IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 98-41071
________________________
MARK BAILEY, et al.,
Plaintiffs
MARK BAILEY, DC; TODD BOYD, DC; CURTIS COOK, DC
Plaintiffs-Appellants
-vs-
DAN MORALES, Attorney General, State of Texas
Defendant-Appellee
____________________________________________
Appeal from the United States District Court
for the Southern District of Texas
____________________________________________
September 16, 1999
Before JONES, and WIENER, Circuit Judges, and LITTLE, Chief
District Judge.*
LITTLE, District Judge:
Mark Bailey, D.C. (“Bailey”) appeals the district court’s
ruling upholding the constitutionality of Texas House Bill
1327 (“H.B. 1327").1 We REVERSE the district court’s ruling
*
Chief Judge F.A. Little, Jr. of the Western District of Louisiana, sitting by designation.
1
In so doing, the district court found no violation of the first or fourteenth amendments.
with respect to the first amendment and declare the statute
unconstitutional as applied to chiropractors.
I.
This case arises out of the Texas Legislature’s attempt
to regulate the “cottage industry” of alleged ambulance-
chasing chiropractors and others that has emerged in Texas.
Touting the state interests of consumer privacy, protection
and the need to preserve the reputations of state-licensed
professionals, the Seventy-Fifth Texas Legislature passed H.B.
1327, which prohibits chiropractors and other professionals
from soliciting employment, in person or over the telephone,
from individuals who have a special need for chiropractic
services arising out of a particular occurrence (e.g., an
accident) or a pre-existing condition (e.g., having
arthritis).2 The act exempts from its prohibition
2
In its pertinent parts, H.B. 1327 states: “A person commits an offense if, with intent to obtain an economic benefit the
person . . . (2) solicits employment, either in person or by telephone, for himself or for another[.]” 1997 Tex. Sess. Law Serv. 750
(H.B. 1327) (amending Tex. Penal Code Ann. § 38.12(1)(2)) (Vernon’s, W ESTLAW through TX LEGIS 750 (1997)).
Under the act, “soliciting employment” means:
to communicate in person or by telephone with a prospective client or a member of the prospective client’s
family concerning professional employment within the scope of a professional’s license, registration, or
certification arising out of a particular occurrence or event, or series of occurrences or events, or concerning
an existing problem of the prospective client within the scope of the professional’s license, registration , or
certification, f or the purpose of providing professional services to the prospective client, when neither the
person receiving the communication nor anyone acting on that person’s behalf has requested the
communication. The term does not include a communication initiated by a family member of the person
receiving a communication, a communication by a professional, who has a prior or existing professional-client
relationship with the person receiving the communication, or communication by an attorney for a qualified
nonprofit organization with the organization’s members for the purpose of educating the organization’s
members to understand the law, to recognize legal problems, to make intelligent selection of legal counsel,
or to use available legal services. The term does not include an advertisement by a professional through
public media.
2
communications initiated by the injured or ill person or a
member of his family, communications by a chiropractor (or
other professional) who has an existing professional-client
relationship with the injured or ill person, and
communications by attorneys for qualified nonprofit
organizations for the purpose of providing legal aid or
education to the organization’s members. The act also
prohibits solicitation via “runners” or telemarketing and by
distributing promotional gifts and items.3 Finally, the act
proscribes the acceptance of employment obtained by way of the
prohibited solicitation.4
Plaintiffs Mark Bailey, D.C., Todd Boyd, D.C. and Curtis
Cook, D.C. are chiropractors licensed and doing business in
the state of Texas. Plaintiffs testified that, prior to the
passage of H.B. 1327, they engaged in the following
Id. § 1 (amending Tex. Penal Code Ann. § 38.01(11)).
Finally, H.B. 1327 defines “professional” broadly as “an attorney, chiropractor, physician, surgeon, private investigator,
or any other person licensed, certified, or registered by a state agency that regulates a health care profession.” Id. (amending Tex.
Penal Code Ann. § 28.01(12)).
3
A person commits an offense if, with intent to obtain an economic benefit the person . . .
(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client
money or anything of value to obtain employment as a professional from the prospective
client; (4) pays or gives or offers to pay or give a person money or anything of value to
solicit employment.
Id. § 2 (amending Tex. Penal Code Ann. §§ 38.12(a)(3),(4)); see also id. (amending Tex. Penal Code Ann. §§ 38.12(b)(1),(2)) (“A
person commits an offense if the person: (1) is . . . [a] chiropractor . . . and; (2) invests funds the person knows or believes are
intended to further the commission of an offense under Subsection (a).”).
