Capobianco v. Summers

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Capobianco v. Summers, et al. No. 02-5756
ELECTRONIC CITATION: 2004 FED App. 0237P (6th Cir.)
File Name: 04a0237p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Douglas R. Pierce, KING & BALLOW,
FOR THE SIXTH CIRCUIT Nashville, Tennessee, for Appellant. Sue A. Sheldon,
_________________ OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellees. ON BRIEF: Douglas R. Pierce,
MICHAEL ANTHONY X Alexander J. Passantino, KING & BALLOW, Nashville,
CAPOBIANCO , D.C., - Tennessee, for Appellant. Sue A. Sheldon, OFFICE OF THE
- ATTORNEY GENERAL, Nashville, Tennessee, for
Plaintiff-Appellant, Appellees.
- No. 02-5756
-
v. > _________________
,
- OPINION
PAUL SUMMERS , Attorney - _________________
General, in his official -
capacity as Attorney General - ALICE M. BATCHELDER, Circuit Judge. Plaintiff-
of the State of Tennessee; - Appellant Michael Capobianco appeals the district court’s
- order denying a preliminary injunction to prevent the
TENNESSEE BOARD OF
- defendants from enforcing TENN. COMP. R. & REGS. § 0260-
CHIROPRACTIC EXAMINERS , - 2-.20(6)(a) (“the Rule”) during the pendency of this action
Defendants-Appellees. - challenging the Rule’s constitutionality. Because we
- conclude that the district court did not err in holding that the
N factors the court was required to consider in deciding this
Appeal from the United States District Court motion weigh in favor of the defendants, we affirm the order
for the Middle District of Tennessee at Nashville. of the district court.
No. 02-00063—Robert L. Echols, Chief District Judge.
BACKGROUND
Argued: December 10, 2003 Michael Anthony Capobianco, Doctor of Chiropractic,
(“Capobianco”) resides in Texas but has obtained a Tennessee
Decided and Filed: July 23, 2004 Chiropractic license and intends to practice in Tennessee. To
that end, Capobianco intends for his employees or agents to
Before: BOGGS, Chief Judge; BATCHELDER and solicit recent traffic accident victims in the State of Tennessee
SUTTON, Circuit Judges. to encourage them to seek chiropractic treatment at his
offices. A regulation promulgated by the Tennessee Board of
Chiropractic Examiners, the licensing board for all

1
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practitioners of chiropractic in Tennessee, restricts such whether the injunction would serve the public interest. See
solicitations. The pertinent portion of that regulation reads: Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994).
“Telemarketing or telephonic solicitation by licensees, their
employees, or agents to victims of accidents or disaster shall These factors are not prerequisites but instead must be
be considered unethical if carried out within thirty (30) days balanced. See Dayton Area Visually Impaired Persons, Inc.
of the accident or disaster, and subject the licensee to v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995). We have
disciplinary action pursuant to T.C.A. § 63-4-114.” TENN. repeatedly noted that the first factor is frequently dispositive
COMP. R. & REGS. § 0260-2-.20(6)(a) (2000). While in the First Amendment context. See Deja Vu of Nashville,
chiropractors are the only medical professionals subject to Inc. v. Metro Gov’t of Nashville & Davidson County, Tenn.,
such a rule, attorneys in Tennessee are similarly prohibited 274 F.3d 377, 400 (6th Cir. 2001); Connection Distrib. Co. v.
from soliciting accident victims within 30 days of an accident. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Newsom v. Norris,
888 F.2d 371, 378 (6th Cir. 1989). The district court found
Capobianco filed suit in district court, alleging that the Rule that Capobianco was unlikely to succeed on the merits of
is an unconstitutional restraint on speech as well as a violation either his First Amendment or Equal Protection challenge,
of equal protection because only chiropractors (among and that while Capobianco was unlikely to suffer irreparable
medical professionals) are subject to such a limitation, and harm in the absence of an injunction, the issuance of the
seeking declaratory and injunctive relief, attorneys’ fees and injunction was likely to cause harm to others and would not
costs. Capobianco moved for a preliminary injunction to serve the public interest.
prevent enforcement of the Rule during the pendency of this
litigation. The district court held oral argument on the motion I. Capobianco’s First Amendment Challenge.
