                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-1234



D.C. DARCEY R. WALRAVEN,

                Plaintiff - Appellant,

          v.


NC BOARD OF CHIROPRACTIC EXAMINERS,

                Defendant - Appellee,

          and

ROY COOPER, In his official capacity as Attorney General for
the State of North Carolina Department of Justice; RICHARD
DAVIS, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; THOMAS
BROWN, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; DENNIS
HALL, In his official capacity as the duly appointed member of
the North Carolina Board of Chiropractic Examiners; JAMES
BROWN, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; SKIP
BRADLEY, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; ROBERT
STROUD, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; STATEN
WILCOX, In his official capacity as the duly appointed member
of the North Carolina Board of Chiropractic Examiners; R.
STEVE BOWDEN, In his official capacity as the duly appointed
member of the North Carolina Board of Chiropractic Examiners,

                Defendants.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:04-cv-00321)
Argued:   January 29, 2008                Decided:   April 9, 2008


Before GREGORY and SHEDD, Circuit Judges, and Patrick M. DUFFY,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James F. McCarthy, III, KATZ, TELLER, BRANT & HILD,
Cincinnati, Ohio, for Appellant. James C. Fuller, Jr., Davidson,
North Carolina; Vance Callahan Kinlaw, Greensboro, North Carolina,
for Appellee. ON BRIEF: Prosser D. Carnegie, MCINTOSH LAW FIRM,
P.C., Davidson, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Appellant Darcey R. Walraven, D.C., (“Walraven”) appeals the

order of the district court denying her motion for summary judgment

and granting the Appellees’ cross-motion for summary judgment.   We

affirm.



                                 I.

     In July 2004, Walraven filed her complaint and motion for

temporary restraining order and injunction against Roy Cooper, in

his official capacity as Attorney General for the State of North

Carolina,1 and Richard Davis, Thomas Brown, Dennis Hall, James

Brown, Skip Bradley, Robert Stroud, Jr., Staten Wilcox, and R.

Steve Bowden, in their official capacities as the duly appointed

members of the North Carolina Board of Chiropractic Examiners

(collectively “the Board”).   In her complaint, Walraven challenged

certain North Carolina statutes that limit the advertising that she

may undertake in the pursuit of her profession as a chiropractor.2


     1
      Cooper moved to be dismissed, asserting that the North
Carolina Attorney General does not enforce the statute and rules
regarding chiropractic practice in North Carolina, and Walraven
stipulated to his dismissal.
     2
      Specifically, Walraven challenged sections 90-401 and 90-
401.1 of the North Carolina General Statutes and section
10.0303(a)-(b) of the North Carolina Administrative Code. Section
90-401 of the North Carolina General Statutes provides:

     A health care provider shall not financially compensate
     in any manner a person, firm, or corporation for
     recommending or securing the health care provider’s

                                 3
     employment by a patient, or as a reward for having made
     a recommendation resulting in the health care provider’s
     employment by a patient. No health care provider who
     refers a patient of that health care provider to another
     health care provider shall receive financial or other
     compensation from the health care provider receiving the
     referral as a payment solely or primarily for the
     referral.    This section shall not be construed to
     prohibit a health care provider’s purchase of advertising
     which does not entail direct personal contact or
     telephone contact of a potential patient.

N.C. Gen. Stat. § 90-401 (1994).       Section 90-401.1 provides:

     It shall be unlawful for a health care provider or the
     provider’s employee or agent to initiate direct personal
     contact or telephone contact with any injured, diseased,
     or infirmed person, or with any other person residing in
     the injured, diseased, or infirmed person’s household,
     for a period of 90 days following the injury or the onset
     of the disease or infirmity, if the purpose of initiating
     the contact, in whole or in part, is to attempt to induce
     or persuade the injured, diseased, or infirmed person to
     become a patient of the health care provider.        This
     section shall not be construed to prohibit a health care
     provider’s use of posted letters, brochures, or
     information packages to solicit injured, diseased, or
     infirmed persons, so long as such use does not entail
     direct personal contact with the person.

