Opinion
Civil Action No. 04-1952 Section: "E" (3).
November 18, 2004
ORDER AND REASONS
Plaintiff Kirtland Speaks, D.C. ("Dr. Speaks") filed this motion pursuant to Fed.R.Civ.P. 65. Dr. Speaks seeks a preliminary injunction to prohibit the application and enforcement of Louisiana Revised Statutes 37:1743 and Title 46 Part 27, § 307(H) of the Louisiana Administrative Code ("LAC"), which prohibit Dr. Speaks, and/or anyone acting for and on behalf of Dr. Speaks, from soliciting by telephone prospective patients who may be in need of chiropractic treatment, including specifically persons who have recently been involved in a motor vehicle accident. The motion was submitted on the briefs on September 15, 2004. For the reasons that follow, the motion is denied in part and granted in part.
BACKGROUND
Dr. Speaks is licensed by the Board of Chiropractic Examiners in Louisiana. He plans to open a practice in Kenner, Louisiana. In order to solicit prospective patients, Dr. Speaks intends to employ telemarketers to telephone individuals who have recently been involved in motor vehicle accidents. The telemarketers will use names and telephone numbers obtained from publicly available motor vehicle accident reports.
Dr. Speaks' direct telemarketing plan is prohibited by La.R.S. 37:1734, which provides as follows:
A. A healthcare provider or person designated, contracted, or paid by the healthcare provider, shall not directly solicit by phone or mail, patients or potential patients who, because of their particular circumstances are vulnerable to an 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 healthcare provider to have recently been involved in a motor vehicle accident.
(2) When a person is known to the healthcare provider to have recently been involved in a work-related accident.
(3) When a person is known to the healthcare provider to have recently been injured by another person or as a result of another person's actions.
In Gregory v. Bd. of Chiropractic Examiners, 608 So.2d 987 (La. 1992), the Louisiana State Supreme Court struck the words "or mail" from the statute.
In addition, LAC 46, part XXVII, § 307(H), Professional and Occupational Standards for Chiropractors, Professional Conduct, provides as follows:
H. Computer-generated or live, unsolicited telephone canvassing to prospective new patients is prohibited.
The Louisiana Board of Chiropractic Examiners (the "Board") has the exclusive authority to administer the laws and regulations governing the licensing of chiropractors and the practice of chiropractic. Gregory v. Bd. of Chiropractic Examiners, 608 So.2d 987, 988 (La. 1992). Dr. Speaks filed a Complaint for Declaratory Judgment and Injunctive Relief against the members of the Board in their official capacity seeking to enjoin the enforcement of these statues, and attacking their constitutionality. He claims that the regulations are an unconstitutional restriction on his right to free speech guaranteed by the First Amendment to the United States Constitution, made applicable to the State of Louisiana through the Fourteenth Amendment, and Article I, Sec. 7 of the Louisiana Constitution of 1974. He argues that the existence of and the threat of enforcement of these restrictions are impeding and deterring him from practicing his profession in Louisiana.
Defendants do not challenge plaintiff's standing to bring this action.
ANALYSIS
A preliminary injunction is a remedy that should be imposed only in extraordinary cases. Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). In order to obtain injunctive relief, a plaintiff must show all four of the following prerequisites: (1) that he has a substantial likelihood of success on the merits; (2) that a substantial threat of irreversible injury will result to plaintiff without relief; (3) that the threatened injury outweighs any harm to the defendant; and (4) that granting the relief requested will not disserve the public interest. Id.I.
The Court begins with the question of whether Dr. Speaks has a substantial likelihood of success on the merits of his constitutional claim. Commercial speech is undoubtedly protected from unwarranted governmental regulation by the First Amendment, as applied to the states through the Fourteenth Amendment.Central Hudson Gas Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562, 100 S.Ct. 2343, 2349 (1980).A.
The Board initially argues that the restrictions imposed by the statutes are valid time, place and manner regulations of commercial advertising. It cites Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1930 (1976), for the proposition that such restrictions may be imposed provided (1) that they are justified without reference to the content of the regulated speech, (2) that they serve a significant governmental interest, and (3) that in so doing they leave open ample alternative channels for communication of the information. Defendants' opposition memorandum ("Opp. Memo.") at p. 3. The Board argues that the regulation banning direct telephone solicitation of prospective patients is "content neutral" because the State does not disagree with the message, but simply regulates the manner in which the message is delivered. Id. at p. 4. The argument misses the mark.
