West Case Update

Regulation Banning Solicitation of Clients by Chiropractor Was Unconstitutional

Description The Arkansas high court held that the state board that regulates chiropractors could not enforce a regulation prohibiting most contact with potential clients, such as by telemarketing solicitation. This restriction on commercial speech did not address a specifically identified problem, nor was there a regulation narrowly tailored to address the problem.

Topic Constitutional Law

Key Words First Amendment; Commercial Speech; Regulation

C A S E S U M M A R Y

Facts The Arkansas Board of Chiropractic Examiners, which regulates chiropractors, held that Dr. Culpepper, a licensed chiropractor, violated its rules prohibiting certain contacts with prospective patients by using a telemarketing firm to help build his clientele. Culpepper protested that the restriction on client solicitation was a violation of his free speech right. The circuit court upheld the decision of the Board. Culpepper appealed.

Decision Reversed. The Board has a strong interest and a right to regulate chiropractors within their boundaries to maintain standards for the profession. However, a regulation that bans direct contact by chiropractors with potential patients is an unconstitutional infringement on commercial speech. The Board failed to provide evidence on how such a restriction could further an articulated governmental interest. The Board failed to have a regulation that was sufficiently narrowly tailored to meet articulated governmental interests. Parties who seek to uphold a restriction on commercial speech carry the burden of justifying it by demonstrating that real harms are at issue and showing how the restrictions would alleviate the harms.

Citation Culpepper v. Arkansas Board of Chiropractic Examiners, 36 S.W.2d 335 (Sup. Ct., Ark., 2001)

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Regulation Banning Solicitation of Clients by Chiropractor Was Unconstitutional
Description	The Arkansas high court held that the state board that regulates chiropractors could not enforce a regulation prohibiting most contact with potential clients, such as by telemarketing solicitation. This restriction on commercial speech did not address a specifically identified problem, nor was there a regulation narrowly tailored to address the problem.
Topic	Constitutional Law
Key Words	First Amendment; Commercial Speech; Regulation
C A S E S U M M A R Y
Facts	The Arkansas Board of Chiropractic Examiners, which regulates chiropractors, held that Dr. Culpepper, a licensed chiropractor, violated its rules prohibiting certain contacts with prospective patients by using a telemarketing firm to help build his clientele. Culpepper protested that the restriction on client solicitation was a violation of his free speech right. The circuit court upheld the decision of the Board. Culpepper appealed.
Decision	Reversed. The Board has a strong interest and a right to regulate chiropractors within their boundaries to maintain standards for the profession. However, a regulation that bans direct contact by chiropractors with potential patients is an unconstitutional infringement on commercial speech. The Board failed to provide evidence on how such a restriction could further an articulated governmental interest. The Board failed to have a regulation that was sufficiently narrowly tailored to meet articulated governmental interests. Parties who seek to uphold a restriction on commercial speech carry the burden of justifying it by demonstrating that real harms are at issue and showing how the restrictions would alleviate the harms.
Citation	Culpepper v. Arkansas Board of Chiropractic Examiners, 36 S.W.2d 335 (Sup. Ct., Ark., 2001)