The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1234
D.C. DARCEY R. WALRAVEN,
Plaintiff - Appellant,
v.
NC BOARD OF CHIROPRACTIC EXAMINERS,
Defendant - Appellee,
and
ROY COOPER, In his official capacity as Attorney General for
the State of North Carolina Department of Justice; RICHARD
DAVIS, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; THOMAS
BROWN, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; DENNIS
HALL, In his official capacity as the duly appointed member of
the North Carolina Board of Chiropractic Examiners; JAMES
BROWN, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; SKIP
BRADLEY, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; ROBERT
STROUD, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; STATEN
WILCOX, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; R.
STEVE BOWDEN, In his official capacity as the duly appointed
member of the North Carolina Board of Chiropractic Examiners,
Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cv-00321)
Argued: January 29, 2008 Decided: April 9, 2008
Before GREGORY and SHEDD, Circuit Judges, and Patrick M. DUFFY,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James F. McCarthy, III, KATZ, TELLER, BRANT & HILD,
Cincinnati, Ohio, for Appellant. James C. Fuller, Jr., Davidson,
North Carolina; Vance Callahan Kinlaw, Greensboro, North Carolina,
for Appellee. ON BRIEF: Prosser D. Carnegie, MCINTOSH LAW FIRM,
P.C., Davidson, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant Darcey R. Walraven, D.C., (“Walraven”) appeals the
order of the district court denying her motion for summary judgment
and granting the Appellees’ cross-motion for summary judgment. We
affirm.
I.
In July 2004, Walraven filed her complaint and motion for
temporary restraining order and injunction against Roy Cooper, in
his official capacity as Attorney General for the State of North
Carolina,1 and Richard Davis, Thomas Brown, Dennis Hall, James
Brown, Skip Bradley, Robert Stroud, Jr., Staten Wilcox, and R.
Steve Bowden, in their official capacities as the duly appointed
members of the North Carolina Board of Chiropractic Examiners
(collectively “the Board”). In her complaint, Walraven challenged
certain North Carolina statutes that limit the advertising that she
may undertake in the pursuit of her profession as a chiropractor.2
1
Cooper moved to be dismissed, asserting that the North
Carolina Attorney General does not enforce the statute and rules
regarding chiropractic practice in North Carolina, and Walraven
stipulated to his dismissal.
2
Specifically, Walraven challenged sections 90-401 and 90-
401.1 of the North Carolina General Statutes and section
10.0303(a)-(b) of the North Carolina Administrative Code. Section
90-401 of the North Carolina General Statutes provides:
A health care provider shall not financially compensate
in any manner a person, firm, or corporation for
recommending or securing the health care provider’s
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employment by a patient, or as a reward for having made
a recommendation resulting in the health care provider’s
employment by a patient. No health care provider who
refers a patient of that health care provider to another
health care provider shall receive financial or other
compensation from the health care provider receiving the
referral as a payment solely or primarily for the
referral. This section shall not be construed to
prohibit a health care provider’s purchase of advertising
which does not entail direct personal contact or
telephone contact of a potential patient.
N.C. Gen. Stat. § 90-401 (1994). Section 90-401.1 provides:
It shall be unlawful for a health care provider or the
provider’s employee or agent to initiate direct personal
contact or telephone contact with any injured, diseased,
or infirmed person, or with any other person residing in
the injured, diseased, or infirmed person’s household,
for a period of 90 days following the injury or the onset
of the disease or infirmity, if the purpose of initiating
the contact, in whole or in part, is to attempt to induce
or persuade the injured, diseased, or infirmed person to
become a patient of the health care provider. This
section shall not be construed to prohibit a health care
provider’s use of posted letters, brochures, or
information packages to solicit injured, diseased, or
infirmed persons, so long as such use does not entail
direct personal contact with the person.
N.C. Gen. Stat. § 90-401.1 (1994). Lastly, the relevant portion of
the North Carolina Administrative Code provides:
(a) In-Person and Telephone Solicitation of Auto
Accident Victims. In order to protect the public from
misrepresentation, coercion or undue influence, it shall
be unlawful for a doctor of chiropractic, or the doctor’s
employee, to initiate direct personal contact or
telephone contact with any person who has been injured in
a motor vehicle collision, or with any person residing in
the injured person's household, for a period of 90 days
following the collision, if the purpose of initiating
contact is, in whole or part, to solicit the injured
person to become a patient of the doctor.
(b) Acceptance of Referrals From Runners. It shall be
4
These statutes preclude Walraven and/or anyone acting on her behalf
from soliciting, either in person or telephonically, prospective
patients who may need chiropractic treatment as a result of a motor
vehicle accident for a period of 90 days following the accident.
