Pruett v. Harris County Bail Bond Bd.
| Decision Date | 28 August 2007 |
| Docket Number | No. 05-20714.,05-20714. |
| Citation | 499 F.3d 403 |
| Parties | Carl R. PRUETT; Scott Martin, Plaintiffs-Appellees-Cross-Appellants, v. HARRIS COUNTY BAIL BOND BOARD; Harris County, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Allen Furlow (argued), Thompson & Knight, Stacy Lynn Kelly, MacIntyre & McCulloch, Houston, TX, for Pruett and Martin.
Bruce S. Powers, Asst. Cty. Atty. (argued), George Andrew Nachtigall, Houston, TX, for Harris Cty. Bail Bond Bd. and Harris Cty.
Appeal from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING
Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.
In response to the Petition for Rehearing filed by the defendants, we withdraw the prior panel opinion in its entirety and substitute the following.
Two bail bondsmen challenged a Texas statute restricting solicitation of potential customers as a denial of their First Amendment rights. The district court agreed. Concluding that all but one of the restrictions violates the bondsmen's right to commercial speech, we affirm, reverse, and remand, all in part.
Bail bondsmen Carl Pruett and Scott Martin filed this § 1983 action against Harris County and the Harris County Bail Bond Board,1 challenging on various federal and state constitutional grounds, including the First Amendment, a Texas statute governing solicitation of customers, TEX. OCC. CODE § 1704.109 (2003). That statute provides:
(a) A board by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties to protect:
(1) the public from:
(A) harassment;
(B) fraud;
(C) misrepresentation; or
(D) threats to public safety; or
(2) the safety of law enforcement officers.
(b) A bail bond surety, an agent of a corporate surety or an employee of the surety or agent may not make, cause to be made, or benefit from unsolicited contact:
(1) through any means, including in person, by telephone, by electronic methods, or in writing, to solicit bonding business related to an individual with an outstanding arrest warrant that has not been executed, unless the bail bond surety or agent for a corporate surety has an existing bail bond on the individual; or
(2) in person or by telephone to solicit bonding business:
(A) that occurs between the hours of 9 p.m. and 9 a.m.; or
(B) within 24 hours after:
(i) the execution of an arrest warrant on the individual; or
(ii) an arrest without a warrant on the individual.
(c) This section does not apply to a solicitation or unsolicited contact related to a Class C misdemeanor.
The plaintiffs challenge subsection (b), which contains two prohibitions. Subsection (b)(1) prohibits any solicitation regarding an outstanding warrant, unless the subject of the warrant is a previous customer. Subsection (b)(2) restricts the time of solicitation after arrest, prohibiting solicitation in person or by phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a person has been arrested, either with or without a warrant. The statute does not prevent attorneys, law enforcement officials, or anyone else from alerting someone that he's the subject of an open warrant. Law enforcement officials frequently send letters to petty defendants giving notice of open warrants against them, hoping they'll turn themselves in.
Bondsmen use several methods to solicit business. One particularly useful tool is the Harris County Justice Information Management System (JIMS), a computer system accessible to the public through terminals and the Internet which provides, inter alia, names and addresses of persons arrested and subjects of arrest warrants. Given the public's ease of access to JIMS, Harris County waits 48 hours after an arrest warrant is issued to post the information about the warrant on JIMS, allowing law enforcement officers to execute the warrant first.
