National Funeral Services, Inc. v. Rockefeller

KISER, District Judge,

concurring:

I concur with the results reached by Judge Hall and in his opinion except as to his analysis of the First Amendment issue.

I write separately to point out that determining whether a regulation is aimed at the content of speech or the time, place, or manner in which speech is delivered is no easy task. In this case, unlike Judges Hall and Butzner (in his dissenting opinion in Guardian Plans), I think the regulations come down on the side of time, place, and manner. As Justice Stevens observed, “Any student of history who has been reprimanded for talking about the World Series during a class discussion of the First Amendment knows that it is incorrect to state that a ‘time, place, or manner restriction may not be based upon either the content or subject matter of speech.’ ” Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 544-45, 100 S.Ct. 2326, 2337-38, 65 L.Ed.2d 319 (1980) (Stevens, J., concurring). Sometimes it is the very content of the speech that makes it inappropriate in a particular time or place. A student can talk about the World Series after history class.

Both state and federal governments have determined that the funeral industry needs regulating to prevent deceptive practices. In an industry where regulation is both appropriate and necessary, the government may have a strong interest in regulating speech. For example, speech is necessarily a part of many sales transactions. Regulation of certain speech may be an essential *147 part of a government regulation scheme for an entire industry.

Commercial speech, like other speech, is subject to reasonable time, place, and manner restrictions that serve a significant government interest and leave open ample alternative channels of communication. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). Some time, place, and manner restrictions may be directed at speech on a particular topic, and yet such regulations are not necessarily “content-based.” For example, the Supreme Court found that a restriction on the location of adult theaters was not content-based, because the regulation was aimed at the secondary effects of the theaters on the surrounding community. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986).

The regulation of lawyers’ solicitation provides a natural analogy to the regulation of funeral directors’ sales pitches. Both situations offer the potential for trained professionals to overwhelm the unwary consumer. The Supreme Court has permitted the states to ban in-person soliciting by lawyers because of the special dangers presented by such speech. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 457, 98 S.Ct. 1912, 1919, 56 L.Ed. 2d 444 (1978). Even though the ban on soliciting was aimed solely at lawyers, the Court did not subject the regulation to the rigorous scrutiny required for content-based regulation. In fact, the Court held that such regulations required less scrutiny:

In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component. While this does not remove the speech from the protection of the First Amendment, as was held in Bates and Virginia Pharmacy, it lowers the level of appropriate judicial scrutiny.

Id. at 457, 459, 98 S.Ct. at 1919,1920. That the regulation of speech in Ohralik was permissible under a time, place, and manner analysis becomes even more apparent when it is compared with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). In Bates, Arizona sought to ban lawyer solicitation through advertising media. The Court struck down Arizona’s regulation as being too broad but left open the question of whether a state could ban in-person solicitation. Then, in Ohralik, the Court addressed the question of in-person solicitation and found that a state’s ban on this method of advertising was permissible. In both cases, the state regulations were aimed at lawyer solicitation of prospective clients, but the deciding difference was the manner of solicitation which was forbidden. From a comparison of these two cases, it seems to me that reasonable regulations governing the time, place, and manner of advertising by members of a regulated profession will not be subject to the heightened scrutiny applied to content-based regulations.

In my view, the West Virginia regulations are a permissible time, place, and manner restriction on the speech of funeral directors, a necessary part of a general scheme for regulating the funeral industry. As Judge Hall notes, the regulations leave open ample alternative channels of communication. If the regulations had banned all in-person soliciting in order to end abuses in the funeral industry, the regulations undoubtedly would be struck down as being too broad. Cf. United States v. Kokinda, 866 F.2d 699, 706 (4th Cir.1989). On the other hand, a more narrow regulation simply could not be an effective means of combatting the potential abuses of in-person solicitation. See Ohralik, 436 U.S. at 466, 98 S.Ct. at 1924. Thus, the West Virginia regulations are narrowly tailored to serve the significant state interest of preventing abuses in the funeral industry. I believe the regulations should be upheld as a valid time, place, and manner restriction.