Barratry involves stirring up or exciting litigation, some of which may be frivolous. At common law, a cause of action could not lie without three such instances. See, e.g. 9 FL Jur. 2d 4 (1997); 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) 1131, p. 1310. Statutes, however, may make individual acts of solicitation an offense of barratry. See Tex. Penal Code Ann. art. 290 (1901) (repealed 1917); 9 FL Jur. 2d 4; see also Susan Lorde Martin, Syndicated Lawsuits: Illegal Champerty or New Business Opportunity?, 30 Am. Bus. L.J. 485, 488-89 (1992).

The offense of barratry has an ancient lineage. In some form, the doctrine of barratry existed in Greek and Roman times, as well as in the Middle Ages in England. See Martin, supra at 487. Moreover, the legal profession's resistance to solicitation derives from the Magna Carta-era traditions of the English system of legal education. Beginning in the thirteenthcentury, the Inns of Court trained wealthy young men, who, needing no income, "viewed law practice as a public service instead of a trade." Katherine A. Laroe, Comment, Much Ado About Barratry: State Regulation of Attorneys' Targeted Direct-Mail Solicitation, 25 St. Mary's L.J. 1513, 1519-20 (1994). This view even gave rise to an eighteenth century law forbidding barristers from accepting fees, id. at 1520, much less soliciting them.

The State of Texas also has a long history with laws against barratry: it enacted its first criminal barratry statute in 1876. Id. at 1524. The barratry law has undergone periodic updates, of which H.B. 1327 is the latest. And in the years following 1876, the United States Supreme Court explicitly acknowledged that the first amendment protects commercial speech. Since solicitation of business by chiropractors (even barratrous solicitations) is commercial speech, this court must measure the prohibition imposed by H.B. 1327 against the proscriptions of the first amendment.

Courts scrutinize commercial speech under the intermediate standard set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980). This standard grants states free rein to regulate false, deceptive or misleading speech. See id. at 563-64. If the state wishes to regulate truthful and non-deceptive speech that merely proposes a commercial transaction, however, the state bears the burden of proving the following: (1) the state has a substantial interest, (2) the regulation directly and materially advances, and (3) the regulation is "narrowly drawn." See id. at 564-65.

The State has asserted three interests in this case: (1) forbidding solicitation where the sellers are likely to engage in, and the prospective buyers are vulnerable to, undue influence, intimidation, overreaching, or other vexatious conduct; (2) protecting the privacy and tranquility of injured people; and (3) upholding the reputations and public images of the professionals licensed by the state. We accept this showing as one that satisfies the Central Hudson standard, since the Supreme Court has recognized each of these interests as being substantial. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624-25 (1995) (maintaining ethical standards in state-licensed professions, privacy); Edenfield v. Fane, 507 U.S. 761, 770 (1993) (preventing fraud, maintaining ethical standards, privacy); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978) (maintaining ethical standards, preventing vexatious conduct).

Despite its strong interests, however, the State has not satisfied its burden of showing that H.B. 1327 materially and directly advances them. The Supreme Court has established that "mere speculation or conjecture" will not satisfy the burden; "rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, 507 U.S. at 770-71. This standard is by no means insurmountable: the Supreme Court permits states to justify speech regulations by "reference to studies and anecdotes pertaining to different locales altogether, or even . . . based solely on history, consensus, and 'simple common sense.'" Went For It, 515 U.S. at 628 (citations omitted). And yet, in Edenfield, the Supreme Court held that the state of Florida had not carried its burden when "[i]t present[ed] no studies[,] . . .[t]he record [did] not disclose any anecdotal evidence[,] . . . [and t]he only suggestion that a ban on solicitation might help prevent fraud and overreaching . . . [was an] affidavit . . . which contain[ed] nothing more than a series of conclusorystatements[.]" 507 U.S. 771.

Here, the State concedes that it relies on "common sense," not data or empirical evidence, to demonstrate that H.B. 1327 directly and materially advances its interests. The only other way it attempts to carry its burden is by citation in its brief, as authority for its position, to the statements of two House members made during the 19 March 1997 public hearing about the bill. But these statements (which constitute two conclusory opinions and one anecdote) are not even part of the record, nor have they been introduced into evidence. Therefore, the success of the State's effort to carry its burden on this prong depends on the plausibility of the State's insistence that in-person and telephonic solicitation of injured or ill people by chiropractors is "inherently conducive to overreaching and other forms of misconduct." Ohralik, 436 U.S. at 464. While speaking to seniors at senior citizen centers and contacting employers about injured workers5 are activities that do not seem inherently conducive to over reaching, nor likely to result in provoking public ire toward chiropractors, "accident" telemarketing and dispensing advice at accident scenes clearly are undertakings imbued with potential for abuse. On balance, however, such a broad ban lacking a time limit does not directly and materially advance the State's admittedly important interests because it sweeps too many extraneous activities within its purview.