The district court granted the bondsmen's motion for summary judgment, holding the statute unconstitutional and enjoining its enforcement. It granted in part the plaintiffs' motion for fees, awarding them $50,000 plus $25,000 in the event of appeal. Harris County appeals the judgment, including the award of fees, and plaintiffs cross-appeal the award of fees, asking for more.2
The metaphor of political speech finding its place in the marketplace of ideas proved to be a powerful if inexact force, drawing speech in its myriad presentations under the umbrella of First Amendment protection — the force of the metaphor itself a validating testament to the power of an idea so strong as to invite confusion of metaphorical imagery with defining principle. And in 1975, with the Supreme Court's decision in Bigelow v. Virginia,3 speech in the marketplace of actual goods itself gained protection, albeit as "less valuable speech," termed "commercial speech." It signifies that commercial speech did not displace otherwise protected speech in gaining First Amendment protection. That a book or article is sold or a column is written for compensation does not eliminate its protection.4 In sum, commercial speech, with its lesser protection, is at bottom advertising. As the parties and the court below recognized, § 1704.109 is a restriction on commercial speech.
Restrictions on commercial speech are analyzed under the framework of Central Hudson.5 The government may ban misleading 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."6 First, "[t]he State must assert a substantial interest to be achieved by restrictions on commercial speech."7 Second, "the restriction must directly advance the state interest involved."8 Third, "if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive."9 We review the lower court's application of this test de novo.10
Before we apply Central Hudson to the two restrictions at issue, we address a fundamental dispute coloring much of the parties' arguments and the lower court's ruling. The plaintiffs argue that only evidence created before enactment of § 1704.109 and relied upon or cited by the legislature in passing it can be considered under Central Hudson. Consequently, they argue, because the legislative record behind § 1704.109 is bare, it cannot survive scrutiny. Harris County disagrees, offering testimony and affidavits introduced in the court below and arguing that Moore v. Morales11 relied upon testimony at trial in ascertaining the justification for a statute. The district court agreed with the plaintiffs, although it held that § 1704.109 failed scrutiny even considering Harris County's additional evidence.
Central Hudson does not require that evidence used to satisfy its strictures exist pre-enactment. Plaintiffs rely heavily on the statements in Edenfield v. Fane that a statute cannot be justified "by mere speculation or conjecture" and that "the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions."12 Those statements, however, only distinguish between rational basis review, under which a court can, and should if necessary, confect its own reasons to justify a statute, and Central Hudson review, under which a court can consider only the reasons proffered by the state. While with commercial speech the state need not demonstrate that its regulatory means were the least intrusive on protected speech,13 it must at least articulate regulatory objectives to be served. But that doesn't mean the state can proffer only reasons locatable in the legislative record. Indeed, in Moore, our most relevant case, the court's language shows that it considered post-enactment evidence in analyzing a Central Hudson claim.14 Even with a First Amendment doctrine calling for "intermediate scrutiny" such as regulation of sexually-oriented businesses, where the argument to disallow post-enactment evidence as justification for a statute has some logical purpose, we have specifically rejected the plaintiffs' contention that evidence of purpose must be drawn only from a contemporaneously generated legislative record. And there the threshold question is whether the legislative body is regulating protected activity or its effects.15 We consider the testimony and affidavits introduced by Harris County in the court below, as the district court did in the alternative.
We turn first to subsection (b)(1), which prevents solicitation regarding outstanding warrants unless the bondsman has a prior relationship with the party. Harris County concedes that the solicitations at issue are neither deceptive nor relate to illegal activity. Next, under the first prong of Central Hudson, Harris County asserts as substantial interests the diminishment of: 1) the flight risk for felony offenders and high-level misdemeanor offenders; 2) the risk of harm to officers, defendants, and bystanders when such defendants are arrested; 3) the risk of harm to victims, family members, or witnesses from retribution; and 4) the potential for destruction of evidence, interests alluded to in the statute itself.16 The district court found that these interests were substantial. We agree, although to the extent that Harris County itself notifies non-serious offenders of open warrants against them — and the evidence shows that Harris County does this regularly17— the interests are not substantial at all. Deferring that concern to the third prong, where it more easily fits, and assuming the interests are substantial in the abstract, we turn to the second prong.
Under the second prong, Harris County must show that (b)(1) directly advances these interests. Witnesses for Harris County testified that executing arrest warrants is dangerous, that maintaining the "element of surprise" is important in...
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