Silverman v. Summers,
No. 98-6476 (6th Cir. Dec. 28, 2001)

The United States Court of Appeal for the Sixth Circuit upheld an injunction granted by the District Court that bars enforcement of a state statute prohibiting in-person or telephonic solicitation of a patient with whom a chiropractor has had no family or previous professional relationship.

A chiropractor, who solicited patients by speaking at public events, hosting educational booths at health fairs, distributing business cards in high pedestrian areas, and telemarketing, challenged a Tennessee law that prohibited in-person or telephonic solicitation of patients whom the chiropractor has not previously seen professionally. The chiropractor argued that the statute violated his First Amendment rights to free speech because of the breadth of its prohibitions. The Board of Chiropractic Examiners argued that the statute made clear that advertising was not prohibited, and therefore, the chiropractor's activities in this case would not have been restricted by the Act.

The court agreed with the chiropractor's interpretation of the Act, holding that its plain language prohibits solicitation in all instances except those involving family members or those made by means of direct mail, radio, writing, or television. The court further found that a ban that reaches all solicitations except those falling into these two circumstances is broader than necessary to serve the state's legitimate interests in protecting potential patients from coercion, distress, and invasion of privacy. Thus, the court held that the state is required to achieve its goals of patient protection through more tailored regulations, such as establishing a moratorium on contacting accident victims for a certain period following the accident.