and issued a memorandum opinion and order denying the
preliminary injunction. Capobianco timely appeals from that On appeal, the parties agree—as they did before the district
denial. court—that the standard governing Capobianco’s First
Amendment challenge to this rule regulating commercial
DISCUSSION speech is the intermediate scrutiny test set forth in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,
We review for abuse of discretion a district court’s order 447 U.S. 557 (1980). The Supreme Court summarized this
granting or denying a preliminary injunction. See Blue Cross test in Florida Bar v. Went For It, Inc., 515 U.S. 618, 624
& Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield (1995), in which the Court upheld the constitutionality of
Ass'n, 110 F.3d 318, 322 (6th Cir. 1997). A district court Florida Bar rules prohibiting attorneys from contacting,
abuses its discretion when it relies upon clearly erroneous directly or indirectly, accident victims or their relatives for the
findings of fact, improperly applies the governing law, or uses purposes of soliciting their business for a period of 30 days
an erroneous legal standard. See id. Generally, in following an accident. Central Hudson, the Court said,
considering a request for a preliminary injunction, the district permits the regulation of commercial speech “if the
court should consider (i) whether the movant is likely to government satisfies a test consisting of three related parts:
succeed on the merits; (ii) whether the movant will suffer First, the government must assert a substantial interest in
irreparable injury in the absence of an injunction; (iii) whether support of its regulation; second, the government must
the injunction will cause substantial harm to others; and (iv) demonstrate that the restriction on commercial speech directly
and materially advances that interest; and third, the regulation
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must be narrowly drawn.” Id. (internal quotation marks having been contacted immediately after accidents by
omitted). telemarketers on behalf of chiropractors; and articles from
scientific and business publications covering aspects of
The Florida Bar Court agreed with the Bar that the State telephone solicitation relevant to that carried out by
has a substantial interest in protecting “the privacy and chiropractors following accidents or disasters. We do not
tranquility of personal injury victims and their loved ones write on a clean slate with respect to such regulations. In
against intrusive, unsolicited contact by lawyers.” Id. at 624- Silverman, we reviewed the Tennessee statute that was the
25. Importantly, the Court recognized that the regulation at precursor to this Rule, which banned virtually all solicitation
issue there was designed as well to establish standards by chiropractors. That case included virtually the same
regulating the practice of law and protecting the reputation of anecdotal and periodical evidence presented in the case before
the legal profession, and states have a “compelling interest in us today, and we concluded that “the statute's prohibition on
the practice of professions within their boundaries, and . . . speech is an effective way of addressing the asserted
broad power to establish standards for licensing practitioners interests.” Id. at *4.
and regulating the practice of professions.” Id. (quoting
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)). The district court noted that in the proceedings on the
motion for a preliminary injunction, Capobianco did not
This circuit has held in an unpublished opinion that the challenge the Rule on the basis of the second part of Central
State of Tennessee has a substantial interest in “protecting the Hudson’s test. Nor does his brief on appeal present any
privacy of accident victims, preventing overreaching by cogent challenge based on that part. Capobianco does assert,
chiropractors and their agents and regulating the profession.” however, as part of his argument that the Rule fails the
Silverman v. Summers, 28 Fed. Appx. 370, 374, 2001 WL effectiveness requirement of Central Hudson because some
1671072 (6th Cir. 2001). The State of Tennessee asserts the chiropractors are not complying with it. Capobianco does not
same interest in support of the Rule at issue here, and the provide any authority for equating the existence of some
district court held that the State’s interest is substantial. We scofflaws with a regulation’s lack of efficacy. To the extent
find no substantive difference between the interest asserted in that Capobianco raises the second part of the Central Hudson
Florida Bar and that asserted here, and we hold that the State test, we hold that the State has satisfied it.
has satisfied the first part of the Central Hudson test.
Capobianco’s strongest argument is based on the third part
Next, we must address whether the Rule directly and of the Central Hudson test, namely, that, the Rule is not
materially advances the State’s substantial interest. In narrowly drawn because chiropractic therapy is most effective
Florida Bar, the Supreme Court reaffirmed the State’s burden if started within days of an injury and because the State has
to present data, by way of studies or anecdotal evidence, less restrictive ways of protecting the privacy of those victims
demonstrating the harms the regulation is designed to remedy and of policing the integrity of the profession than a 30-day
and the efficacy of the regulation in alleviating those harms. ban on contacting the victims. We agree with the district
See Florida Bar, 515 U.S. at 626. Here, the State presented court that when viewed in the light of the most germane
the district court with newspaper articles documenting both authority, namely Florida Bar and Silverman, the Rule is
the solicitation of accident victims by chiropractors or their sufficiently narrowly drawn to meet the third part of the
agents and the complaints and problems generated by those Central Hudson test.
solicitations; declarations of individuals complaining about
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Capobianco’s argument that because contacting victims sanction but simply subjects the licensee on whose behalf the
quickly is important to chiropractic treatment, a 30-day time solicitation is made to disciplinary action. See TENN. COMP.
limit is not narrowly tailored, was one of the points made by R. & REGS. § 0260-2-.20(6)(a). The Supreme Court has made
the dissenting opinion in Florida Bar. See Florida Bar, 515 it clear that in the context of commercial speech, Central
U.S. at 642-43 (Kennedy, J., dissenting). The district court Hudson’s “narrowly drawn” requirement does not mean that
concluded that the fact that Florida Bar involved a rule the regulation employs the “least restrictive means” to
governing attorneys and the Rule in this case governs achieve its end. Florida Bar, 515 U.S. at 632 (citing Board
chiropractors was not sufficient to distinguish this case from of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
Florida Bar in that respect. Indeed, as the district court (1989)). We think this time limit, identical to that in Florida
noted, the majority in Florida Bar must have considered and Bar, and this sanction, are sufficiently narrow to satisfy the
rejected that precise argument. Like the district court, we find third part of the Central Hudson test.
no reason to do otherwise.
