By David L. Hudson, Jr.

A Texas law prohibiting professionals from soliciting business from prospective clients violates the commercial speech rights of chiropractors, ruled the U.S. Court of Appeals for the Fifth Circuit.

The 1997 law broadly defined "soliciting employment" to include communicating in person or by telephone with a prospective client or prospective client's family members after a "particular occurrence or event" or concerning an existing problem of the prospective client within the scope of the professional's services.

Three chiropractors -- Mark Bailey, Todd Boyd, and Curtis Cook -- challenged the law in federal court in 1997, arguing that the law violated their commercial 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, employing telemarketers to call accident victims, 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, interests used to justify the 30-day ban on attorney solicitation letters in the 1995 U.S. Supreme Court decision Florida Bar v. Went For It, Inc.

A U.S. District Court in 1998 upheld the constitutionality of the law. On appeal, the Fifth Circuit in Bailey v. Morales reversed in its Sept. 16 opinion, finding that the law violated the First Amendment.

The Fifth Circuit analyzed the law under the familiar multi-part Central Hudson test. Relying on Florida Bar v. Went For It, Inc., the court said the state had substantial interests in protecting privacy rights of citizens and the reputations of professionals. However, the 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.

Citing the accountant solicitation case Edenfield v. Fane, the Fifth Circuit noted that a governmental body must rely on more than "mere speculation or conjecture" and "must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree."

The state conceded that it relied on "common sense" rather than data or empirical evidence to demonstrate the law would directly and materially advance its interests in protecting privacy and reputational interests. The court distinguished Florida Bar by noting that there, the Florida Bar did submit a 106-page study of anecdotal evidence to justify its need for the solicitation ban.

The Fifth Circuit also determined that the anti-solicitation law violated the last part of the Central Hudson test -- the basic requirement that the law be drafted narrowly. The judges found that the law 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."

The court noted that the legislature could have imposed time limits on solicitation, such as the 30-day rule in Florida Bar, rather than a permanent ban. The court also noted that the law applied to more than just the target group of accident victims.

Because the law failed the last two prongs of the Central Hudson test, the Fifth Circuit declared the act "unconstitutional as applied to chiropractors."

Martyn Hill, the attorney representing the chiropractors, said the Texas attorney general's office had indicated to him they would not appeal the decision.