Home » News » Court upholds Ohio law barring health practitioners from soliciting accident victims

By David L. Hudson Jr., published on August 24, 2020

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An Ohio law that prohibits health-care practitioners and their agents from directly soliciting accident victims until 30 days after the accident does not violate the First Amendment, a federal appeals court has ruled.


The court said the law protects the privacy rights of accident victims and their families.


The law provides that “no health care practitioner, with the intent to obtain professional employment … shall directly contact in person, by telephone, or by electronic means any party to a motor vehicle accident … until thirty days after the date of the motor vehicle accident … .” The law has a separate provision prohibiting agents of health-care practitioners from engaging in the same sort of solicitation.


A group of individuals providing chiropractic services had challenged the law on First Amendment and equal-protection grounds. A federal district court ruled against the challengers. On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the lower court in its Aug. 13, 2020, ruing in First Choice Chiropractic v. Dewine.


The appeals court reasoned that the measure limited commercial speech and, as such, was subject to evaluation under the so-called Central Hudson test from the Supreme Court’s decision in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York(1980). Under this test, the speech at issue must concern lawful activity and not be misleading. If the speech meets those conditions, then the regulation must further a substantial government interest, directly and materially advance the government’s interest, and be narrowly tailored.


The 6th Circuit said the law furthered the substantial state interest in protecting accident victims’ privacy. The court also determined that the law “limits intrusion on that privacy by health care providers and their agents.” It deemed the law narrowly tailored because it “only restricts the most intrusive, direct types of solicitation – as opposed to indirect, public-facing communications such as television or billboard advertisements.”


The 6th Circuit further noted that the ban lasts only 30 days, as opposed to a permanent ban. The court also cited favorably the Supreme Court’s decision in Florida Bar v. Went For It, Inc. (1995), which upheld a similar 30-day ban on communication to accident victims by attorneys.


The court concluded: “In sum, because [the law’s] restrictions survive scrutiny under Central Hudson, and because our court and the Supreme Court have upheld materially indistinguishable restrictions in other states, the statute does not violate the First Amendment’s guarantee of free speech.”


David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).



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