Moore v. Morales , 63 F.3d 358 ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20138
_____________________
MARY MOORE, ET AL.,
Plaintiffs-Appellees,
VERSUS
DAN MORALES, Attorney General, Et Al.,
Defendants,
DAN MORALES, Attorney General,
Defendant-Appellant.
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ADRIANE ANDERSON, ETC.,
Plaintiff-Appellee,
VERSUS
JOHN B. HOLMES, JR., ET AL.,
Defendants,
DAN MORALES, Attorney General,
Defendant-Appellant.
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DIRECT MAIL MARKETING, INC., ET AL.,
Plaintiffs-Appellees,
VERSUS
JOHN VANCE, ET AL.,
Defendants,
DAN MORALES, Attorney General,
Intervenor-Defendant-Appellant.
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INNOVATIVE DATABASE SYSTEMS, ET AL.,
Plaintiffs-Appellees,
VERSUS
DAN MORALES, ET AL.,
Defendants,
DAN MORALES,
Defendant-Appellant.
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DAVID O. CHAMBERS, ET AL.,
Plaintiffs-Appellees,
VERSUS
STEVEN HILBIG, ET AL.,
Defendants,
DAN MORALES,
Intervenor-Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-2170, c/w 93-2499, 93-2699, 93-2700 & 93-2701)
_____________________________________________________
(August 23, 1995)
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is the constitutionality of Texas' prohibiting
several groups ("attorney[s], chiropractor[s], physician[s],
surgeon[s], or private investigator[s] licensed to practice in this
state or any person licensed, certified, or registered by a health
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care regulatory agency of this state"), Tex. Penal Code §
38.12(b)(1) (1994), from direct mail solicitation to accident
victims or their families within 30 days after the accident. In
view of the Supreme Court's very recent holding in Florida Bar v.
Went For It, Inc., 115 S. Ct. 2371 (1995), we hold that, as to
attorneys, it is constitutional, and REVERSE; but, as to the other
groups, we REMAND for further proceedings.
I.
In 1993 the Texas legislature attempted, for the second time,
to limit the solicitation efforts of several groups: "attorney[s],
chiropractor[s], physician[s], surgeon[s], or private
investigator[s] licensed to practice in this state or any person
licensed, certified, or registered by a health care regulatory
agency of this state". Tex. Penal Code § 38.12(b)(1) (1994).1
Among other things, the 1993 provisions (1) prevented those groups
from direct mail solicitation to accident victims or their families
until the 31st day after the day of the accident (the 30-day ban);
(2) restricted access to accident reports for 180 days following
the accident; and (3) prevented direct mail solicitation of
criminal and civil defendants until the 31st day following the
initiation of legal proceedings. (The 1993 provisions also
provided a means whereby an accident report may indicate a victim's
1
Texas' first attempt to limit solicitation, which consisted of
a complete prohibition on the use of crime or accident reports for
the purpose of soliciting clients, was held by our court to be "too
broad a means of effectuating the intended purpose of the law".
Innovative Database Sys. v. Morales, 990 F.2d 217, 222 (5th Cir.
1993).
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desire to not receive solicitation letters, and prohibited
solicitation of individuals so indicating. The district court's
order did not address these provisions.)
Five actions, which were consolidated, challenged the 1993
provisions as unconstitutional under the First and Fourteenth
Amendments. The district court temporarily enjoined enforcement of
the provisions, and, following an expedited bench trial, found them
to be an unconstitutional hindrance of commercial speech.
II.
At issue is only one of the 1993 provisions: the 30-day ban on
solicitation of accident victims and their families. See Tex.
Penal Code § 38.12(d)(2)(A) (1994).
A.
First we reject the suggestion that the Texas Attorney General
lacks standing to maintain this appeal in his name for the State of
Texas. The Attorney General was a named party in three of the five
consolidated cases. Moreover, by statute, the State of Texas
requires that, when the constitutionality of one of its laws is
challenged, "the attorney general of the state must also be served
with a copy of the proceeding and is entitled to be heard". Tex.
Civ. Prac. & Rem. Code § 37.006(b); see also Baker v. Wade, 743
F.2d 236, 242 (5th Cir. 1984) (holding that Texas Attorney General
is presumptively adequate representative of State's interest when
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constitutionality of Texas law is challenged), rev'd on other
grounds, 769 F.2d 289 (5th Cir. 1985).2
B.
The direct mail solicitation that Texas seeks to regulate is
a form of commercial speech protected by the First Amendment.3
Therefore, pursuant to the Supreme Court's very recent holding in
Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995), the 30-
day ban, in order to withstand constitutional scrutiny, must
satisfy the three-prong test of Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980): (1) the State
must assert a substantial interest supporting the regulation; (2)
the regulation must directly and materially advance that interest;
and (3) the regulation must be narrowly drawn to advance that
interest. Prior to Florida Bar being rendered, the district court
2
Appellees' contention springs, in large part, from the claim
that the Attorney General has "no enforcement or other official
authority" under the challenged statutes. They rely on League of
United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir.
