United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 29, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30054
KIRTLAND SPEAKS, D.C.,
Plaintiff-Appellant,
versus
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.
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.
1
The only information we have concerning Dr. Speaks’s location and
intentions comes from his June 29, 2004 declaration filed in the court below.
The parties at oral argument conceded that the information contained in the
declaration is still valid.
2
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.
2
In Gregory v. Louisiana Board of Chiropractic Examiners, 608 So. 2d 987,
993 (La. 1992), the Supreme Court of Louisiana struck the words “or mail” from
the statute.
3
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557, 563-64 (1980).
3
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
4
The court concluded that the restriction imposed by LA. ADMIN. CODE tit.
46, § 307(H) was “too broad” to withstand the intermediate scrutiny imposed under
Central Hudson.
5
S.E.C. v. Forex Asset Management LLC, 242 F.3d 325, 328 (5th Cir. 2001)
(requiring this court to sua sponte investigate standing).
6
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
4
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
7
Women’s Med. Ctr. Of Nw. Houston v. Bell, 248 F.3d 411, 419 (5th Cir.
2001).
8
See Baby Dolls Topless Saloons, Inc. v. City of Dallas, Tex., 295 F.3d
471, 479 (5th Cir. 2002) (“Whether...free speech rights have been infringed is
a mixed question of law and fact [and t]he appropriate standard of review is de
novo.” (internal quotations omitted) (alteration in original)).
9
Concerned Women for Am., Inc. v. Lafayette County, 883 F.2d 32, 34 (5th
Cir. 1989).
10
See Central Hudson, 447 U.S. at 563-64. In its brief on appeal, the
Board cites Central Hudson but then argues that the Supreme Court has stated that
application of the Central Hudson test is functionally equivalent to application
of the test for time, place, and manner restrictions. It proceeds to perform
most of its analysis under the latter framework. As the district court correctly
observed, this is incorrect, and regulations on commercial speech are analyzed
under Central Hudson. See Fla. Bar v. Went for It, Inc., 515 U.S. 618, 623
(1995); Bailey v. Morales, 190 F.3d 320, 323 (5th Cir. 1999).
5
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
11
Central Hudson, 447 U.S. at 564.
12
The Board also claimed but abandoned below an interest in reducing
unnecessary medical treatment and insurance costs.
13
Privacy and the protection of citizens against undue influence are valid
substantial state interests. See Went for It, 515 U.S. at 624-25; Edenfield v.
Fane, 507 U.S. 761, 770 (1993); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447,
6
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
460 (1978); Bailey, 190 F.3d at 323.
14
See Bailey, 190 F.3d at 324. The State need not use the least
restrictive means. Id.
15
436 U.S. 447 (1978).
16
515 U.S. 618 (1995).
7
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
17
377 F.3d 559 (6th Cir. 2004).
18
Id. at 563. The court in Capobianco also stated that the imposition of
criminal sanctions in the prior case weighed against the constitutionality of the
rule in that case, noting that the rule in its case had no criminal sanction.
But the court’s focus was clearly on the time limitation, the more important of
the two differences.
19
190 F.3d 320, 323-25 (5th Cir. 1999). The restriction in Bailey
prohibited various professionals from soliciting in person, or by telephone or
indirect methods, prospective clients or their families for employment arising
out of a particular event or concerning an existing condition. See also
8
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 uncertainty
that supports the use of a bright line time-out period reflecting
the State’s judgment of when the risk of undue influence is too
great.20 The balance of interests required by the First Amendment
cannot be struck by use of such an open-ended stricture that
resists ex ante fixity.
We conclude that § 37:1743 is not narrowly tailored to the
Innovative Database Sys. v. Morales, 990 F.2d 217, 219 (5th Cir. 1993) (striking
down a statute forbidding contacting accident victims indefinitely).
20
See Innovative Database Sys., 990 F.2d at 219 (striking down as not
narrowly tailored a Texas statute preventing mail, telephone, or in-person
solicitation of patients “vulnerable to an undue influence” and providing three
examples of such patients).
9
State’s interest in preventing “undue influence.” It follows that
§ 37:1743 is not narrowly tailored to the State’s interest in
protecting privacy because the statute, by protecting privacy only
to the extent that the person called is “vulnerable to undue
influence,” suffers from the same defect of uncertainty in
protecting this interest.
The order denying the requested preliminary injunction is
VACATED. The case is REMANDED to the district court with
instruction to grant the preliminary injunction and for further
proceedings consistent with this opinion. VACATED and REMANDED.
10