In Virginia State Board of Pharmacy, the challenged Virginia statute prohibited any state licensed pharmacist from publishing prices for prescription drugs. The Supreme Court did not analyze the statutory prohibition under the "time, place or manner" analysis, but simply observed that "[w]hatever may be the proper bounds of time, place, and manner restrictions on commercial speech", the Virginia statute, which singled out only speech of a particular content for a blanket prohibition, plainly exceeded those bounds. Id.
In Consolidated Edison Co. v. Public Service Commission of New York, 100 S.Ct. 2326 (1980), the Supreme Court explained time, place, or manner restrictions as follows:
Thus, the essence of time, place or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals. No matter what its message, a roving sound truck that blares at 2 a.m. disturbs neighborhood tranquility.
. . . . But when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited "merely because public officials disapprove the speaker's views." As a consequence, we have emphasized that time, place, and manner regulations must be "applicable to all speech irrespective of content."Id. at 2332 (citations omitted). Under the language of the statute and regulation at issue here, Dr. Speaks could, at any time, telephone a person who has recently been involved in a motor vehicle or work-related accident to discuss the weather, politics, or anything else, but he may not solicit that person as a patient of his professional chiropractic services. The statute is clearly directed at the content of Dr. Speaks' message.
B.
The Constitution "accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."Central Hudson, 100 S.Ct. at 2350. Content based restrictions on commercial speech are analyzed under the intermediate standard set forth in Central Hudson. Bailey v. Morales, 190 F.3d 320, 323 (5th Cir. 1999). If the commercial communication is not deceptive, misleading, or related to unlawful activity, then the state must assert a substantial interest to be achieved by the restrictions, the restriction must directly advance the state interest involved, and the restriction must be "narrowly drawn" to extend only as far as the governmental interest it serves. Id. at 323; Central Hudson, 100 S.Ct. at 2350-51. Finally, "[i]t is well established that 'the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.'" Edenfield v. Fane, 113 S.Ct. 1792, 1800 (1993) quotingBolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20 (1983).
In Bd. Of Trustees of State Univ. of N.Y. v. Fox, 109 S.Ct. 3028, 3033 (1989), the Supreme Court observed that the application of the Central Hudson test was "substantially similar" to the application of the test for validity of time, place and manner restrictions.
At the outset, Dr. Speaks declares that his telemarketers will "use a prepared script which is truthful, non-deceptive and conforms in all respects to the requirements of the Federal Trade Commission's Telemarketing Sales Rules." Speaks' Declaration ("Decl.") ¶ 6, attached to his complaint. Accepting his declaration as accurate, Dr. Speaks marketing plan is entitled to the level of constitutional protection accorded to commercial speech. Dr. Speaks argues that his challenge to the constitutionality of the statutes will likely succeed under theCentral Hudson intermediate standard because the restrictions he challenges are unconstitutionally arbitrary and overbroad.
1.
The Board asserts that the State's interests are to protect the privacy of its citizens, to reduce unnecessary medical treatment, to reduce insurance costs, and to protect citizens from possible overreaching by health care providers' attempting to influence people to seek medical aid. Board's Opp. Memo., p. 6. The text of La.R.S. 37:1743 states that its intent is to protect "patients or potential patients who, because of their particular circumstances are vulnerable to an undue influence" from directly targeted telephone solicitation from a healthcare provider. La.R.S. 37:1743A(1)-(3). The text of LAC 46, part XXVII, § 307(H), does not include a declaration of the government's interest, and the Board does not offer any other than that offered for La.R.S.37:1743.
The Board's memoranda offer no arguments in support of its purported interests in reducing unnecessary medical treatment and reducing insurance costs. Accordingly, the Court does not address the validity of these stated governmental interests. Hurstell v. Clement, 2000 WL 1100387 *3 (E.D.La.), citing Eldredge v. Martin Marietta Corp., 207 F.3d 737, 742 n. 5 (5th Cir. 2000) (finding that issues presented but not adequately briefed are considered to be abandoned).
The United States Supreme Court has recognized the State's interest in protecting the well being, tranquility, and privacy of the home, Carey v. Brown, 447, U.S. 455, 471, 100 S.Ct. 2286, 2296 (1980), and protecting the unsophisticated, injured, or distressed lay person from overreaching, undue influence, intimidation, fraud, and other vexatious conduct. Ohralik v. Ohio State Bar Assn., 98 S.Ct. 1912, 1921 (1978); Edenfield, 113 S.Ct. at 1799. Both statutes meet the first element of theCentral Hudson analysis.
2.