1993), cert. denied, 114 S. Ct. 878 (1994) where our en banc court
addressed the limitations on the power of the Texas Attorney
General to settle a matter against the will of the state officials
he was charged to represent. Id. at 840-43. Clements does not
support the notion that the Attorney General cannot appeal the
district court's judgment.
3
Commercial speech that is false or misleading, however, is not
entitled to such protection. Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. 557, 563-64 (1980). The State
concedes that, with the exception of Innovative Database Systems
(IDS) and the National Association of Accident and Injury Victims
(NAAIV), Appellees' commercial speech is not false or misleading.
In this connection, the State has urged that, even if the 30-day
ban is unconstitutional as to the other Appellees, IDS and NAAIV
are not entitled to that protection because they engage in false
and misleading speech. As discussed in part II.B.2., we do not
reach this question.
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held that Texas' 30-day ban failed each prong of this inquiry. We
first address the 30-day ban as to attorneys, then turn to the
other affected groups.
Along this line, Appellees insist that we review only for
clear error, pursuant to Fed. R. Civ. P. 52. But, as the district
court's opinion illustrates, findings of fact in the constitutional
free speech context are frequently informed by the relevant legal
landscape; questions of law and fact are easily intertwined.
Although a district court's findings of fact are normally
reviewed under the clearly erroneous standard, our court recognizes
the distinctive nature of fact-finding with respect to the
constitutionality of commercial speech regulations. E.g., Lindsay
v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987), cert.
denied, 484 U.S. 1010 (1988); Dunagin v. City of Oxford, 718 F.2d
738, 748 n.8 (5th Cir. 1983), cert. denied, 467 U.S. 1259 (1984).
See Lockhart v. McCree, 476 U.S. 162, 168 n.3 (1986). We review de
novo.
1.
Needless to say, as to attorneys, Florida Bar controls. At
issue was a Florida Bar rule imposing a 30-day ban on the
solicitation of accident victims and their families -- a regulation
nearly identical to the one in issue. 115 S. Ct. at 2374.
Applying the three-prong Central Hudson test, the Court held that
the rule was constitutional. Id. at 2376-81.
For the substantial interest prong, the Florida Bar offered,
inter alia, its interest in "protecting the privacy and tranquility
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of personal injury victims and their loved ones against intrusive,
unsolicited contact by lawyers". Id. at 2375. The Court had
"little trouble crediting [this] interest as substantial", noting
that its prior precedent has "consistently recognized that `[t]he
State's interest in protecting the well-being, tranquility, and
privacy of the home is certainly of the highest order in a free and
civilized society'". Id. at 2376. (quoting Cary v. Brown, 447 U.S.
455, 471 (1980)). The Court also noted that "a single substantial
interest is sufficient to satisfy Central Hudson's first prong".
Id. at n.1.
For the second prong, requiring proof that the regulations
directly and materially advance the State's interest, the Court was
persuaded that "the Florida public views direct-mail solicitations
in the immediate wake of accidents as an intrusion on privacy that
reflects poorly upon the profession". Id. at 2376. Distinguishing
prior precedent, the Court seized on the specific harm the Florida
Bar sought to eliminate: the invasion of privacy and accompanying
"outrage and irritation" associated with direct mail advertising to
recent accident victims and their families. See id. at 2377-79.
Finding the scope and nature of the interest presented by the
Florida Bar distinct from the claims made in prior cases before it,
the Court concluded that the second prong of Central Hudson was
satisfied. Id. at 2378-79.
Turning to the third, and final, prong, the Court noted that
the government need not employ the "least restrictive means" to
further its interest. Id. at 2379. Instead, that prong requires
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only that the regulation's restrictions reasonably fit the desired
objective. Id. That settled, the Court concluded that the Florida
Bar rule was "reasonably well-tailored to its stated objective of
eliminating targeted mailings whose type and timing are a source of
distress to Floridians". Id.
Texas, like the Florida Bar, has advanced the interest of
protecting the privacy of accident victims and their families.
Indeed, in almost all respects, Texas' position supporting the 30-
day ban as to attorneys essentially mirrors that of Florida Bar.
Nonetheless, Appellees maintain there are significant distinctions,
permitting us to affirm the district court's holding that Texas'
30-day ban is unconstitutional.4
Principally, Appellees contend that, unlike the record in
Florida Bar, the record developed by Texas cannot support finding
that its interests are substantial, or that its 30-day ban directly
advances them. We disagree. Florida Bar does not require an
overwhelming record in support of the 30-day ban. Rather, it
echoed prior precedent requiring only that there be more than "mere
speculation and conjecture", and that "a governmental body seeking
to sustain a restriction on commercial speech must demonstrate that
the harms it recites are real and that its restriction will in fact
4
Appellees assert that Florida Bar has no impact on this case,
maintaining that it did not involve a claim that the 30-day ban
constituted a content-based, discriminatory regulation. For
example, they claim that Texas' 30-day ban favors the speech of
insurance companies, to the detriment of attorneys and health care
professionals. This contention misses the mark. For content-based
commercial speech restrictions of this type, Florida Bar holds that
the Central Hudson test is the applicable standard.