4
“A person commits an offense if the person . . . (3) is a professional who knowingly accepts employment within the
scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection
(a).” Id. (amending Tex. Penal Code Ann. § 38.12(b)(3)).
3
activities: (1) visiting senior citizen centers to speak to
the elderly about the benefits of chiropractic care for the
alleviation of arthritis pain; (2) contacting employers to ask
them to refer injured workers for chiropractic care; (3)
employing telemarketers to call victims of accidents (whose
names are obtained from accident reports and work-related
injury reports) to inform them of the benefits of chiropractic
care; and (4) informing accident victims at the scene of an
accident that the chiropractor has witnessed about the
benefits of chiropractic care. The plaintiffs wish to
continue these activities, but they fear that H.B. 1327
outlaws their intended acts.
Plaintiffs filed suit on 4 September 1997, praying for
injunctive and declaratory relief on the grounds that H.B.
1327 violated their first and fourteenth amendment rights.
Without ever holding an evidentiary hearing or requesting the
submission of any evidence from the State of Texas (“the
State”), the district court upheld the constitutionality of
H.B. 1327. Agreeing with the suggestion of the State, the
district court held that visits to senior citizen centers and
requests for referrals from employers would not violate H.B.
1327, so long as neither the senior citizen centers nor the
employers received compensation from the chiropractors.
4
II.
Recognizing that first amendment problems present
intertwined questions of law and fact, Fifth Circuit precedent
prescribes de novo review of the district court order. See
Moore v. Morales, 63 F.3d 358, 361 (5th Cir. 1995); Lindsay v.
City of San Antonio, 821 F.2d 1103, 1107-08 (5th Cir. 1987);
Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir.
1983) (plurality opinion, Reavley, J.), cited with approval in
Lockhart v. McCree, 476 U.S. 162, 170 n.3 (1986).
III.
Barratry involves stirring up or exciting litigation,
some of which may be frivolous. At common law, a cause of
action could not lie without three such instances. See, e.g.
9 FL Jur. 2d § 4 (1997); 2 Witkin & Epstein, Cal. Criminal Law
(2d ed. 1988) § 1131, p. 1310. Statutes, however, may make
individual acts of solicitation an offense of barratry. See
Tex. Penal Code Ann. art. 290 (1901) (repealed 1917); 9 FL
Jur. 2d § 4; see also Susan Lorde Martin, Syndicated Lawsuits:
Illegal Champerty or New Business Opportunity?, 30 Am. Bus.
L.J. 485, 488-89 (1992).
The offense of barratry has an ancient lineage. In some
form, the doctrine of barratry existed in Greek and Roman
5
times, as well as in the Middle Ages in England. See Martin,
supra at 487. Moreover, the legal profession’s resistance to
solicitation derives from the Magna Carta-era traditions of
the English system of legal education. Beginning in the
thirteenth century, the Inns of Court trained wealthy young
men, who, needing no income, “viewed law practice as a public
service instead of a trade.” Katherine A. Laroe, Comment,
Much Ado About Barratry: State Regulation of Attorneys’
Targeted Direct-Mail Solicitation, 25 St. Mary’s L.J. 1513,
1519-20 (1994). This view even gave rise to an eighteenth
century law forbidding barristers from accepting fees, id. at
1520, much less soliciting them.
The State of Texas also has a long history with laws
against barratry: it enacted its first criminal barratry
statute in 1876. Id. at 1524. The barratry law has undergone
periodic updates, of which H.B. 1327 is the latest. And in
the years following 1876, the United States Supreme Court
explicitly acknowledged that the first amendment protects
commercial speech. Since solicitation of business by
chiropractors (even barratrous solicitations) is commercial
speech, this court must measure the prohibition imposed by
H.B. 1327 against the proscriptions of the first amendment.
6
Courts scrutinize commercial speech under the
intermediate standard set forth in Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
This standard grants states free rein to regulate false,
deceptive or misleading speech. See id. at 563-64. If the
state wishes to regulate truthful and non-deceptive speech
that merely proposes a commercial transaction, however, the
state bears the burden of proving the following: (1) the
state has a substantial interest, (2) the regulation directly
and materially advances, and (3) the regulation is “narrowly
drawn.” See id. at 564-65.
The State has asserted three interests in this case: (1)
forbidding solicitation where the sellers are likely to engage
in, and the prospective buyers are vulnerable to, undue
influence, intimidation, overreaching, or other vexatious
conduct; (2) protecting the privacy and tranquility of injured
people; and (3) upholding the reputations and public images of
the professionals licensed by the state. We accept this
showing as one that satisfies the Central Hudson standard,
since the Supreme Court has recognized each of these interests
as being substantial. See Florida Bar v. Went For It, Inc.,
515 U.S. 618, 624-25 (1995) (maintaining ethical standards in
state-licensed professions, privacy); Edenfield v. Fane, 507
7
U.S. 761, 770 (1993) (preventing fraud, maintaining ethical
standards, privacy); Ohralik v. Ohio State Bar Ass’n, 436 U.S.
