864 F.Supp. 1294 (N.D.Ga. 1994), 1 92-cv-1094, Speer v. Miller

Docket Nº:1 92-cv-1094
Citation:864 F.Supp. 1294
Party Name:Speer v. Miller
Case Date:August 10, 1994
Court:United States District Courts, 11th Circuit, Northern District of Georgia

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864 F.Supp. 1294 (N.D.Ga. 1994)

Robert H. SPEER, Jr., Plaintiff,


Zell MILLER and Michael Bowers, Defendants.

No. 1:92-cv-1094-RHH.

United States District Court, N.D. Georgia, Atlanta Division.

Aug. 10, 1994

As Amended on Denial of Reconsideration Sept. 19, 1994.

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Paul Christopher Munger, Atlanta, GA, for plaintiff.

Mark Howard Cohen and Stephanie B. Manis, Office of State Atty. Gen., Atlanta, GA, for defendants.


ROBERT H. HALL, District Judge.

This case is before the Court on Plaintiff's Motion for a Permanent Injunction 1 [2] and Defendants' Amended Motion to Dismiss [9], the Eleventh Circuit having vacated and remanded for reconsideration this Court's previous rulings on these motions. The Court held a reconsideration hearing on July 14, 1994, and now GRANTS Plaintiff's Motion for a Permanent Injunction and DENIES Defendants' Amended Motion to Dismiss. Accordingly, the Court PERMANENTLY ENJOINS Defendants from enforcing O.C.G.A. § 35-1-9.


Plaintiff Robert H. Speer, Jr., is an attorney licensed to practice law in Georgia. On May 7, 1992, he filed suit against Defendants Zell Miller and Michael Bowers, the Governor and Attorney General of Georgia respectively, seeking a permanent injunction prohibiting Defendants from enforcing O.C.G.A. § 35-1-9. 2 O.C.G.A. § 35-1-9 (hereinafter "the Georgia statute") provides:

(a) It shall be unlawful for any person to inspect or copy any records of a law enforcement agency to which the public has a right of access under paragraph (4) of subsection (a) of Code Section 50-18-72 3 for the purpose of obtaining the names and addresses of the victims of crimes or persons charged with crimes or persons involved in motor vehicle accidents or other information contained in such records for any commercial solicitation of such individuals or relatives of such individuals.

(b) The provisions of subsection (a) of this Code section shall not prohibit the publication of such information by any news media or the use of such information for any other lawful data collection or analysis purpose.

(c) Any person who violates any provision of subsection (a) of this Code section shall be guilty of a misdemeanor.

Plaintiff contends that this statute prevents him from gaining access to otherwise public records for use in soliciting clients. As a result, Plaintiff alleges, the statute violates his rights under the First and Fourteenth Amendments. In an Order dated September 25, 1992, this Court dismissed Plaintiff's first amendment claim for failure to state a claim upon which relief could be granted. Speer v. Miller, Civil Action No. 92-1094, slip op. p. 8 (N.D.Ga. September 25, 1992) (hereinafter "September Order") [10]. This Court, however, found that Plaintiff had stated a cognizable Fourteenth Amendment equal protection claim, but the Court declined to grant Plaintiff's motion for a preliminary injunction. Id. at pp. 9, 11.

In dismissing Plaintiff's First Amendment claim, the Court concluded:

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Plaintiff has failed to allege that the statute at issue infringes on his right to engage in commercial speech. Plaintiff is free to engage in all the commercial speech he wishes. He is free to solicit all the clients he wants. He simply cannot force the government to provide him with the names of individuals (and other information) to whom he wishes to direct his commercial speech.

Id. at p. 8. In finding that Plaintiff had stated a cognizable equal protection claim, the Court accepted Plaintiff's allegation that "he is similarly situated to the news media which is allowed to use information for commercial purposes, and yet Plaintiff is forbidden to use the identical information for commercial purposes." Id. at 9 (internal punctuation omitted).