In her complaint, Walraven asserted that these North Carolina
statutes constitute an unreasonable and unconstitutional
restriction on commercial speech in violation of the First
Amendment to the United States Constitution. In support of her
challenge, Walraven proposed a less restrictive alternative to
North Carolina’s regulatory scheme; specifically, Walraven proposed
a regulatory scheme akin to Ohio’s that would permit the kind of
marketing that she seeks to undertake.3
In response, the Board asserted that North Carolina’s
regulatory scheme is a lawful restriction on commercial speech
reasonably tailored to achieve substantial government interests,
which include the following: (1) to eliminate overreaching or the
unlawful for a doctor of chiropractic to accept as a
patient any person injured in an automobile accident who
was referred by a runner. As used in this Rule, the term
“runner” means any person, firm or corporation that
routinely obtains the names of injured persons from motor
vehicle accident reports or other public records and then
contacts those persons to induce them to seek medical or
chiropractic treatment or pursue legal claims.
21 N.C. Admin. Code 10.0303(a)-(b) (1994).
3
Walraven moved to North Carolina from Ohio, where she had
been permitted, pursuant to Ohio Admin. Code § 4734-9-02 and
certain regulations contained therein, to solicit patients
telephonically following an accident.
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exercise of undue influence by health care providers; (2) to
preserve the privacy of injured or ill persons and their immediate
families; (3) to protect against false or misleading advertising
and “bait and switch” advertising practices; (4) to protect against
one-sided presentations that encourage speedy and uninformed
decision-making concerning the availability, nature, and price of
health care services and the necessity of obtaining such services;
(5) to minimize situations where the exercise of professional
judgment by a health care provider is clouded by pecuniary self-
interest; (6) to protect persons whose injury or illness makes them
more vulnerable and for whom telephonic solicitation would add to
their level of distress; and (7) to maintain standards among
members of licensed health care providers.
The district court denied Walraven’s motion for a temporary
restraining order as well as her motion for a preliminary
injunction. The parties subsequently filed cross-motions for
summary judgment. In a written order dated February 27, 2007, the
district court denied Walraven’s motion for summary judgment and
granted the Board’s motion for summary judgment, finding that the
Board satisfied its burden to establish the constitutionality of
the North Carolina statutes at issue.
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II.
A.
This court reviews an award of summary judgment de novo. Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004) (en banc). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).
B.
The Supreme Court has extended the protections of the First
Amendment to purely commercial speech; nevertheless, the Court has
afforded commercial speech “a limited measure of protection,
commensurate with its subordinate position in the scale of First
Amendment values, while allowing modes of regulation that might be
impermissible in the realm of noncommercial expression.” Ohralik
v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978); see also Florida
Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (quoting the
same). In view of this, the regulation of commercial speech is
subject to intermediate scrutiny under the traditional framework
set forth by the Supreme Court in Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980). See
Adventure Comms., Inc. v. Kentucky Registry of Election Fin., 191
7
F.3d 429, 439 (4th Cir. 1999) (citing Central Hudson, 447 U.S. at
566). In Central Hudson, the Court stated:
In commercial speech cases, then, a four-part analysis
has developed. At the outset, we must determine whether
the expression is protected by the First Amendment. For
commercial speech to come within that provision, it at
least must concern lawful activity and not be misleading.
Next, we ask whether the asserted governmental interest
is substantial. If both inquiries yield positive
answers, we must determine whether the regulation
directly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to
serve that interest.
447 U.S. at 566. Thus, for a commercial speech regulation to be
constitutionally permissible under the Central Hudson test, the
speech in question must concern lawful activity and not be
misleading; the asserted governmental interest to be served by the
regulation must be substantial; and the regulation must be narrowly
drawn. See Florida Bar, 515 U.S. at 623-34; see also Ficker v.
Curran, 119 F.3d 1150, 1152 (4th Cir. 1997) (citing Central Hudson
and Florida Bar). “The party seeking to uphold a restriction on
commercial speech carries the burden of justifying it.” Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 71, n. 20 (1983).
III.
Here, as the district court concluded, there is no question
that the first two prongs of the Central Hudson test are satisfied.
That is to say, it is clear that the non-deceptive advertising of
chiropractic services is protected speech under the First
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Amendment, and North Carolina has several legitimate and
substantial governmental interests in regulating solicitation
concerning chiropractic services. Thus, the real issue is whether
North Carolina’s regulatory scheme directly advances the
governmental interests asserted and whether it is more extensive
than is necessary to serve that interest.
To establish that the regulation directly advances the
governmental interests asserted, the Board must “demonstrate that
the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.” Edenfield v. Fane, 507 U.S.
761, 770-71 (1993). The Supreme Court has permitted governmental
bodies to justify speech regulations by reference to studies and/or
anecdotal evidence. In fact, the Court has permitted litigants to
justify speech regulations with reference to “studies and anecdotes
pertaining to different locales altogether . . . .” Florida Bar,
515 U.S. at 628 (citations omitted).
Here, the district court agreed with Walraven that “the
regulations at issue may not materially advance some of the
governmental interests that the Board asserts.” Walraven v.
Cooper, et al, No. 3:04-cv-321-W, 2007 WL 656284, at *2 (W.D.N.C.
