Court wrangle continues over Florida law forbidding attorney solicitation

Wednesday, December 23, 1998

A case in Florida could determine the constitutionality of a state law
banning all forms of attorney advertising related to automobile accident

In State v. Falk, Florida officials contend that attorney Steven Falk
violated a state law by unlawfully soliciting to represent an individual
injured in a car accident.

The law provides that “it is unlawful for any attorney to solicit any
business relating to the representation of persons in a motor vehicle
accident for the purpose of filing a motor vehicle tort claim or a claim for
personal injury protection benefits.”

However, Falk and his attorney, Alan Weinstein, contend that the charges
should be dismissed for several reasons, including violation of First
Amendment free-speech rights.

Weinstein told “It is very
clear that this statute unconditionally bans all forms of attorney
advertising that pertain to auto accidents. This is a blanket prohibition on
commercial speech.”

In court documents Weinstein argues that “an attorney’s right to advertise
basic legal services constitutes commercial speech that is entitled to some
First Amendment protection.”

“The outright prohibition (mandated by the law) … does nothing more than
deprive those injured individuals of the opportunity to become knowledgeable
of an attorney’s qualifications and their potential legal rights,” Weinstein

A trial court agreed with Falk and Weinstein and ruled the statute

However, earlier this month a state appeals court ruled that before it could
determine whether the statute violated the First Amendment, it must know
exactly “what act or acts” Falk had allegedly violated.

According to the appeals court, the only First Amendment challenge that can
be made to a statute involving commercial speech is an “as applied”
challenge, which questions the constitutionality of the statute as applied
to the litigant’s specific acts.

The appeals court refused to allow Falk and Weinstein to attack the statute
on grounds of the overbreadth doctrine. Under the overbreadth doctrine, a
statute can be invalidated — even when the litigant’s own activities
are not constitutionally protected — if the statute prohibits
constitutionally protected activities.

“The appeals court erred in not allowing a facial challenge to this law
under the overbreadth doctrine,” Weinstein said.

However, assistant attorney general Michael Niemand said the appeals court
made the correct ruling.

“My reading of the court’s opinion is that the statute is facially
constitutional, because the only challenge allowed is an as-applied
challenge,” he said.

“If there is any valid application of a statute involving commercial speech,
then it is facially constitutional,” Niemand told “There are valid applications of this
statute, because the U.S. Supreme Court has held that direct, in-person
solicitation can be prohibited.”

Niemand said the court of appeals’ opinion meant that the district attorney
would have to refile charges specifying exactly what actions Falk took in
violation of the anti-solicitation statute.

Weinstein said he would first seek a rehearing before the full appeals
court. If that fails, he will then appeal to the Florida Supreme Court and,
if necessary, the U.S. Supreme Court, he said.

“This case presents serious constitutional issues,” Weinstein said.

“That is the nature of the game,” responded Niemand. “I expected [Weinstein]
to take it up to the Florida Supreme Court.”