Ohio law on bail-bond solicitation upheld

Tuesday, March 27, 2012

An Ohio law that prohibits the soliciting of bail bonds on courthouse and jail grounds does not violate the First Amendment, a state appeals court has ruled.

Debra Henneke challenged the constitutionality of the law in the course of defending her bail-bond license. The Ohio Department of Insurance revoked her license and imposed a $105,000 fine for her alleged repeated violations of the anti-solicitation rules. Investigators testified that in the course of three months they saw Henneke solicit people, including an investigator, for bail bonds in court hallways.

The ODI notified Henneke in December 2009 of the alleged violations. After the penalties were imposed, Henneke appealed to the Clermont County Court of Common Pleas, which upheld the punishment in May 2011.

Henneke then appealed to the Ohio Court of Appeals, contending that the law infringed upon her commercial free-speech rights and was too vague. Additionally, she claimed the department had selectively enforced the law against her.

On March 12, the Ohio appeals court rejected her free-speech claims in In Re Henneke. The appeals court evaluated the law under the test for commercial speech regulations articulated by the U.S. Supreme Court in Central Hudson Gas & Electric v. Public Service Commission of New York (1980).

Under the Central Hudson test, the basic requirement for allowable commercial speech is that it concern lawful activity and be truthful and not misleading. The government can prohibit false and misleading commercial speech. If the speech passes that threshold, then if it wishes to regulate it the government must show that it has substantial interests in doing so, and that the regulation directly and materially advances the government’s substantial interests and is narrowly tailored.

The Ohio court first determined that bail solicitation constitutes commercial speech because it fits the Supreme Court’s definition as “speech which does no more than propose a commercial transaction.” The appeals court then noted that speech about bail bonds is lawful and nonmisleading.

But the state Department of Insurance argued that the law advanced two substantial interests: protecting the judicial process and protecting the public. The appeals court recognized both, noting the “importance of maintaining the integrity of the judiciary and its ability to effectively administer justice.” It also found that “because arraignments are often a source of anxiety and distress for citizens, [the state] has a substantial interest in protecting those who are emotionally vulnerable from the undue influence of bondsmen.”

The court then proceeded to the “directly and materially advance” prong of the Central Hudson test. Numerous witnesses — including bail bondsmen, ODI investigators, court clerks and a municipal court judge — provided anecdotal evidence of how bail-bond solicitation can disrupt court. One ODI investigator testified that he saw “rowdiness and fighting in court hallways.” A bail bondsman also testified he saw a woman and a bail bondsman get into a fight. A municipal court judge testified that in-court solicitation tended to disrupt arraignments.

Relying on this evidence, the appeals court held that “the statute provides an important buffer between citizens and bail agents by allowing individuals to exit the courtroom, collect themselves, and depart courthouse or detention center grounds before engaging the services of a bail bondsman.”

The appeals court also decided that the statute was narrowly tailored — the final prong of the Central Hudson analysis. Henneke had argued that there were less speech-restrictive alternatives, including (1) contempt proceedings; (2) court orders to stop disruptive action; (3) license revocation; (4) refunding of unfair bonds; and (5) law enforcement and/or court security presence.

However, the appeals court found the law narrowly tailored because it was a limited ban on solicitation – bail bondsmen may still solicit individuals once they are off courthouse or jail property. The regulation “does not prevent bondsmen from standing inches from the courthouse or detention facility,” the appeals court said. The ruling also noted that bail bondsmen can advertise on television, radio, in newspapers and other media.

Rejecting the argument that the word “solicit” was too vague, the court said reasonable people people knew what it meant, having “fair notice and sufficient definition of the prohibited conduct.” And it said Henneke had failed to submit sufficient evidence that she was the victim of selective enforcement.

Henneke also questioned the severity of her punishment, but the appeals court said that although the punishment was “undoubtedly high,” she had engaged in “abhorrent behavior.”

Bob Newman, attorney for Henneke, told the First Amendment Center Online today that he would appeal the ruling.