Capobianco v. Summers

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Capobianco v. Summers, et al. No. 02-5756

ELECTRONIC CITATION: 2004 FED App. 0237P (6th Cir.)

File Name: 04a0237p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Douglas R. Pierce, KING & BALLOW,

FOR THE SIXTH CIRCUIT Nashville, Tennessee, for Appellant. Sue A. Sheldon,

_________________ OFFICE OF THE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellees. ON BRIEF: Douglas R. Pierce,

MICHAEL ANTHONY X Alexander J. Passantino, KING & BALLOW, Nashville,

CAPOBIANCO , D.C., - Tennessee, for Appellant. Sue A. Sheldon, OFFICE OF THE

- ATTORNEY GENERAL, Nashville, Tennessee, for

Plaintiff-Appellant, Appellees.

- No. 02-5756

-

v. > _________________

,

- OPINION

PAUL SUMMERS , Attorney - _________________

General, in his official -

capacity as Attorney General - ALICE M. BATCHELDER, Circuit Judge. Plaintiff-

of the State of Tennessee; - Appellant Michael Capobianco appeals the district court’s

- order denying a preliminary injunction to prevent the

TENNESSEE BOARD OF

- defendants from enforcing TENN. COMP. R. & REGS. § 0260-

CHIROPRACTIC EXAMINERS , - 2-.20(6)(a) (“the Rule”) during the pendency of this action

Defendants-Appellees. - challenging the Rule’s constitutionality. Because we

- conclude that the district court did not err in holding that the

N factors the court was required to consider in deciding this

Appeal from the United States District Court motion weigh in favor of the defendants, we affirm the order

for the Middle District of Tennessee at Nashville. of the district court.

No. 02-00063—Robert L. Echols, Chief District Judge.

BACKGROUND

Argued: December 10, 2003 Michael Anthony Capobianco, Doctor of Chiropractic,

(“Capobianco”) resides in Texas but has obtained a Tennessee

Decided and Filed: July 23, 2004 Chiropractic license and intends to practice in Tennessee. To

that end, Capobianco intends for his employees or agents to

Before: BOGGS, Chief Judge; BATCHELDER and solicit recent traffic accident victims in the State of Tennessee

SUTTON, Circuit Judges. to encourage them to seek chiropractic treatment at his

offices. A regulation promulgated by the Tennessee Board of

Chiropractic Examiners, the licensing board for all

1

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practitioners of chiropractic in Tennessee, restricts such whether the injunction would serve the public interest. See

solicitations. The pertinent portion of that regulation reads: Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994).

“Telemarketing or telephonic solicitation by licensees, their

employees, or agents to victims of accidents or disaster shall These factors are not prerequisites but instead must be

be considered unethical if carried out within thirty (30) days balanced. See Dayton Area Visually Impaired Persons, Inc.

of the accident or disaster, and subject the licensee to v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995). We have

disciplinary action pursuant to T.C.A. § 63-4-114.” TENN. repeatedly noted that the first factor is frequently dispositive

COMP. R. & REGS. § 0260-2-.20(6)(a) (2000). While in the First Amendment context. See Deja Vu of Nashville,

chiropractors are the only medical professionals subject to Inc. v. Metro Gov’t of Nashville & Davidson County, Tenn.,

such a rule, attorneys in Tennessee are similarly prohibited 274 F.3d 377, 400 (6th Cir. 2001); Connection Distrib. Co. v.

from soliciting accident victims within 30 days of an accident. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Newsom v. Norris,

888 F.2d 371, 378 (6th Cir. 1989). The district court found

Capobianco filed suit in district court, alleging that the Rule that Capobianco was unlikely to succeed on the merits of

is an unconstitutional restraint on speech as well as a violation either his First Amendment or Equal Protection challenge,

of equal protection because only chiropractors (among and that while Capobianco was unlikely to suffer irreparable

medical professionals) are subject to such a limitation, and harm in the absence of an injunction, the issuance of the

seeking declaratory and injunctive relief, attorneys’ fees and injunction was likely to cause harm to others and would not

costs. Capobianco moved for a preliminary injunction to serve the public interest.

prevent enforcement of the Rule during the pendency of this

litigation. The district court held oral argument on the motion I. Capobianco’s First Amendment Challenge.

and issued a memorandum opinion and order denying the

preliminary injunction. Capobianco timely appeals from that On appeal, the parties agree—as they did before the district

denial. court—that the standard governing Capobianco’s First

Amendment challenge to this rule regulating commercial

DISCUSSION speech is the intermediate scrutiny test set forth in Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,

We review for abuse of discretion a district court’s order 447 U.S. 557 (1980). The Supreme Court summarized this

granting or denying a preliminary injunction. See Blue Cross test in Florida Bar v. Went For It, Inc., 515 U.S. 618, 624

& Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield (1995), in which the Court upheld the constitutionality of