447, 460 (1978) (maintaining ethical standards, preventing
vexatious conduct).
Despite its strong interests, however, the State has not
satisfied its burden of showing that H.B. 1327 materially and
directly advances them. The Supreme Court has established
that “mere speculation or conjecture” will not satisfy the
burden; “rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the
harms it recites are real and that its restriction will in
fact alleviate them to a material degree.” Edenfield, 507
U.S. at 770-71. This standard is by no means insurmountable:
the Supreme Court permits states to justify speech regulations
by “reference to studies and anecdotes pertaining to different
locales altogether, or even . . . based solely on history,
consensus, and ‘simple common sense.’” Went For It, 515 U.S.
at 628 (citations omitted). And yet, in Edenfield, the
Supreme Court held that the state of Florida had not carried
its burden when “[i]t present[ed] no studies[,] . . .[t]he
record [did] not disclose any anecdotal evidence[,] . . . [and
t]he only suggestion that a ban on solicitation might help
prevent fraud and overreaching . . . [was an] affidavit . . .
8
which contain[ed] nothing more than a series of conclusory
statements[.]” 507 U.S. 771.
Here, the State concedes that it relies on “common
sense,” not data or empirical evidence, to demonstrate that
H.B. 1327 directly and materially advances its interests. The
only other way it attempts to carry its burden is by citation
in its brief, as authority for its position, to the statements
of two House members made during the 19 March 1997 public
hearing about the bill. But these statements (which
constitute two conclusory opinions and one anecdote) are not
even part of the record, nor have they been introduced into
evidence. Therefore, the success of the State’s effort to
carry its burden on this prong depends on the plausibility of
the State’s insistence that in-person and telephonic
solicitation of injured or ill people by chiropractors is
“inherently conducive to overreaching and other forms of
misconduct.” Ohralik, 436 U.S. at 464. While speaking to
seniors at senior citizen centers and contacting employers
about injured workers5 are activities that do not seem
5
Though the district court held that H.B. 1327 would not proscribe these efforts, the plain language of the statute clearly
embraces speaking to seniors at a senior citizen center within its scope, and nothing within the statute suggests the existence of
an exception on the basis of whether the senior citizen center receives a fee from the chiropractor because the senior citizen center
would not be soliciting for the chiropractor.
Whether asking employers to refer injured workers falls within the statute is less clear. If the chiropractor pays the
employer, then the conduct clearly violates § 38.12(a)(4). If the chiropractor does not pay the employer, however, then the
chiropractor may not be “soliciting,” since the chiropractor is not speaking to the prospective client or a member of his family (unless
“client” is construed to include an employer who refers injured workers). The district court did not ratiocinate this issue at all; it
merely stated, summarily, that it agreed with the State that speaking to employers would not offend H.B. 1327 so long as the
9
inherently conducive to overreaching, nor likely to result in
provoking public ire toward chiropractors, “accident”
telemarketing and dispensing advice at accident scenes clearly
are undertakings imbued with potential for abuse. On balance,
however, such a broad ban lacking a time limit does not
directly and materially advance the State’s admittedly
important interests because it sweeps too many extraneous
activities within its purview.
Similarly, the State has not met its burden to show
narrow tailoring. On this third prong, all the Supreme Court
requires is “‘a “fit” between the legislature’s ends and the
means chosen to accomplish those ends,’ a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is
‘in proportion to the interest served’[.]” Went For It, 515
U.S. at 632 (quoting Board of Trustees of State Univ. of N.Y.
v. Fox, 492 U.S. 469, 480 (1989)). “[T]he ‘least restrictive
means’ test has no role in the commercial speech context.”
Id.
The State’s argument is merely a bald assertion that H.B.
1327 is a prophylactic rule and reasonably proportional to the
chiropractor did not pay the employer.
10
substantial state interests it serves. Yet two instances
belie the State’s claim. First, the plain language of H.B.
1327 proscribes such activities as speaking to seniors at a
senior citizen center about the benefits of chiropractic
treatment. Perhaps realizing that such breadth was
constitutionally unacceptable, the state conceded to the
district court that such conduct is not offensive, and the
district court held that the statute does not apply to that
activity. Essentially, the district court “cherry picked” its
way through the statute: it judicially created an exception--
unbidden by the language of the statute--to skirt the
constitutional infirmity.6 This plainly indicates that the
statute is not reasonably tailored.