N.C. Gen. Stat. § 90-401.1 (1994). Lastly, the relevant portion of
the North Carolina Administrative Code provides:

     (a)    In-Person and Telephone Solicitation of Auto
     Accident Victims. In order to protect the public from
     misrepresentation, coercion or undue influence, it shall
     be unlawful for a doctor of chiropractic, or the doctor’s
     employee, to initiate direct personal contact or
     telephone contact with any person who has been injured in
     a motor vehicle collision, or with any person residing in
     the injured person's household, for a period of 90 days
     following the collision, if the purpose of initiating
     contact is, in whole or part, to solicit the injured
     person to become a patient of the doctor.

     (b)   Acceptance of Referrals From Runners.     It shall be

                                   4
These statutes preclude Walraven and/or anyone acting on her behalf

from soliciting, either in person or telephonically, prospective

patients who may need chiropractic treatment as a result of a motor

vehicle accident for a period of 90 days following the accident.

     In her complaint, Walraven asserted that these North Carolina

statutes    constitute       an   unreasonable     and    unconstitutional

restriction   on   commercial     speech   in    violation   of   the   First

Amendment to the United States Constitution.             In support of her

challenge, Walraven proposed a less restrictive alternative to

North Carolina’s regulatory scheme; specifically, Walraven proposed

a regulatory scheme akin to Ohio’s that would permit the kind of

marketing that she seeks to undertake.3

     In    response,   the    Board   asserted    that   North    Carolina’s

regulatory scheme is a lawful restriction on commercial speech

reasonably tailored to achieve substantial government interests,

which include the following: (1) to eliminate overreaching or the


     unlawful for a doctor of chiropractic to accept as a
     patient any person injured in an automobile accident who
     was referred by a runner. As used in this Rule, the term
     “runner” means any person, firm or corporation that
     routinely obtains the names of injured persons from motor
     vehicle accident reports or other public records and then
     contacts those persons to induce them to seek medical or
     chiropractic treatment or pursue legal claims.

21 N.C. Admin. Code 10.0303(a)-(b) (1994).
     3
      Walraven moved to North Carolina from Ohio, where she had
been permitted, pursuant to Ohio Admin. Code § 4734-9-02 and
certain regulations contained therein, to solicit patients
telephonically following an accident.

                                      5
exercise of undue influence by health care providers; (2) to

preserve the privacy of injured or ill persons and their immediate

families; (3) to protect against false or misleading advertising

and “bait and switch” advertising practices; (4) to protect against

one-sided   presentations    that   encourage         speedy     and    uninformed

decision-making concerning the availability, nature, and price of

health care services and the necessity of obtaining such services;

(5) to minimize situations where the exercise of professional

judgment by a health care provider is clouded by pecuniary self-

interest; (6) to protect persons whose injury or illness makes them

more vulnerable and for whom telephonic solicitation would add to

their level of distress; and (7) to maintain standards among

members of licensed health care providers.

     The district court denied Walraven’s motion for a temporary

restraining   order    as   well   as       her   motion   for   a     preliminary

injunction.    The parties subsequently filed cross-motions for

summary judgment.     In a written order dated February 27, 2007, the

district court denied Walraven’s motion for summary judgment and

granted the Board’s motion for summary judgment, finding that the

Board satisfied its burden to establish the constitutionality of

the North Carolina statutes at issue.




                                        6
                                   II.

                                       A.

     This court reviews an award of summary judgment de novo. Hill

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th

Cir. 2004) (en banc).       Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.”                Fed. R. Civ. P.

56(c).

                                       B.

     The Supreme Court has extended the protections of the First

Amendment to purely commercial speech; nevertheless, the Court has

afforded    commercial   speech   “a    limited   measure    of   protection,

commensurate with its subordinate position in the scale of First

Amendment values, while allowing modes of regulation that might be

impermissible in the realm of noncommercial expression.”              Ohralik

v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978); see also Florida

Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (quoting the

same).     In view of this, the regulation of commercial speech is

subject to intermediate scrutiny under the traditional framework

set forth by the Supreme Court in Central Hudson Gas & Elec. Corp.

v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).                 See

Adventure Comms., Inc. v. Kentucky Registry of Election Fin., 191


                                       7
F.3d 429, 439 (4th Cir. 1999) (citing Central Hudson, 447 U.S. at

566).    In Central Hudson, the Court stated:

     In commercial speech cases, then, a four-part analysis
     has developed. At the outset, we must determine whether
     the expression is protected by the First Amendment. For
     commercial speech to come within that provision, it at
     least must concern lawful activity and not be misleading.
     Next, we ask whether the asserted governmental interest
     is substantial.     If both inquiries yield positive
     answers, we must determine whether the regulation
     directly advances the governmental interest asserted, and
     whether it is not more extensive than is necessary to
     serve that interest.

