CINCINNATI (CN) — A group of chiropractors and a patient-referral service argued before the Sixth Circuit on Thursday that Ohio’s restrictions on contacting people involved in car accidents are unconstitutional infringements on commercial speech.
The health care providers sued Governor Mike DeWine and Attorney General Dave Yost last September, claiming the regulations — passed as part of the state’s 2020-2021 budget bill — violate their First Amendment rights.
Among other things, the legislation excludes telephone numbers of crime victims or those involved in motor vehicle accidents from the public record and prevents health care providers from contacting such individuals until 30 days after the crime or accident.
Under the regulations, which went into effect in October 2019, chiropractors and other medical professionals may solicit the prospective patients by mail in that 30-day period.
U.S. Magistrate Judge William Baughman Jr. denied the chiropractors’ motion for a preliminary injunction before the laws went into effect, and supported his decision with caselaw from neighboring states that had already implemented similar restrictions.
“The Sixth Circuit,” Baughman said, “has already held that states like Tennessee and Kentucky have a substantial interest in protecting privacy rights of accident victims and regulating professionals in the process by preventing overreach and fraud.”
The magistrate added, “The Sixth Circuit has also held that regulations of the type at issue here directly advance those substantial state interests. Finally, Ohio’s enactments are similarly narrow in focus like the solicitation limits in those states where the Sixth Circuit or the Supreme Court have upheld such limits.”
The chiropractors had urged Baughman to use a strict scrutiny test to analyze the constitutionality of the laws, but the magistrate cited prior cases involving similar restraints and applied intermediate scrutiny, including the 2015 Sixth Circuit case Chiropractors United for Research and Education LLC v. Conway.
“An abbreviated yet sufficient analysis has me simply examining the Kentucky solicitation statute, which the courts in Chiropractors United upheld using the Central Hudson intermediate scrutiny test,” Baughman wrote, also referring to a 1980 Supreme Court case. “Kentucky’s and Ohio’s statutes are similar in nature, scope, and purpose. They are, of course, not identical. How they regulate chiropractors’ commercial speech, though, is not sufficiently materially different as to require strict scrutiny for the latter but not the former.”
Attorney Paul Flowers argued on behalf of First Choice Chiropractic and the other plaintiffs before the Sixth Circuit on Thursday morning, and lamented the manner in which the Ohio Legislature passed the restrictions on his clients.
Flowers told the three-judge panel the bill was adopted “very hastily” in a matter of hours without any debate and was simply tacked on to the annual state budget bill.
“It’s a trick they do when they just want to slip something through,” the attorney said.
Flowers went on to describe the law as a prior restraint on his clients’ commercial speech that is both content and speaker-based, and argued that the magistrate judge lacked the evidentiary record necessary to deny his clients relief.
Attorney Samuel Peterson argued on behalf of and disputed his opposing counsel’s claims regarding the evidentiary record.
Peterson cited the 1995 U.S. Supreme Court case Florida Bar v. Went For It Inc., in which legal advertising was considered a form of commercial speech and granted limited protection under the First Amendment.
The attorney said Florida Bar allows for anecdotal evidence to be used in decisions on commercial speech and was a ruling against the necessity of a “weighty evidentiary record.”
He cited Baughman’s reliance on records of legislative sessions the year before the law was passed, and said there is “ample anecdotal evidence to support this restriction.”
Peterson also argued the Sixth Circuit’s own decision in the 2004 case Capobianco v. Summers supported Ohio’s restrictions on client solicitation. Capobianco involved a Tennessee restriction on chiropractors contacting people involved in car accidents, very similar to the one at issue in Ohio.
In his rebuttal, Flowers disputed both points made by Peterson.
“They have a smattering of second-hand complaints [against my clients],” the attorney said, “in a state of 11 million people.”
He went on to describe the restrictions involved in the Capobianco case as “much narrower” than the ones passed by in Ohio.
“You can’t say that what’s good for Tennessee is good for Ohio,” Flowers concluded.
The panel consisted of Senior U.S. Circuit Judge Richard Suhrheinrich, an appointee of George H. W. Bush, and U.S. Circuit Judges Julia Gibbons and John Bush, appointees of George W. Bush and President Donald Trump, respectively.
No timetable has been set for the court’s decision.
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