Michael Anthony Capobianco, D.c. v. PAUL SUMMERS, Attorney General

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0237P (6th Cir.)
File Name: 04a0237p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHAEL ANTHONY
CAPOBIANCO, D.C.,
Plaintiff-Appellant,
v.
PAUL SUMMERS, Attorney
General, in his official
capacity as Attorney General
of the State of Tennessee;
TENNESSEE BOARD OF
CHIROPRACTIC EXAMINERS,
Defendants-Appellees.
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No. 02-5756
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 02-00063—Robert L. Echols, Chief District Judge.
Argued: December 10, 2003
Decided and Filed: July 23, 2004
Before: BOGGS, Chief Judge; BATCHELDER and
SUTTON, Circuit Judges.
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_________________
COUNSEL
ARGUED: Douglas R. Pierce, KING & BALLOW,
Nashville, Tennessee, for Appellant. Sue A. Sheldon,
OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellees. ON BRIEF: Douglas R. Pierce,
Alexander J. Passantino, KING & BALLOW, Nashville,
Tennessee, for Appellant. Sue A. Sheldon, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellees.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Plaintiff-
Appellant Michael Capobianco appeals the district court’s
order denying a preliminary injunction to prevent the
defendants from enforcing TENN. COMP. R. & REGS. § 0260-
2-.20(6)(a) (“the Rule”) during the pendency of this action
challenging the Rule’s constitutionality. Because we
conclude that the district court did not err in holding that the
factors the court was required to consider in deciding this
motion weigh in favor of the defendants, we affirm the order
of the district court.
BACKGROUND
Michael Anthony Capobianco, Doctor of Chiropractic,
(“Capobianco”) resides in Texas but has obtained a Tennessee
Chiropractic license and intends to practice in Tennessee. To
that end, Capobianco intends for his employees or agents to
solicit recent traffic accident victims in the State of Tennessee
to encourage them to seek chiropractic treatment at his
offices. A regulation promulgated by the Tennessee Board of
Chiropractic Examiners, the licensing board for all

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No. 02-5756 Capobianco v. Summers, et al. 3
practitioners of chiropractic in Tennessee, restricts such
solicitations. The pertinent portion of that regulation reads:
“Telemarketing or telephonic solicitation by licensees, their
employees, or agents to victims of accidents or disaster shall
be considered unethical if carried out within thirty (30) days
of the accident or disaster, and subject the licensee to
disciplinary action pursuant to T.C.A. § 63-4-114.” TENN.
COMP. R. & REGS. § 0260-2-.20(6)(a) (2000). While
chiropractors are the only medical professionals subject to
such a rule, attorneys in Tennessee are similarly prohibited
from soliciting accident victims within 30 days of an accident.
Capobianco filed suit in district court, alleging that the Rule
is an unconstitutional restraint on speech as well as a violation
of equal protection because only chiropractors (among
medical professionals) are subject to such a limitation, and
seeking declaratory and injunctive relief, attorneys’ fees and
costs. Capobianco moved for a preliminary injunction to
prevent enforcement of the Rule during the pendency of this
litigation. The district court held oral argument on the motion
and issued a memorandum opinion and order denying the
preliminary injunction. Capobianco timely appeals from that
denial.
DISCUSSION
We review for abuse of discretion a district court’s order
granting or denying a preliminary injunction. See Blue Cross
& Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield
Ass'n, 110 F.3d 318, 322 (6th Cir. 1997). A district court
abuses its discretion when it relies upon clearly erroneous
findings of fact, improperly applies the governing law, or uses
an erroneous legal standard. See id. Generally, in
considering a request for a preliminary injunction, the district
court should consider (i) whether the movant is likely to
succeed on the merits; (ii) whether the movant will suffer
irreparable injury in the absence of an injunction; (iii) whether
the injunction will cause substantial harm to others; and (iv)
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whether the injunction would serve the public interest. See
Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994).
These factors are not prerequisites but instead must be
balanced. See Dayton Area Visually Impaired Persons, Inc.
v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995). We have
repeatedly noted that the first factor is frequently dispositive
in the First Amendment context. See Deja Vu of Nashville,
Inc. v. Metro Gov’t of Nashville & Davidson County, Tenn.,
274 F.3d 377, 400 (6th Cir. 2001); Connection Distrib. Co. v.
Reno, 154 F.3d 281, 288 (6th Cir. 1998); Newsom v. Norris,
888 F.2d 371, 378 (6th Cir. 1989). The district court found
that Capobianco was unlikely to succeed on the merits of
either his First Amendment or Equal Protection challenge,
and that while Capobianco was unlikely to suffer irreparable
harm in the absence of an injunction, the issuance of the
injunction was likely to cause harm to others and would not
serve the public interest.
I. Capobianco’s First Amendment Challenge.
On appeal, the parties agree—as they did before the district
court—that the standard governing Capobianco’s First
Amendment challenge to this rule regulating commercial
speech is the intermediate scrutiny test set forth in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,
447 U.S. 557 (1980). The Supreme Court summarized this
test in Florida Bar v. Went For It, Inc., 515 U.S. 618, 624
(1995), in which the Court upheld the constitutionality of
Florida Bar rules prohibiting attorneys from contacting,
directly or indirectly, accident victims or their relatives for the
purposes of soliciting their business for a period of 30 days
following an accident. Central Hudson, the Court said,
permits the regulation of commercial speech “if the
government satisfies a test consisting of three related parts:
First, the government must assert a substantial interest in
support of its regulation; second, the government must
demonstrate that the restriction on commercial speech directly
and materially advances that interest; and third, the regulation

