DeSalvo v. State

624 So. 2d 897, 1993 WL 335294
CourtSupreme Court of Louisiana
DecidedSeptember 3, 1993
Docket92-CA-2882
StatusPublished
Cited by26 cases

This text of 624 So. 2d 897 (DeSalvo v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeSalvo v. State, 624 So. 2d 897, 1993 WL 335294 (La. 1993).

Opinion

624 So.2d 897 (1993)

Vincent DeSALVO and Jack Harris
v.
STATE of Louisiana and the Department of Public Safety and Corrections.

No. 92-CA-2882.

Supreme Court of Louisiana.

September 3, 1993.

*898 Howard P. Elliott, Foye L. Lowe, Jr., Baton Rouge, for applicant.

Vincent J. DeSalvo, Jack P. Harris, Baton Rouge, Richard P. Ieyoub, Atty. Gen., James M. Ross, Asst. Atty. Gen., for respondent.

Robert E. Winn, Raymond P. Ward, New Orleans, for amicus curiae, State Farm Mut. Auto Ins.

DENNIS, Justice.[*]

The crucial question in this case is whether a law which prohibits disclosure of state motor vehicle accident reports to anyone except a party to an accident, his or her representative, attorney and insurer, the press, and contractors for on-line driving records, violates the First Amendment rights of lawyers engaged in advertising who seek to gather information from the reports targeting potential clients for mass direct mail solicitations. The trial court declared the law unconstitutional as violative of the state constitutional right of equal protection of the laws. Although that court did not reach the plaintiffs' First Amendment challenge, it indicated that the law may be unconstitutional on this ground also. The State of Louisiana and Department of Public Safety and Corrections appealed, and the plaintiffs re-urged all of their constitutional challenges, including their First Amendment attack. We reverse.

Lawyer advertising is in the category of constitutionally protected commercial speech. The First Amendment permits a state to impose restrictions on the time, place and manner of commercial advertising, as with regard to other varieties of speech, provided such restrictions are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. The law in question meets all of these requirements. The law is *899 content neutral; it does not seek to regulate or censor lawyer advertising messages. The law leaves open all channels of lawyer advertising, including direct mail solicitations. The state's significant interest in protecting the right to privacy of individuals and their freedom from unnecessary public scrutiny is substantially furthered by the law. For similar and additional reasons hereinafter assigned, the law does not violate the state constitutional right of equal protection of the laws or right to examine public documents. La. Const.1974, Art. I, § 3; Art. XII, § 3.

BACKGROUND

The driver of a vehicle involved in an accident resulting in injury, death, or property damage in excess of $100 is required to file an accident report with the Department of Public Safety or, if the accident occurred in a city, with the city's police department. La.R.S. 32:398(A)-(D). Police departments are required to forward such reports to the state Department of Public Safety. Id. (D)(3). Formerly, the state police, any local police department, or any sheriff's office was required to provide copies of accident reports to any interested person upon request. Id. (D)(3) (Supp.1990). The Department was also required to permit any person the age of majority to inspect, copy, or reproduce any accident report as a public record. La.R.S. 44:31 (Supp.1978); See Thornton v. Department of Public Safety, 536 So.2d 595 (La. App. 1st Cir.1988).

By Act 878 of 1992, the legislature added La.R.S. 32:398(H) to provide that the reports of motor vehicle accidents shall be confidential, shall be exempt from the provisions of the public records law, La.R.S. 44:1 et seq., and shall be made available only to the parties to the accident, parents or guardians of a minor who is a party to the accident, the insurers of any party which is the subject of the report, or the succession representatives of those parties, or to the attorneys of the parties or succession representatives, or to a news-gathering organization that requests documents related to the accident. Also, La. R.S. 32:398(H) provides that the public records law, which generally requires disclosure of state records to the public, shall not apply to vehicular accident reports but that the state may sell them or "other driving record information to consumers of on-line driving records under written contract." Id.

The plaintiffs, attorneys who previously obtained the names and addresses of parties to auto mishaps from the accident reports for direct mail solicitations, brought this action for a judgment declaring Act 878 of 1992 unconstitutional, contending that the law, by prohibiting their access to accident reports, denied them equal protection of the laws in violation of Article I, § 3 of the state constitution, violated their First Amendment right to commercial speech, and denied them the right to examine public documents in violation of Article XII, § 3 of the state constitution. After a hearing on the merits, the district court rejected the plaintiffs' claim that their state constitutional right to inspect public documents had been violated. However, the court declared the law unconstitutional as violative of the plaintiffs' state equal protection rights. Although the trial court did not formally reach the First Amendment issue, it plainly indicated that it found merit in the argument. The defendants appealed. La. Const.1974, Article V, § 5(D)(1).

I.

As a general rule, the First Amendment provides that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). With respect to noncommercial speech, the Supreme Court has sustained content-based restrictions only in the most extraordinary circumstances. See Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, and the greater objectivity and hardiness of commercial speech, content-based restrictions on commercial *900 speech may be permissible. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, n. 24, 96 S.Ct. 1817, 1830, n. 24, 48 L.Ed.2d 346 (1976). Lawyer advertising is in the category of constitutionally protected commercial speech. Shapero v. Kentucky Bar Assn., 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); See Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

In Central Hudson Gas & Electric Corp. v. Public Service Comm'n,

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