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alleviate them to a material degree". Florida Bar, 115 S. Ct. at
2376. Informing our analysis of the sufficiency of the record is
the Court's observance in Florida Bar that, in Edenfield v. Fane,
113 S. Ct. 1792, 1801 (1993), where the Court struck down a
regulation on commercial speech because of an inadequate record,
there was "no evidence" in support of the regulation. 115 S. Ct.
at 2378. The Court readily distinguished Florida Bar from
Edenfield; we do the same here.
Before us is extensive evidence of the great number of
complaints associated with direct mail solicitation in general. As
to such solicitation within 30-days of an accident, experts for the
State testified that it can be detrimental to an accident victim
and his or her family. They testified further that the 30-day ban
would provide reasonable protection from many of these detrimental
effects.
There is also testimony from individuals that their receipt of
direct mail solicitation immediately following an accident outraged
them, invaded their privacy, and contributed to their emotional
distress. Those same individuals testified that they would have
been better able to cope with the intrusiveness of the solicitation
letters had they not received them until at least one month after
the accident. The State's evidence was further supported by the
co-chairman of the Houston Trial Lawyers' Association and the
author of the 1993 provisions; both testified to numerous
complaints of outrage and invasion of privacy regarding direct mail
solicitation.
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Based on Florida Bar, we find this evidence sufficient to
satisfy the first two Central Hudson prongs: Texas' stated interest
in protecting its citizens from the invasion of privacy is
substantial; solicitation within 30 days of an accident creates,
among other things, an invasion of privacy; and the 30-day ban
substantially alleviates this invasion.
Appellees next turn to the third prong of Central Hudson,
requiring a "fit" between the ends and means of the 30-day ban.
They note that Texas now has a system whereby accident victims may
indicate, on the accident report, their desire not to be contacted
through direct mail solicitation. Accordingly, Appellees claim the
30-day ban is more than is necessary to prevent unwanted contact
from attorneys. This argument fails on two counts -- one factual,
one legal.
As the State's evidence illustrates, often it is the accident
victim's family, not the victim, that the 30-day ban seeks to
protect. And, needless to say, when the victim dies, or is
otherwise unable to sign or understand an accident report, the
protection against unwanted solicitation is of no avail. In any
event, as noted in Florida Bar, the State is not required to employ
the least restrictive means in promoting its interest. 115 S. Ct.
at 2380. Again, based on Florida Bar and its similarity to this
case, we conclude that, as to attorneys, Texas' 30-day ban, like
the Florida bar rule, passes the third, and final, prong of the
commercial speech constitutional inquiry.
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2.
Finally, on behalf of the other licensed groups covered by the
statute, including, but not limited to physicians, surgeons,
chiropractors, and private investigators, Appellees seek to
challenge the 30-day ban. But, almost the entire thrust of the
case concerned the ban as to attorneys. And, most interestingly,
the other groups have not challenged the ban.5 Even assuming
Appellees have third-party standing to assert this claim, see,
e.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 954-59 (1984), the validity of the ban as to the other groups,
even if raised sufficiently in the district court, was far from
sufficiently developed, especially in light of the new guidance
from Florida Bar.6 We, therefore, will not consider it now.
5
For example, it appears that the Texas medical and
chiropractic associations supported the bill. One of the
Appellees, NAAIV, is made up entirely of chiropractors. However,
it appears from the pretrial order that NAAIV's challenge was based
only on the 1993 provisions that limited access to accident
reports. In any event, the district court's opinion addressed the
NAAIV only with respect to whether it engaged in "misleading or
deceptive communication", and whether the 1993 provisions
reasonably protect against that type of communication. It is,
therefore, difficult to determine in what capacity, and on who's
behalf, NAAIV appears.
6
The district court's opinion focused almost exclusively on the
evidence relating to attorney solicitation. It did not discuss the
evidence, or lack thereof, concerning solicitation by the other
groups. Likewise, it is unclear whether Appellees contended that
the 30-day ban, whether constitutional or not as to attorneys, was
unconstitutional as to the other groups. For example, no
physician, surgeon or investigator testified; only one chiropractor
did, and very little of his testimony concerned the 30-day ban. On
the other hand, and as another example, there was testimony by the
author of the bill that his constituents resented post-accident
letters from attorneys and chiropractors. Now that Florida Bar has
directed the fate of the 30-day ban as to attorneys, and has
delineated the analytical framework, the district court may
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III.
For the foregoing reasons, the judgment of the district court
is REVERSED in part, and the case is REMANDED with instructions to
vacate the injunction as to the 30-day ban, and to enter judgment
upholding the ban as to attorneys. As to the other groups affected
by the 30-day ban, this case is REMANDED for further proceedings
consistent with this opinion and Florida Bar. Such proceedings
should include the issue of standing in this case by those other
groups.
REVERSED AND REMANDED
consider this under-developed, if not undeveloped, issue.
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