Kentucky lawyers and chiropractors regain access to accident reports.
Kentucky lawmakers said barring access to the reports would protect residents from invasion of privacy by lawyers and chiropractors who send accident victims letters advertising their services. Opponents argued that the law limited lawyers' and chiropractors' ability to solicit new clients and consequently limited their commercial speech rights.
Lawyers, chiropractors, and the publisher of The Accidental Journal, a proposed commercial newspaper that intends to publish copies of the accident reports, challenged the law. They also challenged another law that allowed the state to set "a reasonable fee" for report copies, but this issue was remanded by the Sixth Circuit for further consideration.
The statute provided that all state police accident reports were confidential. A single exemption granting newspapers access to the reports, however, proved to be the law's unraveling.
"There is no rational basis for a statute which purports to advance the governmental interest in protecting the privacy of accident victims to allow their names and addresses to be published or broadcast to the general public. Having one's name ... and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney," the Sixth Circuit stated. (Amelkin v. McClure, No. 96-5942, 1999 WL 73993 (6th Cir. Feb. 17, 1999).)
The court cited a constitutional test set forth in 1980 by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission. (447 U. S. 557 (1980).) The test applies four criteria to determine if the regulation is a permissible limit on commercial speech: (1) the expression is protected by the First Amendment, (2) the asserted government interest is substantial, (3) the regulation directly advances the government interest asserted, and (4) the regulation is not more extensive than is necessary to serve that interest.
The Kentucky statute failed to meet the third provision because it allowed news organizations access to the reports.
"[T]he true motivation behind [the statute] appears to be directed at preventing attorneys and chiropractors from looking at accident reports, with the secondary consequence that direct mail solicitation practices would be curtailed," the opinion stated.
"[The opinion] allows lawyers to use accident reports for commercial purposes," said Donald Cox of Louisville, Kentucky, attorney for the plaintiffs. Cox said this marketing technique shortens the time it takes for lawyers to build a practice.
The state has asked the court to rehear the case en banc.
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|Date:||Jun 1, 1999|
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