Chiropractors prevail in free-speech challenge of Texas anti-solicitation law

Monday, September 27, 1999

A Texas law prohibiting professionals from soliciting business from prospective clients violates the commercial free-speech rights of chiropractors, a federal appeals court has ruled.

The 1997 law defined “soliciting employment” as communicating in person or by telephone with a prospective client or prospective client's family members after a “particular occurrence or event” such as a car accident or on-the-job injury that would likely trigger the need for professional services.

Three chiropractors — Mark Bailey, Todd Boyd and Curtis Cook — challenged the law in federal court in 1997. They argued the law violated their commercial free-speech rights. The chiropractors said that, under the law, they could no longer engage in such business practices as visiting senior citizen centers to speak to the elderly about the benefits of chiropractic care and contacting employers to ask them to refer injured employees for chiropractic services.

The state said the law was necessary to protect citizens' privacy rights and uphold the reputation and public image of professionals.

A U.S. District Court in 1998 upheld the constitutionality of the law. On appeal, the 5th U.S. Circuit Court of Appeals in Bailey v. Morales reversed the lower court, finding that the law violated the First Amendment.

The 5th Circuit analyzed the law under the multipart test for examining regulations that impact on commercial speech established by the U.S. Supreme Court in the 1980 case Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y.

Under the Central Hudson test, the government can regulate misleading and false speech. However, if the speech concerns lawful activity and is not misleading, the government must show that (1) it has a substantial interest in regulating the speech; (2) the regulation directly and materially advances its substantial interest; and (3) the regulation is narrowly drawn.

The 5th Circuit said in its Sept. 16 opinion that the state had substantial interests in protecting privacy rights of citizens and the reputations of professionals. However, the appeals court determined that the law did not directly advance the state's interests and was not narrowly drawn.

The appeals court noted that the state did not rely on any “data or empirical evidence” to show that the anti-solicitation law would protect citizens' privacy or improve the public image of professionals.

The court noted that the Legislature could have imposed time limits on solicitation rather than a permanent ban.

The judges also found that the law was too broad and could be applied to actions that did not violate privacy rights, such as speaking to senior citizens about the benefits of chiropractic treatment.

The appeals court wrote: “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.”

Martyn B. Hill, attorney for the chiropractors, said that “the statute was clearly unconstitutional but fortunately the appeals court was more aware of the Constitution than the federal district court.”

Andrea Horton, spokeswoman for the Texas attorney general's office, said that the attorney general was reviewing the 5th Circuit's decision and no decision had been made on whether to appeal.