Ohio Statute Prohibiting “Solicitation” in Workers’ Compensation Claims or Appeals Violates First Amendment
A provision in Ohio Rev. Code Ann. § 4123.88(A) that bars any person, either directly or indirectly, from soliciting authority to represent a claimant or employer in respect of a worker’s compensation claim or appeal violates the First Amendment, held the U.S. Court of Appeals for the Sixth Circuit [Bevan & Assocs., LPA v. Yost, 2019 U.S. App. LEXIS 20201 (6th Cir., July 8, 2019)]. The Court acknowledged that the state had an interest in protecting the privacy of recipients of attorney solicitation. The Court said, however, that a total ban on solicitation was too broad and too restrictive.
Background
Bevan is an Ohio law firm that represents Social Security Disability Insurance and workers' compensation claimants. Before the 2006 amendments to § 4123.88, Bevan was able to obtain claimant names and addresses by submitting public records requests to the Ohio Bureau of Workers’ Compensation (“the Bureau”). Bevan used this information, as well as information gained from various other third-party sources, to craft written solicitations targeted at workers’ compensation claimants.
In 2006, § 4123.88 was amended so as to, among other things, exclude the contact information of workers’ compensation claimants from being discoverable through public records requests. However, the legislature created an exception, in divisions (D) and (E), that allowed journalists to make records requests for claimant information — including claimants' names and addresses. After 2006, Bevan relied upon the journalist exception to gather that information.
Bevan hired a journalistic service and an individual—a former client and apparent journalist, to use the journalist exception to gain access to the Bureau's claimant information. Bevan then combined the information it acquired from the journalists with information it had obtained from other outlets to compile a list of individuals who would eventually receive direct mail advertisements.
Law Firm Sought Declaratory Judgment that Provision was Unconstitutional
From 2007 to 2016, Bevan used information acquired by its journalists for its marketing campaigns. In February 2016, the journalist received a subpoena from an Ohio grand jury that was investigating a possible violation of § 4123.88. Thereupon, Bevan ceased its advertising and filed suit in the United States District Court for the Southern District of Ohio, seeking a declaratory judgment that § 4123.88 was unconstitutional. After discovery was complete, Bevan and Appellees cross-moved for summary judgment.
District Court’s Decision
The district court acknowledged that, read in isolation, Ohio Rev. Code § 4123.88(A) could be construed as a ban on all solicitation. However, the district court determined that it would interpret the solicitation ban as applicable only to solicitation based on unlawfully obtained claimant information. The district court found that the constitutional avoidance doctrine compelled its result: by construing the solicitation ban narrowly, the court could avoid the First Amendment question entirely. For those reasons, the district court found as a matter of law that Bevan's lawsuit could not succeed. It denied Bevan's motion for summary judgment while granting the defendants’ motion for summary judgment.
Sixth Circuit Opinion
Bevan argued that the solicitation ban effected a blanket and unconditional prohibition on solicitation of any sort, whether in person or in writing. The state contended that the text of § 4123.88(A) made it apparent that the statute restricted only solicitation that was facilitated by wrongfully obtained claimant information. The problem with the state’s argument, said the Sixth Circuit, was that the statutory text at issue was unambiguous. The Sixth Circuit stressed that the statute, as written, bars both in-person and written solicitation, with or without the use of ill-gotten claimant information. The Court said it must analyze the statute under the First Amendment as the statute is written—as a ban on solicitation of any kind by any person of workers' compensation claimants.
Applying the framework of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), as that doctrine had been “sharpened” by several cases, including Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988), which the Court said had similar facts. As in Shapero, Bevan targeted, in writing, certain people—here, those individuals who Bevan knew to be workers’ compensation claimants (or potential claimants). The Court acknowledged that the State of Ohio had an interest in protecting the privacy of workers’ compensation claimants. As in Shapero, however, the state’s interest in protecting solicitee privacy did not extend far enough to justify prohibiting the solicitation. Quoting Shapero, the Court stressed that a targeted letter does not “invade the recipient’s privacy any more than does a substantively identical letter mailed at large” (Shapero, at p. 476). Because Ohio’s interest in protecting claimant privacy could not outweigh Bevan’s right to engage in commercial speech, and because § 4123.88(A) completely barred solicitation, the statute failed the Central Hudson test.
The Court reversed the decision of the district court and remanded with instructions to enter summary judgment in favor of Bevan.