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No. 02-5756 Capobianco v. Summers, et al. 5
must be narrowly drawn.” Id. (internal quotation marks
omitted).
The Florida Bar Court agreed with the Bar that the State
has a substantial interest in protecting “the privacy and
tranquility of personal injury victims and their loved ones
against intrusive, unsolicited contact by lawyers.” Id. at 624-
25. Importantly, the Court recognized that the regulation at
issue there was designed as well to establish standards
regulating the practice of law and protecting the reputation of
the legal profession, and states have a “compelling interest in
the practice of professions within their boundaries, and . . .
broad power to establish standards for licensing practitioners
and regulating the practice of professions.” Id. (quoting
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)).
This circuit has held in an unpublished opinion that the
State of Tennessee has a substantial interest in “protecting the
privacy of accident victims, preventing overreaching by
chiropractors and their agents and regulating the profession.”
Silverman v. Summers, 28 Fed. Appx. 370, 374, 2001 WL
1671072 (6th Cir. 2001). The State of Tennessee asserts the
same interest in support of the Rule at issue here, and the
district court held that the State’s interest is substantial. We
find no substantive difference between the interest asserted in
Florida Bar and that asserted here, and we hold that the State
has satisfied the first part of the Central Hudson test.
Next, we must address whether the Rule directly and
materially advances the State’s substantial interest. In
Florida Bar, the Supreme Court reaffirmed the State’s burden
to present data, by way of studies or anecdotal evidence,
demonstrating the harms the regulation is designed to remedy
and the efficacy of the regulation in alleviating those harms.
See Florida Bar, 515 U.S. at 626. Here, the State presented
the district court with newspaper articles documenting both
the solicitation of accident victims by chiropractors or their
agents and the complaints and problems generated by those
solicitations; declarations of individuals complaining about
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having been contacted immediately after accidents by
telemarketers on behalf of chiropractors; and articles from
scientific and business publications covering aspects of
telephone solicitation relevant to that carried out by
chiropractors following accidents or disasters. We do not
write on a clean slate with respect to such regulations. In
Silverman, we reviewed the Tennessee statute that was the
precursor to this Rule, which banned virtually all solicitation
by chiropractors. That case included virtually the same
anecdotal and periodical evidence presented in the case before
us today, and we concluded that “the statute's prohibition on
speech is an effective way of addressing the asserted
interests.” Id. at *4.
The district court noted that in the proceedings on the
motion for a preliminary injunction, Capobianco did not
challenge the Rule on the basis of the second part of Central
Hudson’s test. Nor does his brief on appeal present any
cogent challenge based on that part. Capobianco does assert,
however, as part of his argument that the Rule fails the
effectiveness requirement of Central Hudson because some
chiropractors are not complying with it. Capobianco does not
provide any authority for equating the existence of some
scofflaws with a regulation’s lack of efficacy. To the extent
that Capobianco raises the second part of the Central Hudson
test, we hold that the State has satisfied it.
Capobianco’s strongest argument is based on the third part
of the Central Hudson test, namely, that, the Rule is not
narrowly drawn because chiropractic therapy is most effective
if started within days of an injury and because the State has
less restrictive ways of protecting the privacy of those victims
and of policing the integrity of the profession than a 30-day
ban on contacting the victims. We agree with the district
court that when viewed in the light of the most germane
authority, namely Florida Bar and Silverman, the Rule is
sufficiently narrowly drawn to meet the third part of the
Central Hudson test.