447 U.S. at 566.    Thus, for a commercial speech regulation to be

constitutionally permissible under the Central Hudson test, the

speech   in   question   must   concern   lawful   activity    and    not   be

misleading; the asserted governmental interest to be served by the

regulation must be substantial; and the regulation must be narrowly

drawn.    See Florida Bar, 515 U.S. at 623-34; see also Ficker v.

Curran, 119 F.3d 1150, 1152 (4th Cir. 1997) (citing Central Hudson

and Florida Bar).    “The party seeking to uphold a restriction on

commercial speech carries the burden of justifying it.”          Bolger v.

Youngs Drug Prods. Corp., 463 U.S. 60, 71, n. 20 (1983).



                                  III.

     Here, as the district court concluded, there is no question

that the first two prongs of the Central Hudson test are satisfied.

That is to say, it is clear that the non-deceptive advertising of

chiropractic    services   is    protected   speech    under    the    First


                                    8
Amendment,     and      North    Carolina        has     several    legitimate      and

substantial     governmental          interests    in    regulating     solicitation

concerning chiropractic services.                Thus, the real issue is whether

North      Carolina’s     regulatory         scheme      directly     advances      the

governmental interests asserted and whether it is more extensive

than is necessary to serve that interest.

      To    establish     that    the    regulation       directly     advances     the

governmental interests asserted, the Board must “demonstrate that

the harms it recites are real and that its restriction will in fact

alleviate them to a material degree.”                  Edenfield v. Fane, 507 U.S.

761, 770-71 (1993).        The Supreme Court has permitted governmental

bodies to justify speech regulations by reference to studies and/or

anecdotal evidence.        In fact, the Court has permitted litigants to

justify speech regulations with reference to “studies and anecdotes

pertaining to different locales altogether . . . .”                    Florida Bar,

515 U.S. at 628 (citations omitted).

      Here, the district court agreed with Walraven that “the

regulations     at   issue      may    not   materially     advance    some    of   the

governmental interests that the Board asserts.”                            Walraven v.

Cooper, et al, No. 3:04-cv-321-W, 2007 WL 656284, at *2 (W.D.N.C.

Feb. 27, 2007).      Nevertheless, the district court determined that

the   challenged     regulations         materially       advance     at    least   one

substantial governmental interest – that is, “the protection of a

particular segment of the public from invasive (and potentially


                                             9
coercive         and/or      misleading)        solicitation        tactics     under

circumstances in which they may be particularly vulnerable.”                     Id.

The court quoted the following passage from its previous order

denying Walraven’s motion for a preliminary injunction:

       The [Board] proffered evidence in the form of affidavits,
       exhibits and testimony, which illustrates the type of
       harassment personal injury victims were often subject to
       in the days following an injury, prior to the enactment
       of the various statutes in question.        The evidence
       offered by the [Board] also show[s] that victims of
       personal injury are often in a heightened state of
       vulnerability and distress in the days following an
       injury, and that the statutes in question have provided
       some form of relief from in-person and telephone coercion
       by chiropractors or runners.

Id.    at   *3    (quoting    the   court’s     July   23,   2004    order    denying

preliminary injunction).

       Having found the third prong of the Central Hudson test

satisfied, the district court next considered the final prong of

the Central Hudson test, namely, whether the regulatory scheme is

more    extensive      than    is   necessary     to   serve   the     governmental

interest.        The district court noted that to establish this final

prong, the Board needed to demonstrate a reasonable “fit between

the legislature’s ends and the means to accomplish those ends, a

fit    that      is   not   necessarily     perfect,     but   reasonable;      that

represents not necessarily the single best disposition but one

whose scope is in proportion to the interest served, that employs

not necessarily the least restrictive means but . . . a means

narrowly tailored to achieve the desired objective.”                   Florida Bar,


                                           10
515 U.S. at 632 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 469, 480 (1989)) (internal quotation marks omitted).