Although "mere speculation or conjecture" will not satisfy the State's burden to demonstrate that "the harms it recites are real" and that the challenged restrictions materially and directly alleviate those harms, Bailey, 190 F.3d at 323 (citingEdenfield, 113 S.Ct. 1792), the State can satisfy its burden "based solely on history, consensus, and 'simple common sense'", Id. (citing Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995)).Dr. Speaks argues that the State has offered no evidence that the alleged harms it claims to protect against are "real", or that the restrictions at issue will actually alleviate those harms to a material degree. Dr. Speaks supports his argument with two declarations stating at length his altruistic motives for wishing to quickly reach potential patients who have recently been injured and declaring that many accident victims need immediate chiropractic treatment to avoid pain and further injury. He claims that they will be disadvantaged if he is not allowed to solicit them by telephone within twenty-four to forty-eight hours after their injury.
See Speak's Declaration attached to his complaint, and Supplemental Declaration attached as Exhibit "A" to his Reply Memorandum.
The Board argues that Dr. Speak's declarations are selfserving, and that he stands to reap great personal gain from his telemarketing plan. According to the Board, it is that pecuniary self interest that raises the risk of overreaching and undue influence when unsolicited professional advice is used to entice lay persons into a medical consultation. Board Opp. Memo. p. 7.
a.
Dr. Speaks asserts that "[i]nvasion of privacy is not a significant concern", quoting Edenfield at 776, because the prospective patients need only to terminate the call to protect their privacy. Dr. Speaks also argues that the statute is not necessary because the privacy rights of Louisiana citizens are adequately protected by the national do-not-call list and its Louisiana counterpart.
First, in Edenfield, the plaintiff was a CPA who wished to make unsolicited calls to business executives at their business to arrange a personal meeting to propose a business arrangement. Dr. Speaks' telemarketers will be calling the homes of lay persons who have been recently injured to solicit business for his medical services. Second, he assumes that every individual who does not wish to be disturbed at home has registered with both do-not-call lists and that anyone not registered on those lists must welcome unsolicited calls from telemarketers. The Court can just as easily assume otherwise. The do-not-call lists require a reasonably knowledgeable and motivated individual to take repeated assertive action in order to "opt-out". Dr. Speaks further argues that even those individuals who are not on the do-not-call lists can still protect their privacy by screening their calls with caller ID, or by simply hanging up. Again, Dr. Speaks assumes that most individuals will have caller ID (an extra paid service of the telephone company), or will simply hang up on a telemarketer. The Court again assumes otherwise.
b.
Dr. Speaks next argues that, even conceding that direct telephone contact carries the risk of undue influence, "there is no support that such risks definitely will occur if such contact is allowed". Speaks' Memo at pp. 13; Speaks' Supp. Decl. ¶ 12. In his Supplemental Declaration, he declares that the telemarketers he employs will use a prepared script that will "reduce any possibility that the telemarketers might attempt to . . . in any way coerce or exercise undue influence over any prospective patient." Id. at ¶ 6, ¶ 7. Additionally, the telemarketer will tape a "concluding summary" of the telephone call, id. at ¶ 8, and will follow rules which Dr. Speaks will "strictly enforce", including that the telemarketer "shall not deviate from the script." Id., Rule "d". During the scripted telemarketing call, a prospective patient will have at least six different occasions to decline the offered chiropractic services without incurring any obligation. Id. at ¶ 11.
Finally, Dr. Speaks argues that, in his experience, telephone solicitations are far more effective in reaching potential patients than advertising by mail, because "such contacts and methods of solicitation do not serve the same purpose." Reply Memo, p. 20. The special benefit of direct telephone solicitation, Dr. Speaks explains, is that it "not only gives an opportunity to tailor his message to the needs of the person contacted, but it allows prospective patients an opportunity to explore and ask about the particulars of the services that are best suited to them." Id. at p. 21; Decl. ¶ 9.
It is precisely that benefit of targeted telephone solicitation described by Dr. Speaks that suggests the opportunity for overreaching and undue influence inherent in his marketing plan. If the individual prospective patient receives a solicitation "tailored to his needs", and is expected to "explore and ask about" the particular services best suited to him, the telemarketer cannot be expected to follow a script, and can be expected to ad lib as to the particular medical condition and treatment needs of the particular prospective patient on the telephone. The fact that the prospective patient will have no less than six opportunities to decline the offered chiropractic services suggests a persistence by the telemarketer (and the script) designed to wear down the resistance on the prospective patient. Dr. Speaks does not explain how his telemarketers will be paid. If they are to be paid a commission based on the number of successful contacts rather than by the hour or for each call, successful or not, then they, as well as Dr. Speaks, have a financial stake in their persistence, which lends itself to overreaching.
