Court wrangle continues over Florida law forbidding attorney solicitation

By David Hudson

12.23.98

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A case in Florida could determine the constitutionality of a state law banning all forms of attorney advertising related to automobile accident cases.

In State v. Falk, Florida officials contend that attorney Steven Falk violated a state law by unlawfully soliciting to represent an individual injured in a car accident.

The law provides that "it is unlawful for any attorney to solicit any business relating to the representation of persons in a motor vehicle accident for the purpose of filing a motor vehicle tort claim or a claim for personal injury protection benefits."

However, Falk and his attorney, Alan Weinstein, contend that the charges should be dismissed for several reasons, including violation of First Amendment free-speech rights.

Weinstein told freedomforum.org: "It is very clear that this statute unconditionally bans all forms of attorney advertising that pertain to auto accidents. This is a blanket prohibition on commercial speech."

In court documents Weinstein argues that "an attorney's right to advertise basic legal services constitutes commercial speech that is entitled to some First Amendment protection."

"The outright prohibition (mandated by the law) ... does nothing more than deprive those injured individuals of the opportunity to become knowledgeable of an attorney's qualifications and their potential legal rights," Weinstein argued.

A trial court agreed with Falk and Weinstein and ruled the statute unconstitutional.

However, earlier this month a state appeals court ruled that before it could determine whether the statute violated the First Amendment, it must know exactly "what act or acts" Falk had allegedly violated.

According to the appeals court, the only First Amendment challenge that can be made to a statute involving commercial speech is an "as applied" challenge, which questions the constitutionality of the statute as applied to the litigant's specific acts.

The appeals court refused to allow Falk and Weinstein to attack the statute on grounds of the overbreadth doctrine. Under the overbreadth doctrine, a statute can be invalidated — even when the litigant's own activities are not constitutionally protected — if the statute prohibits constitutionally protected activities.

"The appeals court erred in not allowing a facial challenge to this law under the overbreadth doctrine," Weinstein said.

However, assistant attorney general Michael Niemand said the appeals court made the correct ruling.

"My reading of the court's opinion is that the statute is facially constitutional, because the only challenge allowed is an as-applied challenge," he said.

"If there is any valid application of a statute involving commercial speech, then it is facially constitutional," Niemand told freedomforum.org. "There are valid applications of this statute, because the U.S. Supreme Court has held that direct, in-person solicitation can be prohibited."

Niemand said the court of appeals' opinion meant that the district attorney would have to refile charges specifying exactly what actions Falk took in violation of the anti-solicitation statute.

Weinstein said he would first seek a rehearing before the full appeals court. If that fails, he will then appeal to the Florida Supreme Court and, if necessary, the U.S. Supreme Court, he said.

"This case presents serious constitutional issues," Weinstein said.

"That is the nature of the game," responded Niemand. "I expected [Weinstein] to take it up to the Florida Supreme Court."