indicated like to reserve three minutes for a bottle the plaintiffs in this case consists of a number of ohio health care practitioners as well as a marketing company they utilized were here on a let me just say st as there's a matter to catch the court up in the state court proceedings we did secure an injunction against the enforcement of the anti solicitation statute but that the merits of that case are far from over  constitutions one subject clause so nothing that will have any legal relevance to the person i'm an equal protection challenges in this case we have two different interpretations of this statute and i think we all agree that at a minimum perhaps it's health care pretty practitioners from contacting her communicating with victims of accidents or crimes within the st thirty days of the incident  except through the u s mail system we maintain that when the statute is read literally it actually prohibits all forms of communications within the st thirty days except for the u s mail that prohibit prohibition again to the u s mail continues indefinitely there after and because the term communication has not been defined in the statute it would logically apply to all sorts of advertising including public advertising television apply it and also look at the health care practitioners i mean when they read this law i think got to read it the way i am and then the rights that they will not exercise their rights out of fear that they're going to lose their licenses because they read this as a flat prohibition and limitation to the u s mail indefinitely so yeah i have to take the worst case scenario and it's it's the reason a worst case scenario and it's really what this court said in so vermont if i mean the court in summer meant said you know we're going to apply this as it reads we're not going to really rework it to get it to a version that the state likes that you know will pass constitutional muster in this case because it's going to come up again and again for years and years unless this court in our seats getting to that the to the st of a challenge i think it's very important to set the standard to be applied in this case and to be clear we maintain that whether under a heightened standard or an intermediate standard  of the statute is to restrict communications for solicitation of medical employment they can talk about anything else they can talk about that and then thirdly and importantly it's also speaker based in this statue is targeted directly to health care practitioners and marketing companies that you everyone else is free to continue with them the ethical restrictions on their professions which for insurance represent ensign on a body shop represented support that's no restriction at all so it's content based and speaker based so how do you distinguish this case from the florida bar case that the supreme court decided well the fart bar case i mean we're on board with it i mean the the state has a heavy burden and in that case you know was dealing with attorneys they had a very lengthy report in front of the legislature they had affidavits d they had newspaper articles they had a really robust legislative record  and in the court sat that that survived constitutional muster you know on it and remember you know why there's just a there's not enough record here where there was in florida but there is not in ohio from expert for this this is a similar any communication to obtain professional employment shall be sent via united states postal service i mean the chiropractic board in its own regulations defines communications mean advertised so this goes far beyond just contact  you know if somebody out a medal practitioner has a billboard up at an accident victim sees it within thirty days that's a violation but i think the more important thing about florida bar is just how healthy the record w general assembly but there's reference in the record to hearings about solicitation of accident and crabbed gyms and the hearing of testimony from buzz proponents and opponents so you tell me that just didn't happen or you mean with the words and saying well it didn't happen in the section in which the legislation was enact it that's exactly what i'm saying and i don't think that's playing with the words i think that's historically accurate we have introduction its passage because it was stuck in the buy in by in your budget bill that the legislators had to pass you know it's a trick they do when they just want to slip something through without any debate on so i am not playing word games and i'm sure bill was going to do was allow or was to require the officers investigating accidents to indicate on the report whether any of the people in the in the involved wanted to be contacted for solicitation and it didn't limit anybody's free speech rights all it said was if they indicate no then that information cannot be used to contact them you can stay out of it but i just have one other question about this florida bar sessions and use that record this record here it's more helpful to us than it is for that now we didn't know it was going to be in this case until the magistrate and it came out in sight into the internet where he apparently downloaded on his own without giving us any chance to respond we read through it afterwards and it's far more against the measure than four and it doesn't by any means single out health care practitioners there's quite a bit in the but there's a quite a bit in there about insurance representatives pressuring these people auto body shop sales representatives pressuring these people after accidents even to greystone salesman pressuring people it's a whole smorgasbord of a contact being made following these accidents maybe a bit of which is from medical practitioners and they plainly been singled out here if you look at it i mean that record you have it best handful of people complaining in a state of eleven million people who have it best to handle him full of people complaining any one of them could have stopped it just by signing up with the do not call registry you know there's nothing in there that justifies this legislation where we prohibit contact