The highest courts in both Arkansas and Florida have ruled in favor of certain chiropractic marketing efforts. The Arkansas Supreme Court held that the Arkansas Chiropractic Board’s regulation prohibiting telemarketing to accident victims was an absolute prohibition on commercial speech and, therefore, violated the First Amendment. The Florida Supreme Court held that a statute making criminal the solicitation of accident victims was illegal on the same grounds.
In Arkansas, a licensed chiropractor employed a professional telemarketing company to build his client base. The telemarketing company accessed accident reports from the geographic area in which the doctor practiced, called the accident victims within days of the accident and scheduled appointments. The Arkansas Board of Chiropractic Examiners (“Board”) considered this “unprofessional acts.”
The facts in Florida involved the same type of marketing activity. Florida had a statute making this type of telemarketing activity criminal.
The Florida Supreme Court and the Arkansas Supreme Court applied the standards developed by the United States Supreme Court in Central Hudson Gas & Elec. v. Public Serv. Commission, 447 U.S. 557 (1980). In the Hudson case the U.S. Supreme Court imposed the following standards to determine whether a statute or regulation is constitutional: whether (1) the expression is protected by the First Amendment; (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the governmental interest asserted; and (4) whether the regulation or statute is not more extensive than is necessary to serve that interest.
Both courts held that the restriction on the chiropractor’s commercial speech was more extensive than necessary to serve the interest of the state in protecting its citizens from over reaching by the doctor. The courts held that the respective regulation and statute violated the doctors’ freedom of speech and was an unconstitutional infringement on commercial speech in violation of the First Amendment.
Do not take these cases as permission to freely telemarket without being very careful as to the content of your marketing. Both these cases could easily have gone the other way if the regulation or statute had been drafted more carefully and, in both cases, the consequences would have been severe.
If you have any questions with regard to the above or with respect to any other legal heath care issues, you may FAX your questions to Deborah A. Green, Esq., at 954-971-3787 or call 954-971-7778 or e-mail [email protected]. In future issues, she will be answering those questions which are of interest to the broadest audience.
Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in the State of New York and Florida and is a member of the American Health Lawyers Association, the New York State Bar Association Health Care System Design Committee, the New York State Bar Association Health Care Providers Committee, the American Bar Association Health Law Section and the Florida Bar Health Law Section. She has formed numerous multi-discipline practices throughout the country.
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