Finally, Dr. Speaks argues that because the statutes do not prohibit immediate contact by insurance adjusters with persons injured in automobile accidents, people with inadequate or no health insurance are at risk of being taken advantage of "by the at-fault driver's" adjuster. Supp. Decl. at ¶¶ 20, 21.
The rule prohibiting direct communication with the victims of accidents also presents a serious threat to recovery for the injuries from the "at-fault" insurer. If an accident victim delays treatment for his or her injuries for any length of time, an insurance claim adjuster is likely to reject the claim. As noted in DeShaw, Colossus: What Every Physician Needs to Know, (2004): "Treatment delays destroy cases. Period. Delay in treatment past two days after a collision raises a red flag. . . . Delay in treatment of greater than 30 days raises the suspicion of fraud . . ." p. 105.
Decl. ¶ 29; Supp. Decl. ¶ 22. Dr. Speaks clearly anticipates payment for his services by the presumably "at-fault" insurer.
Dr. Speaks argues that it is in his interest to not offend the prospective patients because they will not accept an offered consultation if he has offended them. He argues that the telemarketing solicitation he proposes is different from the in-person solicitation in Ohralik because the script can be reviewed and the summary of the call can be heard. Moreover, he argues that the State's interests can be protected without the statute because an offended potential patient can complain to the Board, and the Board can listen to the recorded summary of the call.
Unlike direct mail solicitation, oversight of in-person or telephone solicitation is nearly impossible short of an absolute ban because such solicitation is "not visible or otherwise open to public scrutiny." Shapero v. Kentucky Bar Assn., 108 S.Ct. 1916, 1922 (1988) (citing Ohralik, 98 S.Ct. at 1924). Since it is up to each telemarketer to tape a summary of the substance of each call, he or she controls the content of the summary and it is in the telemarketer's interest to conceal offensive or overreaching tactics. The Supreme Court observed in Shapero, "[i]n assessing the potential for overreaching and undue influence, the mode of the communication makes all the difference." 108 S.Ct. at 1922. In his concurring opinion in theGregory case, Justice Lemmon stated the problem as follows:
The particular problem in this case is that the use of unsolicited professional advice to entice clients into a consultation raises the same risks of undue influence and overreaching as in-person solicitation because of the professional's pecuniary self-interest that prompted the advertising. . . . . Imposing unsolicited professional advice on a layman who appears to need particular professional services misleads the victim as to the quality of and need for those services. Because of the susceptible position of the recipients, such advice implicates or leads to many of the evils of in-person solicitation. The primary pecuniary motive for the advice undermines the professional judgment that the victim has the right to expect from the professional health care provider.Gregory, 608 So.2d at 994. Both challenged statutes meet the second Central Hudson requirement.
3.
To show that the restrictions are narrowly tailored, the State need only show a reasonable "fit" between the legislature's ends and the means chosen to accomplish those ends, that is, that the scope of the legislation is "in proportion to the interest served." Bailey, 190 F.2d at 324, (citing Went For It, 115 S.Ct. 2317 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 109 S.Ct. 3028 (1989)).
Dr. Speaks argues that even if the Board's asserted interests are substantial in the abstract, that does not mean that a blanket prohibition serves that interest, citing Edenfield v. Fane, 113 S.Ct. at 1800 (1993). He posits that "[b]road prophylactic rules in the area of free expression are suspect."Edenfield, 113 S.Ct. at 1803-04 (quoting NAACP v. Button, 83 S.Ct. 328, 340 (1963)).
The Edenfield case is distinguishable from the case at bar. Fane was a CPA licensed to practice in the State of Florida. In his prior practice in New Jersey, Fane generated business by making unsolicited telephone calls to the executives of small or medium sized businesses and arranging personal meetings so he could explain his services and expertise. In Florida, however, the Board of Accountancy had a comprehensive rule that prohibited CPA's from engaging in any direct, personal solicitation of business. Id. at 1796. The only question before the Supreme Court was whether the complete ban on the solicitation itself was unconstitutional. The Court held that, in that case, it was.Id. at 1797.