Ass'n, 110 F.3d 318, 322 (6th Cir. 1997). A district court Florida Bar rules prohibiting attorneys from contacting,

abuses its discretion when it relies upon clearly erroneous directly or indirectly, accident victims or their relatives for the

findings of fact, improperly applies the governing law, or uses purposes of soliciting their business for a period of 30 days

an erroneous legal standard. See id. Generally, in following an accident. Central Hudson, the Court said,

considering a request for a preliminary injunction, the district permits the regulation of commercial speech “if the

court should consider (i) whether the movant is likely to government satisfies a test consisting of three related parts:

succeed on the merits; (ii) whether the movant will suffer First, the government must assert a substantial interest in

irreparable injury in the absence of an injunction; (iii) whether support of its regulation; second, the government must

the injunction will cause substantial harm to others; and (iv) demonstrate that the restriction on commercial speech directly

and materially advances that interest; and third, the regulation

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must be narrowly drawn.” Id. (internal quotation marks having been contacted immediately after accidents by

omitted). telemarketers on behalf of chiropractors; and articles from

scientific and business publications covering aspects of

The Florida Bar Court agreed with the Bar that the State telephone solicitation relevant to that carried out by

has a substantial interest in protecting “the privacy and chiropractors following accidents or disasters. We do not

tranquility of personal injury victims and their loved ones write on a clean slate with respect to such regulations. In

against intrusive, unsolicited contact by lawyers.” Id. at 624- Silverman, we reviewed the Tennessee statute that was the

25. Importantly, the Court recognized that the regulation at precursor to this Rule, which banned virtually all solicitation

issue there was designed as well to establish standards by chiropractors. That case included virtually the same

regulating the practice of law and protecting the reputation of anecdotal and periodical evidence presented in the case before

the legal profession, and states have a “compelling interest in us today, and we concluded that “the statute's prohibition on

the practice of professions within their boundaries, and . . . speech is an effective way of addressing the asserted

broad power to establish standards for licensing practitioners interests.” Id. at *4.

and regulating the practice of professions.” Id. (quoting

Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)). The district court noted that in the proceedings on the

motion for a preliminary injunction, Capobianco did not

This circuit has held in an unpublished opinion that the challenge the Rule on the basis of the second part of Central

State of Tennessee has a substantial interest in “protecting the Hudson’s test. Nor does his brief on appeal present any

privacy of accident victims, preventing overreaching by cogent challenge based on that part. Capobianco does assert,

chiropractors and their agents and regulating the profession.” however, as part of his argument that the Rule fails the

Silverman v. Summers, 28 Fed. Appx. 370, 374, 2001 WL effectiveness requirement of Central Hudson because some

1671072 (6th Cir. 2001). The State of Tennessee asserts the chiropractors are not complying with it. Capobianco does not

same interest in support of the Rule at issue here, and the provide any authority for equating the existence of some

district court held that the State’s interest is substantial. We scofflaws with a regulation’s lack of efficacy. To the extent

find no substantive difference between the interest asserted in that Capobianco raises the second part of the Central Hudson

Florida Bar and that asserted here, and we hold that the State test, we hold that the State has satisfied it.

has satisfied the first part of the Central Hudson test.

Capobianco’s strongest argument is based on the third part

Next, we must address whether the Rule directly and of the Central Hudson test, namely, that, the Rule is not

materially advances the State’s substantial interest. In narrowly drawn because chiropractic therapy is most effective

Florida Bar, the Supreme Court reaffirmed the State’s burden if started within days of an injury and because the State has

to present data, by way of studies or anecdotal evidence, less restrictive ways of protecting the privacy of those victims

demonstrating the harms the regulation is designed to remedy and of policing the integrity of the profession than a 30-day

and the efficacy of the regulation in alleviating those harms. ban on contacting the victims. We agree with the district

See Florida Bar, 515 U.S. at 626. Here, the State presented court that when viewed in the light of the most germane

the district court with newspaper articles documenting both authority, namely Florida Bar and Silverman, the Rule is

the solicitation of accident victims by chiropractors or their sufficiently narrowly drawn to meet the third part of the

agents and the complaints and problems generated by those Central Hudson test.

solicitations; declarations of individuals complaining about

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Capobianco’s argument that because contacting victims sanction but simply subjects the licensee on whose behalf the

quickly is important to chiropractic treatment, a 30-day time solicitation is made to disciplinary action. See TENN. COMP.

limit is not narrowly tailored, was one of the points made by R. & REGS. § 0260-2-.20(6)(a). The Supreme Court has made

the dissenting opinion in Florida Bar. See Florida Bar, 515 it clear that in the context of commercial speech, Central

U.S. at 642-43 (Kennedy, J., dissenting). The district court Hudson’s “narrowly drawn” requirement does not mean that

concluded that the fact that Florida Bar involved a rule the regulation employs the “least restrictive means” to

governing attorneys and the Rule in this case governs achieve its end. Florida Bar, 515 U.S. at 632 (citing Board

chiropractors was not sufficient to distinguish this case from of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480

Florida Bar in that respect. Indeed, as the district court (1989)). We think this time limit, identical to that in Florida

noted, the majority in Florida Bar must have considered and Bar, and this sanction, are sufficiently narrow to satisfy the

rejected that precise argument. Like the district court, we find third part of the Central Hudson test.

no reason to do otherwise.