In denying Plaintiff's motion for a preliminary injunction, this Court first noted that Plaintiff's equal protection claim alleged that the Georgia statute violated a fundamental right, namely his first amendment right to freedom of speech. Id. at 10. Equal protection claims premised on the alleged violation of a fundamental right require that courts apply a strict scrutiny analysis and uphold the challenged statute only if it's means are suitably tailored to serving a compelling governmental interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Having dismissed Plaintiff's first amendment claim, the Court rejected Plaintiff's equal-protection-fundamental-right theory, finding instead that the statute is merely an economic regulation, requiring only that it bear a rational relationship to some legitimate state purpose. September Order, p. 10. See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488-89, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) (setting forth the rational relationship test). The Court then concluded that Plaintiff was not likely to prevail on the merits of his equal protection claim and that the potential harm to Plaintiff from denying him an injunction did not necessarily outweigh the potential harm to Defendants from issuing the injunction. September Order, pp. 10-11.

On March 7, 1994, the Eleventh Circuit vacated this Court's September Order and remanded the matter for reconsideration. Speer v. Miller, 15 F.3d 1007, 1010-1011 (11th Cir.1994) (hereinafter " Speer "). The Eleventh Circuit provided the following analysis as explanation for its ruling:

A first amendment challenge is appropriate where a state prohibits the use of public records by one who wishes to engage in non-misleading, truthful commercial speech. See Innovative Database Systems v. Morales, 990 F.2d 217 (5th Cir.1993). Advertisements by lawyers fall within this protected category. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). Statutes that restrict commercial speech must directly advance a substantial government interest and the state bears the burden of justifying its restrictions. Shapero v. Kentucky Bar Assn., 486 U.S. 466, 472, 108 S.Ct. 1916, 1921, 100 L.Ed.2d 475 (198[8] ); Fane v. Edenfield, 945 F.2d 1514, 1518 (11th Cir.1991), aff'd, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993). A mere reading of this statute [O.C.G.A. § 35-1-9] indicates that it probably impinges upon Speer's commercial speech. Because of the procedures followed in the District Court, however, the state had no opportunity to develop its interest in the area.

Speer, 15 F.3d at 1010 (further commenting in a footnote that "[m]any of us might agree with the attempt by the Georgia legislature to upgrade the conduct of the state's lawyers but in today's world such is probably beyond its jurisdiction" and stating elsewhere in the Opinion that "it appears that Speer is likely to prevail on the merits...."). The matter is now back before this Court for reconsideration in keeping with the Eleventh Circuit's opinion.


I. Plaintiff's First Amendment Claim.

A. First Amendment Implication.

This Court must first determine whether O.C.G.A. § 35-1-9 implicates the First Amendment as a restriction on commercial

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speech. The Eleventh Circuit has made clear its opinion that it does. Each case cited in the above-quoted section of Speer's analysis concerned a statute or professional regulation restricting the use or dissemination of information. In Morales, the Fifth Circuit affirmed a lower court's ruling that two Texas laws violated the First Amendment. 990 F.2d at 221, 222. The first law provided that "[a] person who has possession of crime victim or motor vehicle information ... obtained from a law enforcement agency may not use the information [to] solicit business...." Id. at 219. The second law empowered the Texas Board of Chiropractic Examiners to assess professional penalties to any chiropractor who "canvasses, drums, secures or solicits by phone, mail or in person patients [who] are vulnerable to undue influence." Id. In Bates, the Supreme Court held that an Arizona Bar disciplinary rule which provided that a lawyer "shall not publicize himself ... as a lawyer through newspaper or magazine advertisements, radio or televisions announcements ..." violated the First Amendment. 433 U.S. at 355, 379, 382, 383, 97 S.Ct. at 2694, 2706, 2708, 2709. In Shapero, the Supreme Court held that a Kentucky Supreme Court rule providing that a lawyer "may not solicit professional employment from a prospective client ..." violated the First Amendment. 486 U.S. at 470-71, 108 S.Ct. at 1920-21. Finally, in Fane, the Eleventh Circuit affirmed a lower court's holding that a Florida law subjecting to disciplinary action any certified public accountant who engages in "direct in-person, uninvited solicitation of a specific potential client" violated the First Amendment. 945 F.2d at 1516, 1520. See also McHenry v. The Florida Bar, 21 F.3d 1038, 1041, 1045 (11th Cir.1994) (finding that a...

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