The Supreme Court began its analysis by observing that in the "commercial marketplace", which provides a forum where ideas and information flourish, "the general rule is that the speaker and the audience, not the government, assess the value of the information presented." Id. at 1798. It cautioned, however, that commercial speech is "'linked inextricably' with the commercial arrangement that it proposes, so the State's interest in regulating the underlying transaction may give it a concomitant interest in the expression itself." Id. (citingOhralik, 98 S.Ct. at 1919) (other citations omitted). The Court looked at the context in which the issue of a blanket ban on a particular commercial solicitation arose. It instructed that "the constitutionality of a ban on personal solicitation will depend on the identity of the parties and the precise circumstances of the solicitation." Id. at 1802.
The Edenfield Court distinguished the circumstances presented in that case from those presented in Ohralik. In Ohralick, a lawyer challenged the Ohio Bar Association's ban on "soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent."Edenfield, 113 S.Ct. at 1802 (quoting Ohralik, 98 S.Ct. at 1915). Ohralick had solicited as a client a young accident victim while she was hospitalized in traction, then used his representation of her to solicit her friend who had also been injured in the accident. Ohralick, 98 S.Ct. at 1915-16. TheOhralik Court made it clear that a preventative rule was justified in situations "inherently conducive to overreaching and other forms of misconduct." Edenfield, 113 S.Ct. at 1802 (citing Ohralik, 98 S.Ct. at 1923).
Dr. Speaks next asserts that this Court must follow Fifth Circuit precedent established in Innovative Data Systems v. Morales, 990 F.2d 217 (5th Cir. 1993). In that case, the Fifth Circuit struck down a Texas statute that Dr. Speaks describes as "identical" to La.R.S. 37:1743. Texas argued that the State had a substantial interest in promoting ethical standards in its licensed professionals, preventing fraud and misrepresentation by professionals, and protecting the public from unnecessarily inflated insurance rates. Id. at 221. The Fifth Circuit agreed that these are substantial governmental interests, but concluded that the means by which Texas was attempting to achieve its goals was fatally flawed because "[a] total ban on the use of lawfully obtained, public information to contact any person who was recently involved in a motor vehicle accident or who has been the victim of a crime is too broad a prohibition to prevent the perceived evil." Id.
The challenged Texas statute stated as follows:
Sec. 14a. The Texas Board of Chiropractic Examiners may refuse to admit persons to its examinations and may cancel, revoke or suspend licenses of place licencees upon probation . . . for any one or more of the following causes:
. . . .
17. If, when uninvited, a licensee or person designated, contracted or paid by licensee directly canvasses, drums, secures or solicits by phone, mail or in person patients or potential patients who, because of their particular circumstances are vulnerable to an 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 by the licensee to have recently been involved in a motor vehicle accident;
(2) When a person is known by the licensee to have recently been involved in a work-related accident; or
(3) When a person is known by the licensee to have recently been injured by another person or as a result of another person's actions.
Tex. Rev. Civ. Stat. Ann. art. 4512b(14(a)(17) (West Supp. 1992) (quoted in Innovated Data Systems, at 219.
Dr. Speaks also cites Bailey v. Morales, 190 F.3d 230 (5th Cir. 1999), in support of his argument. After theInnovative Data System decision, Texas again attempted regulate solicitation by professionals by amending the Texas Penal Code to prohibit chiropractors and other professionals from soliciting employment in person or by telephone from individuals who have a special need for chiropractic and other professional services. The plaintiffs were chiropractors who, prior to the amendment of the Code, had solicited clients by engaging in the following activities: (1) visiting senior citizen centers to speak to the elderly about the benefits of chiropractic care; (2) contacting employers to ask them to refer injured workers for chiropractic care; (3) employing telemarketers to call victims of accidents to inform them of the benefits of chiropractic care; and (4) informing accident victims at the scene of an accident that the chiropractor had witnessed about the benefits of chiropractic care. Id. at 322. The plaintiffs argued that the amended Code criminalized their marketing activities. Id. The State asserted its interests in individuals' privacy and protection from overreaching and undue influence. Id. at 323. The Court held that the broad sweep of the plain language of the statute, proscribing conduct that is not offensive as well as conduct that is or may be offensive, "plainly indicates that the statute is not reasonably tailored" and is therefore constitutionally unacceptable as applied to chiropractors. Id.
In its pertinent parts, the challenged statute stated:
A person commits an offense if, with intent to obtain an economic benefit the person . . . (2) solicits employment, either in person or by telephone, for himself or for another[.] 1997 Tex. Sess. Law Serv. 750 (H.B.) 1327) (amending Tex. Penal Code Ann § 38.12(1)(2) (Vernon's, WESTLAW through TX LEGIS 750 (1997)).