Second, the part of H.B. 1327 that amends Texas Penal
Code § 38.12(a)(3) is overly broad as it makes no reference to
solicitation when it criminalizes otherwise innocent marketing
techniques. That section says: “A person commits an offense
if, with intent to obtain an economic benefit the person . . .
(3) pays, gives, or advances or offers to pay, give, or
advance to a prospective client money or anything of value to
6
Though courts should construe statutes to avoid constitutional infirmity, see United States v. Boerner, 505 F.2d 1064,
1067-68 (5th Cir. 1975), the district court’s interpretation seems to have exceeded the scope of “construing” and entered the
territory of “rewriting.”
11
obtain employment as a professional from the prospective
client.”
The State intimates that the breadth of this subpart
should not be troubling because this section does not regulate
speech and therefore would not implicate the first amendment.
We reject the State’s contention. In the Fifth Circuit, when
deciding whether particular conduct or actions constitute
speech, “we ask whether an intent to convey a particularized
message was present and whether the likelihood was great that
the message would be understood by those who viewed it.”
Cabrol v. Town of Youngsville, 106 F.3d 101, 109 (5th Cir.
1997) (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)); see
also Jones v. Collins, 132 F.3d 1048, 1054-55 (5th Cir. 1998).
Here, offering to give money or anything of value to obtain
employment in a professional capacity constitutes commercial
speech. Chiropractors engage in such conduct with an intent
to convey a particularized message: hire me, try my service.
Moreover, those who receive the money or anything of value are
likely to understand the message because rebates, free samples
and risk-free trials of products are common marketing tools.
Therefore, we find that § 38.12(a)(3) regulates speech, and we
now consider its scope and legitimacy.
12
In so doing, we conclude that this section is neither
reasonably tailored nor reasonably proportional to the harm
the State seeks to prevent. It is not limited to in-person or
telephonic solicitation of an injured or ill person; rather,
this section facially applies to any advertising, including
advertising via public media, that offers money or anything of
value (e.g., a free adjustment) to induce a client to try
chiropractic services. The section is not bounded by a time
limit (such as Went For It’s 30 day moratorium) or target
group (for instance, Went For It’s recent victims of
accidents). And the section criminalizes commercial speech
that is both unobjectionable and unquestionably protected by
the first amendment (e.g., a print advertisement offering a
free adjustment to anyone interested). This is not the first
time the State, in its zeal to prohibit “accident”
telemarketing by chiropractors, has cast its nets too broadly.
See Innovative Database Systems v. Morales, 990 F.2d 217, 220-
222 (5th Cir. 1993) (“A total ban on the use of lawfully
obtained, public information to contact any person who was
recently involved in a motor vehicle accident . . . is too
broad a prohibition to prevent the perceived evil.”).
Given the poor fit between means and ends, H.B 1327 is
unconstitutional as applied to chiropractors. We need not
13
here determine the purview and legitimacy of the statute as it
applies to other covered professionals. As the Court noted in
Edenfield, “the constitutionality of a ban on personal
solicitation will depend upon the identity of the parties and
the precise circumstances of the solicitation.” 507 U.S at
557.
IV.
If a statute is so vague that it does not afford
defendants fair notice of the proscribed conduct, then the
statute offends the due process clause of the fourteenth
amendment. See Stromberg v. California, 283 U.S. 359, 369
(1931) (“A statute which upon its face, and as authoritatively
construed, is so vague and indefinite as to permit the
punishment of the fair use of this opportunity [for free
political discussion] is repugnant to the guaranty of liberty
contained in the Fourteenth Amendment.”); see also United
States v. Lanier, 520 U.S. 259, 265 (1997); United States v.
Harriss, 347 U.S. 612, 617 (1954).
Bailey argues that H.B. 1327 is void for vagueness
because “it cannot mean what it says” and because law
enforcement officials and the judiciary will read exceptions
into the law. That the law cannot mean what it says does not
make it vague; here, for instance, what H.B. 1327 forbids is
14
clear, but also confounding in its scope. Similarly, the fact
that the law may be susceptible to differing constructions by
the judiciary and law enforcement officers does not create a
vagueness problem where, as here, the text of the law is
plain, though its breadth is unusual. The vagueness doctrine
is not a suitable vehicle for finding this statute
unconstitutional.
V.
Since H.B. 1327 neither advances the state’s interests
materially and directly nor is it narrowly tailored, we
REVERSE the district court’s ruling and declare that the act
is unconstitutional as applied to chiropractors.
REVERSED.
15