While it may not be what the doctor ordered, the Sixth Circuit recently upheld an Ohio statute requiring that health care providers and their agents wait 30 days after an automobile accident or crime to directly solicit business from those injured. In First Choice Chiropractic, LLC, et al v. Mike DeWine, et al, plaintiff chiropractors and a referral service sought declarative and injunctive relief from Ohio Revised Code § 1349.05, the 2019 statute imposing the contact restrictions. Plaintiffs alleged the statute violated their First Amendment free speech rights and Fourteenth Amendment right to equal protection by “regulating health practitioners but not other professionals who may similarly contact accident or crime victims.”
In rejecting plaintiffs’ arguments, the Sixth Circuit relied on the four-part, intermediate scrutiny “Central Hudson test” to determine whether O.R.C. § 1349.05 is an “unwarranted governmental regulation” of commercial speech. The court found that the statute satisfied the test’s first prong as it “restricts truthful communication,” and the second prong because the government’s interest in protecting the privacy of accident and crime victims is substantial. Central Hudson’s third prong, whether the regulation directly advances the governmental interest asserted, was also deemed satisfied because the statute protects the privacy of individuals who may be experiencing trauma in the aftermath of an accident or crime. Lastly, the statute was found to be narrowly tailored as it only temporarily restricts direct types of solicitation (in-person, telephone, and e-mail), thus satisfying the fourth prong. Therefore, per the Sixth Circuit, the statutes’ restrictions passed the test and § 1349.05 does not violate the first amendment.
The court then quickly disposed of the equal protection challenge. The court analyzed equal protection challenges under a very similar lens to free speech challenges, asking whether the law furthers a “significant government interest.” The court stated that “[b]ecause § 1349.05 survived intermediate scrutiny under the First Amendment analysis, it likewise survives the plaintiffs’ equal protection challenge.” The court then pointed out that Ohio does regulate other professions, such as attorneys, in a similar manner.
U.S. Postal Service mailings, billboards, television commercials, and newspaper advertisements are still allowed, but healthcare providers must wait 30 days before directly telephoning, e-mailing, or soliciting in-person, auto accident and crime victims.