Under the act, "soliciting employment" means:
to communicate in person or by telephone with a prospective client or a member of the prospective client's family concerning professional employment within the scope of a professional's license, registration, or certification arising out of a particular occurrence or event, or series of occurrences or events, or concerning an existing problem of the prospective client within the scope of the professional's license, registration, or certification, for the purpose of providing professional services to the prospective client, when neither the person receiving the communication nor anyone action on that person's behalf has requested the communication. The term does not include a communication initiated by a family member of the of the person receiving a communication, a communication by a professional, who has a prior or existing professional-client relationship with the person receiving the communication, or communication by an attorney for a qualified nonprofit organization with the organization's members for the purpose of educating the organization's members to understand the law, to recognize legal problems, to make intelligent selection of legal counsel, or to use available legal services. The term does not include an advertisement by a professional through public media.Id., § 1 (amending Tex. Penal Code Ann. § 38.01(11)), as quoted in Bailey, 190 F.3d at 321 n. 2.
The Board argues that La.R.S. 37:1743 is not comparable to the Texas statute, citing Gregory v. Bd. of Chiropractic Examiners, 608 So.2d 987 (La. 1992). In that case, several chiropractors challenged La.R.S. 37:1743 as an infringement on their freedom of commercial speech. 608 So.2d at 988. Prior to the enactment of the statute, the plaintiffs had engaged in direct mail solicitation of patients recently involved in vehicular accidents. They sought a declaration that the ban on direct mail solicitation was unconstitutional. The State asserted the same interests as it asserts in this case. The Louisiana Supreme Court reasoned that, although telephone solicitation is in-person solicitation and a total ban of such solicitation may be permissible, "abuses can be controlled and mistakes can be prevented by less restrictive means than a blanket ban on direct mail solicitations which are targeted at recent accident victims." Id. at 993. The Court struck the words "or mail" from the statute. Id.
Neither statute challenged here prohibits general advertising by, for instance, newspapers, billboards, flyers, or, sinceGregory, direct mail solicitations of recently injured individuals. The Texas statute addressed in Innovative Data Systems banned not only telephone solicitation of recently injured individuals, but all solicitation, including direct mail solicitation. The statutes at issue here do not sweep so broadly as to criminalize, as the statute addressed in Bailey, otherwise acceptable marketing tactics directed at groups or individuals who may be generally or specifically in need of chiropractic care.
Nevertheless, Dr. Speaks argues that the restrictions at issue are not narrowly tailored because they ban all unsolicited telephone canvassing to any patient or prospective new patient, whether injured in an automobile accident or not. Although La.R.S. 37:1743 does not have a time limit, its plain language prohibits only telephone solicitation of "especially vulnerable" individuals, specifically, those recently injured in a vehicular accident, work-related accident, or by the actions of another person. The Court finds that the restriction on commercial speech imposed by La.R.S. 37:1743 is narrowly tailored to achieve the State's interests.
The Administrative Code is another matter. That statute does impose a prophylactic ban on all unsolicited telephone canvassing to prospective new patients. As Dr. Speaks points out, he could not call a personal friend, relative, or acquaintance that he knows, for instance, to have arthritis or to have been injured in a fall at home, without risking loss of his license to practice. Although contact with patients who already have some sort of prior relationship with a chiropractor does not appear to be prohibited, the ban is too broad to withstand even the intermediate level of constitutional scrutiny of restrictions on commercial speech.
CONCLUSION
Because the Court finds that Dr. Speaks does not have a substantial likelihood of success on his constitutional claim as to La.R.S. 37:1743, it is not necessary for the Court to address the remaining prerequisites for issuance of a preliminary injunction, nor the arguments relating to the issue of access to accident reports.The Court further finds that Title 46, part XXVII, § 307(H) of the Administrative Code of Louisiana is overly broad in its ban of all unsolicited telephone canvassing of prospective new patients and is therefore an unconstitutional restriction on commercial speech. As the Supreme Court has made clear, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."Ingebretson v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996). Moreover, the Court finds no harm to the Board nor any disservice to the public in granting a preliminary injunction barring enforcement of Title 46, part XXVII, § 307(H) of the Administrative Code of Louisiana.
Accordingly,
IT IS ORDERED that plaintiff Kirtland Speaks' motion for a preliminary injunction is DENIED at to Louisiana Revised Statute 37:1743, and is GRANTED as to Title 46, part XXVII, § 307(H) of the Administrative Code of Louisiana, Professional and Occupational Standards for Chiropractors, Professional Conduct.