with everyone which is plainly overwrought i mean if people aren't signing up for the do not call registry the presumption is they don't mind being contact and there's a lot of people who receive these calls follow up on these calls and get the treatment which is exactly why this was passed because it's effective form communication there are three reasons why you know a record was required here are real exploration of whether this is really a problem and a high i mean the st is that as i just said we have the do not call registry in those prior decisions japanese bianco and solar men do not call registry was in its infancy nd of all we have the public records act that's effect in october it's really doubtful that we still need this kind of measure if that's in force and in a state court injunction did not cover that and thirdly in ohio both d the house state medical board and  have strict regulations against deceptive and misleading advertising so with that we would ask you to reverse the at the district burst their reading of the statute is inconsistent with its plain text and at the minimum inconsistent with the canon of constitutional poisons that would compel the court to adopt a reading that even they in their briefs acknowledge is constitutionally friendly in their own words second their argument for heightened scrutiny is based on a misreading of sorel several made no changes to central hudson and finally their discussion of the evidentiary record is both inconsistent with precedent in florida bar and inconsistent with the reality of what actually happened here and like to begin with the plain language of the statute as one must both because  you always need to be in the language of the statute but also i think in response to judge bush's one question you saw how much of their argument really rides on this misinterpretation of the statute judge would she would asked how does this compare to florida bar in response to my part on the other side had said well this is more stringent but it's only more stringent if you adopt their reading of the statute that ignores what the stack section actually says and here ohio statute it must read the statute as the ohio supreme court would and they all have or has explicitly condemned efforts to read one sentence in isolation and what you have here is you have a two sentences the st sentence here is what you may not you you may not const contact accident victims for thirty days if you use any of these me it's and then the nd sentences in those thirty days here's what you may do you may use the us mail and that gives effect both sentences now and sure there's a bit of redundancy but there's still some clarity work done by each sentence and the court's recent circuit decision atlantica richfield acknowledged that sometimes the better reading of a statute contains some redundancy there is no problem with the belt and suspenders approach now if you look at their reading of the statute the the their sentence if they focus only on the nd sentence then the person does absolutely no work it doesn't bring clarity it doesn't do anything and so it is their reading that renders the statutes a purpose and so we begin by then saying that their their reading of the statute is simply incorrect but even beyond that opinion it engages in aim very traditional central hudson analysis and before it begins that analysis it st acknowledges that content based restrictions are sometimes permissible and that principle applies to commercial speech if i use it unnecessary to determine whether the statute issuance around includes both commercial and noncommercial speech because it finds that ultimately if you apply a traditional commercial speech analysis it would fail under central hudsons for one million or three or four prongs depending on how you count them and confirming that the sorell did not work any significant change to central hudson i point the court to its own recent decision investment which sit on the wrong side of that unfortunately our statute was struck down but the court applied a traditional central hudson analysis and it found that suggest prior restraint doesn't even come into play when you're talking about commercial speech going to traditional commercial speech analysis because finally with respect to be evidentiary record we think that the  argument is both incorrect as a matter of law and it is incorrect as a factual matter judge gibbons you noted the florida bar said that you don't need a weighty significant and the point i think that the arguments the challenge based on the evidentially record is wrong as a matter of law and as a factual matter as a matter of law judge givens you had asked about florida bar and you're absolutely correct florida bar says that you don't need a weighty evidentiary record that anecdotal evidence from other jurisdictions is sufficient even in the realm of strict scrutiny that is a higher level of scrutiny than applies here commonsense would be  and so given this court's decisions in capital bianco and its unpublished order from two thousand and sixteen incur actors united we think that there's ample anecdotal evidence to support the this restriction based on the experiences of tennessee and kentucky and one thing i would note about cap of bianco is kept bianco pointed back to the decision in silberman and with respect to the nd and  prongs or the rd and th prongs of central hugs and depending on how you count them that is the state's interest and whether the restriction advances that injures the court have bianco noted it was not writing on a clean slate and it pointed to silberman  unpublished decision and so to the extent that the court in kappa beyond go felt that it was not writing on a clean slate even more so the court here with kapil bianco has published decision is also not running right on a clean slate and so we think that that alone is sufficient to uphold the identical restrictions large identical restrictions that are at issue here versus capital bianco but even so i think that the evidence that was before the general assembly at a minimum to taken together with kappa bianco and chambers and silver mint