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No. 02-5756 Capobianco v. Summers, et al. 7
Capobianco’s argument that because contacting victims
quickly is important to chiropractic treatment, a 30-day time
limit is not narrowly tailored, was one of the points made by
the dissenting opinion in Florida Bar. See Florida Bar, 515
U.S. at 642-43 (Kennedy, J., dissenting). The district court
concluded that the fact that Florida Bar involved a rule
governing attorneys and the Rule in this case governs
chiropractors was not sufficient to distinguish this case from
Florida Bar in that respect. Indeed, as the district court
noted, the majority in Florida Bar must have considered and
rejected that precise argument. Like the district court, we find
no reason to do otherwise.
In Silverman, we ultimately concluded that the statute
failed the third part of the Central Hudson test because it
impermissibly banned:
Solicitation, in person or by live telephone contact, by
a licensee, or by an agent, servant, employee, or
independent contractor of a licensee, of a patient with
whom a licensee has no family or prior professional
relationship; however, this shall not prohibit solicitation
by targeted direct mail advertising or other forms of
written, radio, or television advertising; provided, that
the advertising does not involve coercion, duress, or
harassment and is not false, deceptive or misleading.
TENN CODE. ANN. § 63-4-114(5); see Silverman, 2001 WL
1671072 at *2. Chief among the reasons for our decision was
the fact that the statute contained no time limit at all on the
restriction of access to accident victims by chiropractors or
their agents. See id. at *5. We also noted that the imposition
of criminal sanctions weighed against the constitutionality of
the regulation. See id.
Here, Tennessee has corrected those problems. This Rule
limits the restriction on telemarketing or telephonic
solicitation of any accident victim to the 30-day period
following the accident. And the Rule contains no criminal
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sanction but simply subjects the licensee on whose behalf the
solicitation is made to disciplinary action. See TENN. COMP.
R. & REGS. § 0260-2-.20(6)(a). The Supreme Court has made
it clear that in the context of commercial speech, Central
Hudson’s “narrowly drawn” requirement does not mean that
the regulation employs the “least restrictive means” to
achieve its end. Florida Bar, 515 U.S. at 632 (citing Board
of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
(1989)). We think this time limit, identical to that in Florida
Bar, and this sanction, are sufficiently narrow to satisfy the
third part of the Central Hudson test.
We hold that the district court did not err in concluding that
Capobianco has demonstrated little likelihood of succeeding
on the merits of his First Amendment challenge to TENN.
COMP. R. & REGS. 0260-2-.02(6)(a).
II. Capobianco’s Equal Protection Challenge.
Capobiano also challenges the Rule under the Fourteenth
Amendment’s Equal Protection clause. The Equal Protection
clause guarantees that no State shall “deny to any person
within its jurisdiction the equal protection of the laws,” a
guarantee that the Supreme Court has characterized as a
requirement that “all persons similarly situated . . . be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985) (citing U.S. CONST. amend. XIV.).
Reviewing an equal protection challenge to a Kentucky
statute prohibiting attorneys or their agents from soliciting
accident victims within 30 days of their accidents, we held
that if a regulation impacting speech is content-neutral such
as a time, place, or manner restriction, then we utilize
intermediate scrutiny. See Chambers v. Stengel, 256 F.3d
397, 401 (6th Cir. 2001). Commercial speech restrictions, we
said, will “survive constitutional assessment if the implicated
measure was narrowly fashioned to further a significant
governmental interest.” Id. (quoting Grider v. Abramson, 180
F.3d 739, 748 (6th Cir. 1999)). And we went on to hold that
“[b]ecause regulation of commercial speech is subject to

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No. 02-5756 Capobianco v. Summers, et al. 9
intermediate scrutiny in a First Amendment challenge, it
follows that equal protection claims involving commercial
speech also are subject to the same level of review.” Id.
(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992)).
We have already concluded that the Rule at issue here
survives First Amendment scrutiny because it satisfies the
Central Hudson test, that is, the rule is narrowly drawn and
directly and materially advances a substantial government
interest. See Central Hudson, 447 U.S. at 564-65; see also
Florida Bar, 515 U.S. at 624. In Chambers, we held that the
Kentucky statute “is narrowly tailored to further substantial
governmental interests and, thus, comports with the Equal
Protection Clause.” Chambers, 256 F.3d at 403. Because we
see no basis for concluding that Griders’s “significant
governmental interest” and Central Hudson’s “substantial”
government interest are materially different, we conclude that
this Rule also comports with the Equal Protection Clause.
But Appellant also argues that because medical doctors are
not subject to such a regulation, the state has failed to treat
them “alike.” The district court noted, and we agree, that
because there is no single instance in the record of a medical
doctor contacting an accident victim within 30 days of an
accident, or any complaint by someone with reference to such
a contact, if Tennessee were to enact a parallel regulation for
medical doctors, it “would be implementing a solution to a
nonexistent problem.” The Equal Protection Clause does not
require that the state treat all persons alike. It requires only
that the state treat similarly situated persons alike, and that
where the state distinguishes between classifications of
persons, the distinction must “have some relevance to the
purposes for which the classification is made.” Chambers,
256 F.3d at 401 (quoting Baxstrom v. Herold, 383 U.S. 107,
111 (1966)). Here, the State has distinguished between
medical professionals who have a record of engaging in a
particular conduct that generates complaints about matters in
which the state has a substantial interest, and medical
professionals who do not. We conclude that the district court
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did not err in holding that Capobianco is unlikely to succeed
on the merits of his Equal Protection challenge to the Rule.
The district court held that the other factors the court is
required to balance in reviewing a demand for a preliminary
injunction weigh in favor of the State. Inasmuch as
Capobianco does not present any argument with regard to
these elements of the district court’s ruling, we will not
address them. Accordingly, we hold that the district court did
not abuse its discretion in denying Capobianco’s request for
a preliminary injunction.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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