Tillman v. Miller , 133 F.3d 1402 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-9191
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D. C. Docket No. 1:95-CV-1594-CC
BURTON L. TILLMAN,
Plaintiff-Appellee,
versus
ZELL MILLER, in his official capacity as
Governor of the State of Georgia, THURBERT E.
BAKER, in his official capacity as Attorney
General of the State of Georgia,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 26, 1998)
Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior District
Judge.
* Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern
District of Missouri, sitting by designation.
PER CURIAM:
The district court, with a written opinion, granted plaintiff -- a
lawyer who advertises on television his services about workers’
compensation -- summary judgment, declaring that Georgia’s
“Workers’ Compensation Truth in Advertising Act of 1995"1 violated
the First Amendment because the Act unjustifiably compelled
speech. We affirm.
1
See O.C.G.A. § 34-9-30 et seq. The Act, which was
scheduled to become effective in July 1995, provides:
Any television advertisement, with broadcast originating
in this state, which solicits persons to file workers’
compensation claims or to engage or consult an attorney,
a medical care provider, or clinic for the purpose of giving
consideration to a workers’ compensation claim or to
market workers’ compensation insurance coverage shall
contain a notice, which shall be in boldface Roman font 36
point type and appear in a dark background and remain on
the screen for a minimum of five seconds as follows:
NOTICE
Willfully making a false or misleading statement or
2
Even if we assume (1) that the principles established by
Zauderer v. Office of Disciplinary Counsel of Supreme Court of
Ohio, 471 U.S. 626 (1985), apply here and not the seemingly
more stringent standards for the state of Central Hudson Gas
& Electric Corp. v. Public Service Commission of New York, 447
U.S. 557 (1980), and even if we assume (2) that the Act, which
sets out its purpose expressly,2 can be defended by the State
on
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representation to obtain or deny workers’ compensation
benefits is a crime carrying a penalty of imprisonment
and/or a fine of up to $10,000.00. O.C.G.A. § 34-9-31.
2
The purpose of the Act is expressed this way:
to assure truthful and adequate disclosure of all material
and relevant information in advertising which solicits
persons to engage or consult an attorney or a medical care
provider for the purpose of asserting a workers’
compensation claim.
O.C.G.A. § 34-9-30(b).
3
grounds that may possibly be different from those expressed
in
the Act, and even if we assume (3) that a state may compel
some disclosure in a commercial advertisement for a reason
other than preventing the ad from deceiving or misleading
consumers, Georgia has failed to show that what it seeks to
compel plaintiff to do is justified and not too burdensome.
Plaintiff advertises on television, but he is not in the
telecommunications business. The advertisements in this case
are not deceptive or misleading. The message, which Georgia
wishes plaintiff to carry piggyback for free on the advertisement
for which he pays, is not tied to an inherent quality of the thing
he is trying to sell -- his legal services. And Georgia has
presented no proof that television advertising of legal services
causes fraudulent workers’ compensation claims to be filed or
that including the pertinent compelled disclosure would likely
4
significantly reduce fraudulent claims in Georgia.3 In such
circumstances, Georgia is not justified in placing, on a
television advertiser, the burden of the cost of educating the
public about the criminal penalties for filing fraudulent claims.4
AFFIRMED.
3
California has a statute that requires all advertising -- print,
radio, and television -- by those who solicit persons to file
workers’ compensation claims or to consult with anyone
regarding a compensation claim to carry a disclosure. See Cal.
Lab. Code 5430 et seq. Georgia says that once California
enacted its statute the total number of workers’ compensation
claims in California dropped by forty percent. But we do not
know what to make of this information because we cannot
know how many fraudulent claims were deterred. We are not
told whether the percentage of fraudulent claims declined (or
that even the number of fraudulent claims declined). In
addition, California’s statute is materially different from
Georgia’s Act.
4
This undue burden is, in fact, not a trifling one. Mr. Tillman’s
television ads last thirty (30) seconds, and the State wants to
share five (5) of them for its general education message.
5