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Florida high court strikes down ban on crash-victim solicitation

By The Associated Press

06.01.01

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TALLAHASSEE, Fla. — A 1977 statute that banned chiropractors and others from seeking business from car-crash victims violates the First Amendment, the state Supreme Court ruled yesterday.

The unanimous decision overturning the law was a victory for a Fort Lauderdale chiropractor charged as part of a statewide effort known as "Operation Chiro-Sweep."

The law, which made it a third-degree felony to solicit crash victims, was unconstitutional because it wasn't limited to attempts to defraud insurance companies, Justice R. Fred Lewis wrote for the court.

"Our decision ... is in no way to be interpreted as promoting or even condoning the practice of chasing patients, customers or clients," Lewis wrote.

But, he added, there was no escaping the conclusion that the law violated commercial-speech rights protected by the First Amendment to the U.S. Constitution.

However, the impact of the decision may be limited by a new law passed last month, said Robert Wheeler, an assistant attorney general who worked on the case.

The legislation, CS-HB 1805, limits access to information about people involved in car crashes for 60 days. It is awaiting action by Gov. Jeb Bush.

The decision by Florida's high court comes after a series of decisions by various District Courts of Appeal. Most of the rulings by the lower courts found that the law was constitutional; one did not.

Although the law applied to everyone, the state targeted chiropractors with it, according to Michael Dutko, an attorney representing chiropractor Charles Bradford. All of the appeals were brought by chiropractors.

Dutko said Bradford was happy with the decision. "He never engaged in fraudulent activity," Dutko said.

Lewis wrote that it was clear the goal of the law was to curtail doctors and lawyers from soliciting business from crash victims.

But the U.S. Supreme Court has made it clear that there are limits to government regulation of commercial speech.

Under guidelines set by the U.S. Supreme Court in the 1980 case Central Hudson Gas & Elec. Corp. v. Public Service Commission, the government can regulate commercial speech related to crimes and commercial speech that is misleading.

To regulate other commercial speech, the government must have "a substantial interest" — and must do so in a way that serves that interest but is still narrowly tailored.

Florida clearly has several good reasons, including the prevention of fraud, to regulate the speech of chiropractors and others soliciting business from victims of car crashes, Lewis wrote.

But, he wrote, the law fell short of the last two requirements: to advance the state's interest but be narrowly tailored.

"While the statute, as drafted, may prevent or deter fraud, its criminal net also captures legitimate and otherwise lawful conduct," Lewis wrote. He added that there was "absolutely nothing sinister about presenting honest and legitimate requests for compensation ... based on damages sustained in an automobile accident."

Related

Chiropractors prevail in free-speech challenge of Texas anti-solicitation law
'Fortunately the appeals court was more aware of the Constitution than the federal district court,' says attorney for chiropractors.  09.27.99

Drug-mixing ad rules to get high court test
Analysis Pharmacists say federal law that restricts promotion of compounding violates free speech.  10.30.01

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