Similarly, the State has not met its burden to show narrow tailoring. On this third prong, all the Supreme Court requires is "'a "fit" between the legislature's ends and the means chosen 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'[.]" Went For It, 515 U.S. at 632 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). "[T]he 'least restrictive means' test has no role in the commercial speech context." Id.

The State's argument is merely a bald assertion that H.B. 1327 is a prophylactic rule and reasonably proportional to the substantial state interests it serves. Yet two instances belie the State's claim. First, the plain language of H.B. 1327 proscribes such activities as speaking to seniors at a senior citizen center about the benefits of chiropractic treatment. Perhaps realizing that such breadth was constitutionally unacceptable, the state conceded to the district court that such conduct is not offensive, and the district court held that the statute does not apply to that activity. Essentially, the district court "cherry picked" its way through the statute: it judicially created an exception--unbidden by the language of the statute--to skirt the constitutional infirmity.6 This plainly indicates that the statute is not reasonably tailored.

Second, the part of H.B. 1327 that amends Texas Penal Code 38.12(a)(3) is overly broad as it makes no reference to solicitation when it criminalizes otherwise innocent marketing techniques. That section says: "A person commits an offense if, with intent to obtain an economic benefit the person . . . (3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client."

The State intimates that the breadth of this subpart should not be troubling because this section does not regulate speech and therefore would not implicate the first amendment. We reject the State's contention. In the Fifth Circuit, when deciding whether particular conduct or actions constitute speech, "we ask whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it." Cabrol v. Town of Youngsville, 106 F.3d 101, 109 (5th Cir. 1997) (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)); see also Jones v. Collins, 132 F.3d 1048, 1054-55 (5th Cir. 1998). Here, offering to give money or anything of value to obtain employment in a professional capacity constitutes commercial speech. Chiropractors engage in such conduct with an intent to convey a particularized message: hire me, try my service. Moreover, those who receive the money or anything of value are likely to understand the message because rebates, free samples and risk-free trials of products are common marketing tools. Therefore, we find that 38.12(a)(3) regulates speech, and we now consider its scope and legitimacy.

In so doing, we conclude that this section is neither reasonably tailored nor reasonably proportional to the harm the State seeks to prevent. It is not limited to in-person or telephonic solicitation of an injured or ill person; rather, this section facially applies to any advertising, including advertising via public media, that offers money or anything of value (e.g., a free adjustment) to induce a client to try chiropractic services. The section is not bounded by a time limit (such as Went For It's 30 day moratorium) or target group (for instance, Went For It's recent victims of accidents). And the section criminalizes commercial speech that is both unobjectionable and unquestionably protected by the first amendment (e.g., a print advertisement offering a free adjustment to anyone interested). This is not the first time the State, in its zeal to prohibit "accident" telemarketing by chiropractors, has cast its nets too broadly. See Innovative Database Systems v. Morales, 990 F.2d 217, 220-222 (5th Cir. 1993) ("A total ban on the use of lawfully obtained, public information to contact any person who was recently involved in a motor vehicle accident . . . is too broad a prohibition to prevent the perceived evil.").

Given the poor fit between means and ends, H.B 1327 is unconstitutional as applied to chiropractors. We need not here determine the purview and legitimacy of the statute as it applies to other covered professionals. As the Court noted in Edenfield, "the constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitation." 507 U.S at 557.

If a statute is so vague that it does not afford defendants fair notice of the proscribed conduct, then the statute offends the due process clause of the fourteenth amendment. See Stromberg v. California, 283 U.S. 359, 369 (1931) ("A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity[for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment."); see also United States v. Lanier, 520 U.S. 259, 265 (1997); United States v. Harriss, 347 U.S. 612, 617 (1954).

Bailey argues that H.B. 1327 is void for vagueness because "it cannot mean what it says" and because law enforcement officials and the judiciary will read exceptions into the law. That the law cannot mean what it says does not make it vague; here, for instance, what H.B. 1327 forbids is clear, but also confounding in its scope. Similarly, the fact that the law may be susceptible to differing constructions by the judiciary and law enforcement officers does not create a vagueness problem where, as here, the text of the law is plain, though its breadth is unusual. The vagueness doctrine is not a suitable vehicle for finding this statute unconstitutional.

Since H.B. 1327 neither advances the state's interests materially and directly nor is it narrowly tailored, we REVERSE the district court's ruling and declare that the act is unconstitutional as applied to chiropractors.

REVERSED.