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45. Which of the following arguments would be most helpful to the state in defending the constitutionality of the law?
In response to these complaints, the legislature enacted a law prohibiting medical care providers from soliciting any accident victim by telephone within 30 days of his or her accident.
A state legislature received complaints from traffic accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any compensable injuries.
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The initial benchmark to determine whether the commercial speech concerns a lawful activity that is not misleading or fraudulent.
The regulation must serve a substantial government interest.
It must directly advance that interest.
It must be narrowly tailored to serve the substantial interest. This fourth part of the test does not require that the least restrictive means be used. Rather, it must be a reasonable fit between the government interest and the means chosen. Bd. of Tr. of State University of New York v. Fox, 492 U.S. 469 (1989).
The U.S. Supreme Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state's substantial interest in protecting the privacy of the victims. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).
C is correct. The First Amendment invalidates any law regulating commercial speech unless the law is narrowly tailored to serve a substantial government interest. The Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state's substantial interest in protecting the privacy of the victims. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). Thus, this would be the most effective argument for defending the constitutionality of the law.
A is incorrect. It is true that the law regulates only commercial speech and the First Amendment does not protect commercial speech that is misleading, but the facts state that the phone calls were only «occasionally» misleading. The First Amendment protects truthful commercial speech subject to the law. Therefore, this would not be the most effective argument.
B is incorrect. Although the law regulates only commercial speech, the First Amendment invalidates any law regulating such speech unless the law is narrowly tailored to serve a substantial government interest. The rational relationship between the restrictions imposed by the law and a legitimate state interest is not sufficient to satisfy this standard.
D is incorrect. The law at issue is not a time, place, and manner regulation because it restricts speech based on its content. Because the law is a content-based regulation of commercial speech, it is valid only if it is narrowly tailored to serve a substantial government interest.