     In addressing the final prong of the Central Hudson test, the

district court first evaluated whether the challenged statutes are

overly broad, such that they restrict more speech than is necessary

to accomplish the state’s objectives.     In rejecting Walraven’s

assertion that the statutes amount to a blanket ban, the court

stated:

     While the Court agrees that the challenged regulations
     significantly burden Dr. Walraven’s ability to advertise
     by effectively precluding all telephonic contact with the
     class of persons who would be most receptive to a
     personal invitation to see a chiropractor, this is a far
     cry from a “blanket ban” on Dr. Walraven’s commercial
     speech.    Dr. Walraven retains the ability to reach
     prospective car accident clients by means of the mass
     media and even targeted mailings, and she may solicit
     potential clients in-person or by telephone so long as
     she does not target them on account of their status as
     recent car accident victims.       By singling out for
     regulation only speech which is particularly susceptible
     to fraud and overreaching (i.e., in-person and telephonic
     solicitation) and which is targeted at a protected class
     (i.e., recent victims of car accidents), the North
     Carolina regulations are easily distinguished from the
     laws of other jurisdictions which have been struck down
     as overly broad in the cases cited by Dr. Walraven.

Walraven, 2007 WL 656284, at *3.

     The court next examined whether Walraven’s proposed less-

restrictive alternative would be as feasible and effective as North

Carolina’s current scheme.    In considering Walraven’s proposed

script, from which she asserted that her contracted telemarketers

would be instructed not to deviate, the court noted that “the


                                11
content of a telephonic solicitation is inherently more difficult

to    regulate    than    the     content   of   a    written     solicitation     –   a

distinguishing feature that may justify a prophylactic ban of the

former but not the latter.”             Id. at *4 (citing Shapero v. Kentucky

Bar Assoc., 486 U.S. 466, 476 (1988); Nat’l Funeral Servs., Inc. v.

Rockefeller, 870 F.2d 136, 144 (4th Cir. 1989); and Gregory v.

Louisiana Bd. of Chiropractic Exam’rs, 608 So.2d 987 (La. 1992)).

The district court further noted:

       Written solicitations are capable of being screened for
       compliance by a state regulatory authority before they
       are ever mailed. By contrast, telephonic solicitations
       (even scripted ones) do not take place in a controlled
       environment and improper deviations from the script are
       not susceptible to detection until after the harm is done
       (provided that a disgruntled consumer even bothers to
       report the violation to the relevant authorities), and
       then the only recourse in the event of a violation likely
       would be against a party (the “runner” or telemarketer)
       not necessarily subject to the Board's disciplinary
       jurisdiction.    Furthermore, even assuming that Dr.
       Walraven’s alternative would be effective at ensuring the
       truthful and tactful content of the solicitation, her
       proposal does not address the concerns that the Board has
       advanced for protecting the privacy of car accident
       victims from a barrage of invasive and subtly coercive
       phone calls in the immediate wake of experiencing a
       traumatic life event.

Id.    Based on the foregoing, the district court concluded that the

Board   satisfied        its   burden    under     the   Central    Hudson    test     to

demonstrate       that    North    Carolina’s        regulatory    scheme    directly

advances    the    governmental         interest     asserted     and   is   not   more

extensive than is necessary to serve that interest.




                                            12
                                 IV.

     Having thoroughly reviewed the district court’s order and the

parties’ briefs and submissions on appeal, and having heard oral

argument in this case, we conclude, based on the reasons set forth

by the district court in its order dated February 27, 2007, that

the Board satisfied its burden under the Central Hudson test to

establish the constitutionality of the North Carolina regulations

at issue.   Accordingly, we affirm the district court’s award of

summary judgment in favor of the Board and denial of summary

judgment in favor of Walraven.



                                                         AFFIRMED




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