on national or local "do-not-call" lists.

The parties agree that the marketing plan would violate two provisions of Louisiana law. LA. ADMIN. CODE tit. 46, § 307(H) states that "[c]omputer-generated or live, unsolicited telephone canvassing to prospective new patients is prohibited." LA. REV.STAT. ANN. § 37:1743 provides in relevant part that:

A. A health care provider [such as a chiropractor] ... shall not directly solicit by phone or mail, patients or potential patients who, because of their particular circumstances, are vulnerable to undue influence. Circumstances in which patients or potential patients may be considered to be vulnerable to undue influence include but are not limited to:

(1) When a person is known to the health care provider to have recently been involved in a motor vehicle accident.

(2) When a person is known to the health care provider to have recently been involved in a work-related accident.

(3) When a person is known to the health care provider to have recently been injured by another person or as a result of another person's actions.²

In July of 2004, Dr. Speaks filed a complaint in federal district court in Louisiana against members of the Board in their official capacity. The complaint sought a declaratory judgment that the two restrictions violated the First Amendment, a preliminary injunction under Federal Rule of Civil Procedure 65 enjoining enforcement of the restrictions, and a permanent injunction enjoining the same. Applying the Central Hudson³ test for restrictions on commercial speech, the district court granted a preliminary injunction barring enforcement of LA. ADMIN. CODE tit. 46, § 307(H)⁴ and refused to enjoin LA.REV. STAT. ANN. § 37:1743. Only Dr. Speaks appeals.

II

The Board does not challenge standing and we pause only to insure its presence.⁵ Standing to challenge the constitutionality of a penal statute or the like requires "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there [must be] a credible threat of prosecution thereunder."⁶

We are convinced that Dr. Speaks has standing to bring his claim. He formally alleges an intent to relocate and is currently licensed in Louisiana and practicing in an adjacent state. He has developed a business plan and expressed an unchallenged intent to follow it if he succeeds in this case. This is sufficient.

III

"Although the ultimate decision whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion, a decision grounded in erroneous legal principles is reviewed de novo."⁷ Because the lower court's denial of the motion for an injunction against the enforcement of § 37:1743 turned on a mixed question of law and fact,⁸ we review the denial de novo.

A preliminary injunction should issue if the movant establishes:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.⁹

Only the first element is at issue in this appeal because the Board does not challenge the others.

IV

Restrictions on commercial speech are analyzed under the framework of Central Hudson.¹⁰ The government may ban deceptive commercial speech and commercial speech related to illegal activity. "If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed." First, "[t]he State must assert a substantial interest to be achieved by restrictions on commercial speech." Second, "the restriction must directly advance the state interest involved." Third, "if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive."¹¹ The Board does not challenge Dr. Speaks's assertion that § 37:1743 is not aimed at deceptive speech or illegal activity.

The Board claims substantial state interests in protecting the privacy of its citizens and protecting citizens from healthcare providers who overreach and exert undue influence.¹² The parties spar over whether the district court should have considered the former since the statute's stated interest is only the latter. We do not decide whether the court should have considered both interests because we conclude that, even if they are both considered,¹³ § 37:1743 fails the third prong of Central Hudson because they can be served as well by a more limited restriction.

Under the third prong of Central Hudson, the Board must show that § 37:1743 is narrowly tailored — that the means are in proportion to the interests they purport to serve.¹⁴ Dr. Speaks suggests several alternatives to the State's chosen means of preventing undue influence, such as prohibiting false or misleading advertising during a telephone call, requiring disclosure of particular information during a call, submitting a written script and tapes of all calls to the Board, and requiring retention of names and numbers called. He points to OHIO ADMIN. CODE. § 4734:9-02 (2005), a restriction requiring much of what he suggests, as an example of a constitutionally permissible alternative. Finally, he points to the absence of a time limitation in Louisiana's statute. The Board replies that the Supreme Court upheld similar rules preventing potentially overbearing solicitation in Ohralik v. Ohio State Bar Association¹⁵ and Florida Bar v. Went for It, Inc.¹⁶ We turn to these cases.

Ohralik was a pre-Central Hudson case refusing to strike down a bar of in-person solicitation by attorneys, not the less problematic telephone solicitation. More apt is Went for It, upholding a rule prohibiting attorneys from soliciting accident victims by targeted mail following an accident. But that rule had a thirty-day time limitation. The Board points to Capobianco v. Summers,¹⁷ a recent case in which the Sixth Circuit held that a telemarketing rule similar to the one here was narrowly tailored. And again the State would ignore that it addressed a regulation of contact for a limited period. Capobianco explicitly distinguished an earlier unpublished decision holding a similar statute unconstitutional because it had no time limitation: "Chief among the reasons for our [prior] decision was the fact that the statute contained no time limit at all on the restriction of access to accident victims."¹⁸ This court has followed a similar path in Bailey v. Morales, striking down a statute with a broader sweep than the statute here. We emphasized there the lack of a time restriction.¹⁹

Sensing the difficulty of its position, the Board contended at oral argument that preventing solicitation of prospective clients only when they are "vulnerable to undue influence" functions as a time limitation. The argument is that it prohibits solicitation only when necessary and, theoretically, could allow solicitation sooner than a firm time limitation. We are unpersuaded. The term "vulnerable to undue influence" is undefined. The Board urges that the three subsections under § 37:1743(A) define those terms, but those subsections merely provide non-exclusive examples of situations in which a prospective client "may be considered to be vulnerable to undue influence." The uncertainty inherent in the statutory term "undue influence" leaves the seller of services uncertain of when he may call. It is this chilling...