Feb. 27, 2007). Nevertheless, the district court determined that
the challenged regulations materially advance at least one
substantial governmental interest – that is, “the protection of a
particular segment of the public from invasive (and potentially
9
coercive and/or misleading) solicitation tactics under
circumstances in which they may be particularly vulnerable.” Id.
The court quoted the following passage from its previous order
denying Walraven’s motion for a preliminary injunction:
The [Board] proffered evidence in the form of affidavits,
exhibits and testimony, which illustrates the type of
harassment personal injury victims were often subject to
in the days following an injury, prior to the enactment
of the various statutes in question. The evidence
offered by the [Board] also show[s] that victims of
personal injury are often in a heightened state of
vulnerability and distress in the days following an
injury, and that the statutes in question have provided
some form of relief from in-person and telephone coercion
by chiropractors or runners.
Id. at *3 (quoting the court’s July 23, 2004 order denying
preliminary injunction).
Having found the third prong of the Central Hudson test
satisfied, the district court next considered the final prong of
the Central Hudson test, namely, whether the regulatory scheme is
more extensive than is necessary to serve the governmental
interest. The district court noted that to establish this final
prong, the Board needed to demonstrate a reasonable “fit between
the legislature’s ends and the means to accomplish those ends, a
fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served, that employs
not necessarily the least restrictive means but . . . a means
narrowly tailored to achieve the desired objective.” Florida Bar,
10
515 U.S. at 632 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989)) (internal quotation marks omitted).
In addressing the final prong of the Central Hudson test, the
district court first evaluated whether the challenged statutes are
overly broad, such that they restrict more speech than is necessary
to accomplish the state’s objectives. In rejecting Walraven’s
assertion that the statutes amount to a blanket ban, the court
stated:
While the Court agrees that the challenged regulations
significantly burden Dr. Walraven’s ability to advertise
by effectively precluding all telephonic contact with the
class of persons who would be most receptive to a
personal invitation to see a chiropractor, this is a far
cry from a “blanket ban” on Dr. Walraven’s commercial
speech. Dr. Walraven retains the ability to reach
prospective car accident clients by means of the mass
media and even targeted mailings, and she may solicit
potential clients in-person or by telephone so long as
she does not target them on account of their status as
recent car accident victims. By singling out for
regulation only speech which is particularly susceptible
to fraud and overreaching (i.e., in-person and telephonic
solicitation) and which is targeted at a protected class
(i.e., recent victims of car accidents), the North
Carolina regulations are easily distinguished from the
laws of other jurisdictions which have been struck down
as overly broad in the cases cited by Dr. Walraven.
Walraven, 2007 WL 656284, at *3.
The court next examined whether Walraven’s proposed less-
restrictive alternative would be as feasible and effective as North
Carolina’s current scheme. In considering Walraven’s proposed
script, from which she asserted that her contracted telemarketers
would be instructed not to deviate, the court noted that “the
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content of a telephonic solicitation is inherently more difficult
to regulate than the content of a written solicitation – a
distinguishing feature that may justify a prophylactic ban of the
former but not the latter.” Id. at *4 (citing Shapero v. Kentucky
Bar Assoc., 486 U.S. 466, 476 (1988); Nat’l Funeral Servs., Inc. v.
Rockefeller, 870 F.2d 136, 144 (4th Cir. 1989); and Gregory v.
Louisiana Bd. of Chiropractic Exam’rs, 608 So.2d 987 (La. 1992)).
The district court further noted:
Written solicitations are capable of being screened for
compliance by a state regulatory authority before they
are ever mailed. By contrast, telephonic solicitations
(even scripted ones) do not take place in a controlled
environment and improper deviations from the script are
not susceptible to detection until after the harm is done
(provided that a disgruntled consumer even bothers to
report the violation to the relevant authorities), and
then the only recourse in the event of a violation likely
would be against a party (the “runner” or telemarketer)
not necessarily subject to the Board's disciplinary
jurisdiction. Furthermore, even assuming that Dr.
Walraven’s alternative would be effective at ensuring the
truthful and tactful content of the solicitation, her
proposal does not address the concerns that the Board has
advanced for protecting the privacy of car accident
victims from a barrage of invasive and subtly coercive
phone calls in the immediate wake of experiencing a
traumatic life event.
Id. Based on the foregoing, the district court concluded that the
Board satisfied its burden under the Central Hudson test to
demonstrate that North Carolina’s regulatory scheme directly
advances the governmental interest asserted and is not more
extensive than is necessary to serve that interest.
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IV.
Having thoroughly reviewed the district court’s order and the
parties’ briefs and submissions on appeal, and having heard oral
argument in this case, we conclude, based on the reasons set forth
by the district court in its order dated February 27, 2007, that
the Board satisfied its burden under the Central Hudson test to
establish the constitutionality of the North Carolina regulations
at issue. Accordingly, we affirm the district court’s award of
summary judgment in favor of the Board and denial of summary
judgment in favor of Walraven.
AFFIRMED
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