We hold that the district court did not err in concluding that

In Silverman, we ultimately concluded that the statute Capobianco has demonstrated little likelihood of succeeding

failed the third part of the Central Hudson test because it on the merits of his First Amendment challenge to TENN.

impermissibly banned: COMP. R. & REGS. 0260-2-.02(6)(a).

Solicitation, in person or by live telephone contact, by II. Capobianco’s Equal Protection Challenge.

a licensee, or by an agent, servant, employee, or

independent contractor of a licensee, of a patient with Capobiano also challenges the Rule under the Fourteenth

whom a licensee has no family or prior professional Amendment’s Equal Protection clause. The Equal Protection

relationship; however, this shall not prohibit solicitation clause guarantees that no State shall “deny to any person

by targeted direct mail advertising or other forms of within its jurisdiction the equal protection of the laws,” a

written, radio, or television advertising; provided, that guarantee that the Supreme Court has characterized as a

the advertising does not involve coercion, duress, or requirement that “all persons similarly situated . . . be treated

harassment and is not false, deceptive or misleading. alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985) (citing U.S. CONST . amend. XIV.).

TENN CODE. ANN . § 63-4-114(5); see Silverman, 2001 WL Reviewing an equal protection challenge to a Kentucky

1671072 at *2. Chief among the reasons for our decision was statute prohibiting attorneys or their agents from soliciting

the fact that the statute contained no time limit at all on the accident victims within 30 days of their accidents, we held

restriction of access to accident victims by chiropractors or that if a regulation impacting speech is content-neutral such

their agents. See id. at *5. We also noted that the imposition as a time, place, or manner restriction, then we utilize

of criminal sanctions weighed against the constitutionality of intermediate scrutiny. See Chambers v. Stengel, 256 F.3d

the regulation. See id. 397, 401 (6th Cir. 2001). Commercial speech restrictions, we

said, will “survive constitutional assessment if the implicated

Here, Tennessee has corrected those problems. This Rule measure was narrowly fashioned to further a significant

limits the restriction on telemarketing or telephonic governmental interest.” Id. (quoting Grider v. Abramson, 180

solicitation of any accident victim to the 30-day period F.3d 739, 748 (6th Cir. 1999)). And we went on to hold that

following the accident. And the Rule contains no criminal “[b]ecause regulation of commercial speech is subject to

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intermediate scrutiny in a First Amendment challenge, it did not err in holding that Capobianco is unlikely to succeed

follows that equal protection claims involving commercial on the merits of his Equal Protection challenge to the Rule.

speech also are subject to the same level of review.” Id.

(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992)). The district court held that the other factors the court is

required to balance in reviewing a demand for a preliminary

We have already concluded that the Rule at issue here injunction weigh in favor of the State. Inasmuch as

survives First Amendment scrutiny because it satisfies the Capobianco does not present any argument with regard to

Central Hudson test, that is, the rule is narrowly drawn and these elements of the district court’s ruling, we will not

directly and materially advances a substantial government address them. Accordingly, we hold that the district court did

interest. See Central Hudson, 447 U.S. at 564-65; see also not abuse its discretion in denying Capobianco’s request for

Florida Bar, 515 U.S. at 624. In Chambers, we held that the a preliminary injunction.

Kentucky statute “is narrowly tailored to further substantial

governmental interests and, thus, comports with the Equal CONCLUSION

Protection Clause.” Chambers, 256 F.3d at 403. Because we

see no basis for concluding that Griders’s “significant For the foregoing reasons, we AFFIRM the judgment of the

governmental interest” and Central Hudson’s “substantial” district court.

government interest are materially different, we conclude that

this Rule also comports with the Equal Protection Clause.

But Appellant also argues that because medical doctors are

not subject to such a regulation, the state has failed to treat

them “alike.” The district court noted, and we agree, that

because there is no single instance in the record of a medical

doctor contacting an accident victim within 30 days of an

accident, or any complaint by someone with reference to such

a contact, if Tennessee were to enact a parallel regulation for

medical doctors, it “would be implementing a solution to a

nonexistent problem.” The Equal Protection Clause does not

require that the state treat all persons alike. It requires only

that the state treat similarly situated persons alike, and that

where the state distinguishes between classifications of

persons, the distinction must “have some relevance to the

purposes for which the classification is made.” Chambers,

256 F.3d at 401 (quoting Baxstrom v. Herold, 383 U.S. 107,

111 (1966)). Here, the State has distinguished between

medical professionals who have a record of engaging in a

particular conduct that generates complaints about matters in

which the state has a substantial interest, and medical

professionals who do not. We conclude that the district court