in florida bar is more than sufficient to satisfy the central hudson and for a lot of our standards and  and so this was not something that was new it was part of our answer and the testimony before the legislature was it was ample to show that solicitation of accident victims in the days following is problematic there is even testimony from a representative of st choice who had knowledge that there were sometimes problematic solicitations on behalf of chiropractors and argued simply that further legislation wasn't the best way to deal with now that's a question for the general assembly and under the final prong the well tailored wrong central hudson don't have to have the perfect fit it's not a least restrictive means test and just has to have a test in scope in proportion to the interest served and certainly the general assembly was well within its rights to take account of this court's decisions upholding similar solicitation restrictions when crafting its own restriction did not need to take advantage of some of these alternative opportunities and i would say that one of the opportunities that i would suggest and one of the other ways do it this is the do not call list that you know call us is much broader it is less well tailored because here this is a restriction that only applies in the thirty days following an accident and it only applies to certain types of calls do not call registry would no one could ever call you and you know maybe someone wishes to be called about new siding more house painting or other things and they shouldn't have to give up that just to avoid being troubled at a time that the u s supreme court recognizing for a bar in this court has recognized people are especially sensitive in the days and months following an accident and finally touching on the equal protection component as court has already said in chambers and kapil bianco that a law that survives central hudson that survives intermediate scrutiny is more than adequate to satisfy the requirements of the equal protection clause but even putting that binding precedent aside here the only entities to which the chiropractors compare themselves are not insurance companies also are not similarly situated the statute here is a probation on soliciting with direct contact i'm sorry with an intent to obtain professional employment now an insurance company is not usually going to be going out trying to get new business and in many cases you're going to want to hear from your insurance company they're going to tell you here's how to get your car fixed here's how we're going to reimburse your medical bills and so be it your insurance company or a  party that who is also involved the accidents insurance company there are reasons why the general assembly would have wished to tailor this specifically to health care practitioners but even if that were not the case nothing the court has said there is no requirement that a legislature address a problem all at once and one final point about the evidence i'm going back to judge givens you asked will this matter if it was before this general assembly that general assembly not all states even have legislative history the state of indiana for example doesn't have legislative history and so the test cannot rest under florida bar on what specifically a legislature may have considered if you look again to the unpublished order in chiropractors united for example chiropractors united then there they talk about evidence it was before the district court and so to the extent that there's a question about evidence the question should be what evidence was solicitations based on attorney vs not attorney status but kapil bianco resolves that point kapil bianco the court found no basis to distinguish between attorney solicitation in others and so for these reasons and for sixteen years ago it was years before the surround decision of the us supreme court justice kennedy's opinion i certainly agree with my colleague that sorrel did not do away with the central hudson test and in fact we discussed the central  test that life are brief and what i do disagree with is the suggestion that it didn't change anything because for else says very clearly when you have content based and speaker based restrictions on commercial speech we have heightened  scrutiny they're not seriously disputing that this is content based and speaker based that's exactly what this legislation is directed towards and there's now four circuits in this country that have adopted this very standard that is content based on speaker base  those courts all filed this and i have yet to hear them argue that they can satisfy the heightened scrutiny test all they've been trying to do is satisfy intermediate scrutiny with a record from a prior legislative session  just one more point about capobianco in that tennessee case all the regulation prohibited was telemarketing in telephone chiropractors medical practitioners could walk right up to the accident victim at the accident speak directly to them they could send fed ex deliveries it was much narrower than we have in this case and kept the bianca's out of tennessee and again you just can't say what's good for tennessee is good for ohio sixteen years later as i  we now have the public records act that was asked last year the do not call registry is in full force and effect we have regulatory prohibitions in ohio that i assume are being vigorously enforced to prohibit misleading and  communications and i agree it like like one of our clients did during the legislative session there are problems from time to time but we believe legislation is not the solution because we've got all these other remedies legislation is now over broad it doesn't direct it doesn't meet the ends and they have no record to support that they have a smattering of nd hand complaints some of which involve medical practitioners in a state of eleven million people florida bar that do care about it very deeply just let me point out that because we have st amendment concerns we also have heightened scrutiny under equal protection for the same reasons so it that we would ask you again to reverse the district court