We hold that the district court did not err in concluding that
In Silverman, we ultimately concluded that the statute Capobianco has demonstrated little likelihood of succeeding
failed the third part of the Central Hudson test because it on the merits of his First Amendment challenge to TENN.
impermissibly banned: COMP. R. & REGS. 0260-2-.02(6)(a).
Solicitation, in person or by live telephone contact, by II. Capobianco’s Equal Protection Challenge.
a licensee, or by an agent, servant, employee, or
independent contractor of a licensee, of a patient with Capobiano also challenges the Rule under the Fourteenth
whom a licensee has no family or prior professional Amendment’s Equal Protection clause. The Equal Protection
relationship; however, this shall not prohibit solicitation clause guarantees that no State shall “deny to any person
by targeted direct mail advertising or other forms of within its jurisdiction the equal protection of the laws,” a
written, radio, or television advertising; provided, that guarantee that the Supreme Court has characterized as a
the advertising does not involve coercion, duress, or requirement that “all persons similarly situated . . . be treated
harassment and is not false, deceptive or misleading. alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985) (citing U.S. CONST . amend. XIV.).
TENN CODE. ANN . § 63-4-114(5); see Silverman, 2001 WL Reviewing an equal protection challenge to a Kentucky
1671072 at *2. Chief among the reasons for our decision was statute prohibiting attorneys or their agents from soliciting
the fact that the statute contained no time limit at all on the accident victims within 30 days of their accidents, we held
restriction of access to accident victims by chiropractors or that if a regulation impacting speech is content-neutral such
their agents. See id. at *5. We also noted that the imposition as a time, place, or manner restriction, then we utilize
of criminal sanctions weighed against the constitutionality of intermediate scrutiny. See Chambers v. Stengel, 256 F.3d
the regulation. See id. 397, 401 (6th Cir. 2001). Commercial speech restrictions, we
said, will “survive constitutional assessment if the implicated
Here, Tennessee has corrected those problems. This Rule measure was narrowly fashioned to further a significant
limits the restriction on telemarketing or telephonic governmental interest.” Id. (quoting Grider v. Abramson, 180
solicitation of any accident victim to the 30-day period F.3d 739, 748 (6th Cir. 1999)). And we went on to hold that
following the accident. And the Rule contains no criminal “[b]ecause regulation of commercial speech is subject to
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intermediate scrutiny in a First Amendment challenge, it did not err in holding that Capobianco is unlikely to succeed
follows that equal protection claims involving commercial on the merits of his Equal Protection challenge to the Rule.
speech also are subject to the same level of review.” Id.
(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992)). The district court held that the other factors the court is
required to balance in reviewing a demand for a preliminary
We have already concluded that the Rule at issue here injunction weigh in favor of the State. Inasmuch as
survives First Amendment scrutiny because it satisfies the Capobianco does not present any argument with regard to
Central Hudson test, that is, the rule is narrowly drawn and these elements of the district court’s ruling, we will not
directly and materially advances a substantial government address them. Accordingly, we hold that the district court did
interest. See Central Hudson, 447 U.S. at 564-65; see also not abuse its discretion in denying Capobianco’s request for
Florida Bar, 515 U.S. at 624. In Chambers, we held that the a preliminary injunction.
Kentucky statute “is narrowly tailored to further substantial
governmental interests and, thus, comports with the Equal CONCLUSION
Protection Clause.” Chambers, 256 F.3d at 403. Because we
see no basis for concluding that Griders’s “significant For the foregoing reasons, we AFFIRM the judgment of the
governmental interest” and Central Hudson’s “substantial” district court.
government interest are materially different, we conclude that
this Rule also comports with the Equal Protection Clause.
But Appellant also argues that because medical doctors are
not subject to such a regulation, the state has failed to treat
them “alike.” The district court noted, and we agree, that
because there is no single instance in the record of a medical
doctor contacting an accident victim within 30 days of an
accident, or any complaint by someone with reference to such
a contact, if Tennessee were to enact a parallel regulation for
medical doctors, it “would be implementing a solution to a
nonexistent problem.” The Equal Protection Clause does not
require that the state treat all persons alike. It requires only
that the state treat similarly situated persons alike, and that
where the state distinguishes between classifications of
persons, the distinction must “have some relevance to the
purposes for which the classification is made.” Chambers,
256 F.3d at 401 (quoting Baxstrom v. Herold, 383 U.S. 107,
111 (1966)). Here, the State has distinguished between
medical professionals who have a record of engaging in a
particular conduct that generates complaints about matters in
which the state has a substantial interest, and medical
professionals who do not. We conclude that the district court