29 March 2006
Honey, it's an air bag calling
Dr. Kirtland Speaks is suing for his right to telemarket car accident victims. He claims that the Louisiana Board of Chiropractic Examiners regulations, preventing him from employing this marketing tactic, violate his freedom of speech.
The doctor planned to hire telemarketers to glean accident victims' names and telephone numbers from public accident reporters. "The Board" found this was illegal under two Louisiana laws designed to protect patients and victims from solicitations.
The doctor just won a victory. At the suit's start, he filed a "Motion for Preliminary Injuntion," asking the court to prevent the State from enforcing the don't-telesale-victims law. A lower court declined the motion but Speaks' appeal to the 5th Circuit resulted in a ruling in his favor.
Fifth Circuit opinion here [requires Adobe Reader]. The pivotal paragraph:
Sensing the difficulty of its position, the Board contended at oral argument that preventing solicitation of prospective clients only when they are "vulnerable to undue influence" functions as a time limitation. The argument is that it prohibits solicitation only when necessary and, theoretically, could allow solicitation sooner than a firm time limitation. We are unpersuaded. The term "vulnerable to undue influence" is undefined. The Board urges that the three subsections under § 37:1743(A) define those terms, but those subsections merely provide non-exclusive examples of situations in which a prospective client "may be considered to be vulnerable to undue influence." The uncertainty inherent in the statutory term "undue influence" leaves the seller of services uncertain of when he may call. It is this chilling uncertainty that supports the use of a bright line time-out period reflecting the State's judgment of when the risk of undue influence is too great. The balance of interests required by the First Amendment cannot be struck by use of such an open-ended stricture that resists ex ante fixity.
Me, I balance my First Amendment interests by refusing to answer the goddamn phone unless Caller ID presents me with acceptable information.
Update: Dr Speaks gets an unsolicited phone call.Posted at 4:28 PM to Wastes of Oxygen