Tuesday, April 5, 2011

Workers' Compensation in Texas

It was way back in 1973, when the late comedian George Carlin was thrown into the government’s spotlight for his stand-up routine that included the “seven dirty words.” A father complained to the Federal Communications Commission because his son had heard the material on the radio, which led to the Supreme Court case, FCC v. Pacifica Foundation 438 U.S. 726 (1978). The case became a landmark decision in defining the powers of the FCC. The Supreme Court ruled that Carlin’s act was “indecent but not obscene, and subject to restriction.”

Fast forward to 2011, another lawsuit has been filed, this one in Lubbock, Texas, regarding the use of “forbidden” words. John Gibson, a prominent workers’ compensation lawyer, is suing the Texas Department of Insurance Division of Workers’ Compensation claiming that state regulators are violating his First Amendment rights. On February 7, 2011, Gibson was sent a cease-and-desist letter telling him to stop using certain terms on the legal blog he runs and writes for. On Feb. 22, Gibson filed a suit in federal court.

The law in question, according to the Texas Labor Code Section 419.002, states the forbidden use of the terms “Texas Workers’ Compensation,” or the use of the term “Texas” along with either “Workers’ Compensation” or “Workers’ Comp.” in connection with “any impersonation, advertisement, solicitation, business name, business activity, document, product or service.”

Gibson’s blog is called TexasWorkersCompLaw.com, so the ban on those words is obviously problematic for his mission, which is, “to promote critical and spirited discourse” about developments and issues in that area of Texas law.

The complaint was filed in John Gibson, et al. v. Texas Department of Insurance, Division of Workers’ Compensation, et al. in the U.S. District Court for the Northern District of Texas in Lubbock. Basically, the law prohibits the use of the words “workers’ comp” and “Texas” together in any way. Gibson is seeking declaratory and injunctive relief and attorney’s fees against the Texas Department of Insurance, Division of Workers’ Compensation and Rod Bordelon, commissioner of the Texas Department of Insurance. His lawsuit claims that the words are not the intellectual property of the state, but are in the public domain, that no governmental interest is served by regulating them, and that forbidding their use is an impermissible restraint on free speech.

Lawyer Robert S. Hogan, who is representing Gibson, apparently used the terms over and over again in the complaint to persuade the court and to show the ramifications of the new provisions added to the law in 2005, but only now strictly enforced. According to the Texas Department of Insurance, the changes were made to stop deliberately confusing advertisements by insurance companies. Violations are punishable to fines up to $5,000 a day.

Gibson claims the law is too broad to be enforced and has example after example of what else this would mean if the law were to stay on the books as is. His lawsuit says, "For instance, under the terms of the regulation, a physician or medical clinic would be prohibited from advertising that they accept workers' compensation patients in Texas."

Other conclusions include that lawyers are also strictly prohibited from using the phrase "Board Certified in Workers' Compensation Law by the Texas Board of Legal Specialization," which Gibson actually is, and candidates for public office cannot discuss in campaign literature or speeches the needs for reforming the “Texas Workers’ Compensation” system.

According to Gibson, the statute appears to be unconstitutional on its face. This topic is yet to be resolved, but it is likely that the court will rule in favor of Gibson and amend this law.

In 2006, the state of New York proposed new restrictions on Internet communications and other forms of attorney advertising that directly impacted attorneys who maintain blogs or websites. The proposed rules, according to Greg Beck from the Consumer Law & Policy Blog, burdened completely truthful and non-misleading communication by attorneys, and served no purpose other than depriving consumers of useful information about their legal rights, protecting established law firms from competition, and rendering many aspects of the Internet largely unusable for New York attorneys. Similar to the way Gibson is being restricted from using the Internet in the most efficient way for his business.

The New York restrictions were taken to the Court of Appeals and amendments were proposed addressing the new content and limitations for advertisements. Truthful advertising is a form of speech that is protected by the First Amendment. In the Supreme Court case Virginia Pharmacy Board v. Virginia Consumer Council 425 U.S. 748, 753-54 (1976), the court ruled that the state could not limit pharmacists’ right to provide information about prescription drug prices. The court went on to say, restrictions of truthful advertising gives an unfair advantage to established market participants that find customers primarily through referrals and word of mouth.

This particular case, involving Gibson, would follow the Strict Scrutiny Test, and if it makes its way to court the ruling should reflect the fact that there is no compelling government interest in having the law, as broad as it is now.








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