More Unconstitutional Fun with the 90th General Assembly

On Monday, Sen. Bart Hester (R-Cave Springs) ran another in his long string of terrible bills.  This one, which squeaked through the Senate with 19 votes, was SB912 – “To Prohibit Advertisement of the Results of a Survey, Inspection, or Investigation of a Long-Term Care Facility.”  Under this bill, it would be illegal for anyone to use:

the results of a survey, inspection, or investigation of a long-term care facility conducted by any state or federal department or agency, including any statement of deficiencies, all findings and deficiencies cited in a statement of deficiencies, all proposed and implemented plans of correction, and all statements of interviews with individuals in connection with any inspection or investigation

in an advertisement, unless that advertisement contained specific disclaimers and explanations, as laid out in the bill.

Generally speaking, these survey results are public records, subject to disclosure under the Arkansas Freedom of Information Act.  Why would Sen. Hester want to prohibit someone from using a public record in an ad?  Actually…wait.  Don’t answer that.

Instead, let’s flip that question around a bit: what kind of survey/investigation results do you think would be interesting enough that someone might want to use those results in an advertisement?  It’s probably not going to be the results that show a home was a-ok and totally above board, right?  It would probably be something more like this:

[gview file=”http://www.bluehogreport.com/wp-content/uploads/Stagecoach-Nursing-Rehab-Benton-AR.pdf”]

Under Hester’s bill, however, someone could not use that public record in an advertisement without also including:

(1) The date the survey, inspection, or investigation was conducted;

(2) A statement that a facility is required to submit a plan of correction in response to a statement of deficiencies, if applicable;

(3) If a finding or deficiency cited in the statement of deficiencies has been corrected, a statement that the finding or deficiency has been corrected and the date that the finding or deficiency was corrected[foot]Worth noting, if only for the irony: Subsequent remedial measures are inadmissible to show liability in court, yet Bart Hester wants to make advertisers explicitly reference subsequent remedial measures outside of court.[/foot]; and

(4) A statement that the advertisement is not authorized or endorsed by the Office of Long-Term Care of the Division of Medical Services of the Department of Human Services, or any other government agency.

That’s…an interesting approach, and it’s almost certainly unconstitutional.

For many years, the U.S. Supreme Court took the stance that commercial speech was not subject to First Amendment protections.  They abandoned this approach in the late 1970s and, through subsequent decisions, formulated a test for when the state may regulate commercial speech without running afoul of the First Amendment.  Under that test, the government may regulate advertising where (1) the advertisement concerns an illegal activity; (2) the advertisement itself is misleading; or (3) the government’s interest in restricting the specific advertising is substantial, the regulation in question directly advances the government’s interest, and the regulation is narrowly tailored to serve the government’s interest.

The first prong — advertising that concerns an illegal activity — refers to the product or service that the advertisement is selling, not the fact that the nursing home investigations may show illegal activities within the home (think someone running an ad for marijuana sales). So Hester’s bill can’t survive under that prong.

The second part — where the advertisement itself is misleading — is similarly of no help to Hester.  There is nothing here to suggest that including part of a public record is, in an of itself, misleading at all.

The third prong, then, is the only one where this bill might find safe harbor, but even that appears impossible.  What “substantial interest” could the State of Arkansas have in regulating the use of a public record in an advertisement?  If it is merely to make sure that people know that the ad is not authorized or endorsed by the state, maybe that qualifies, but the bill still fails as being too broad by a long shot.  If you simply want to make sure that people realize the ad is not endorsed by the state, then parts 1-3 of the required disclaimers make no sense.

Besides which, because this bill only applies to public records related to investigations of long-term care facilities, an argument that this is about preventing people from thinking the government endorses an ad is pretty disingenuous.  An advertiser could still use reports on evaluations of schools, investigations of food-safety violations at restaurants, etc.  This bill addresses none of those situations; it exists solely so the kind of person who would run an ad with a nursing home report in it (e.g., lawyers) must, in that same ad, basically apologize and minimize the nursing home’s failures.

The U.S. Supreme Court has explained, even in the context of commercial speech, “Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views.”  This bill does exactly that, and it does so in order to protect the same kind of person who brags:

Still, Morton said he had a $30 million umbrella insurance policy at the time that cost him $40,000 annually. But after the ruling, the majority of insurance companies that offered commercial professional liability coverage for nursing homes fled the state.

To discourage the lawsuits, Morton said, he now carries only $200,000 in liability insurance on each of his nursing homes.

On the advice of his attorneys at Hardin Jesson & Terry PLC of Fort Smith, Morton has also adopted a divided corporate structure for each of his facilities. One company operates the nursing home while a leasing company, also controlled by Morton, owns the building. In addition, Morton’s Central Arkansas Nursing Centers Inc. contracts to provide administrative services to each nursing home in which Morton is a stockholder.

He also added within the last few years mandatory arbitration clauses to the admission papers, so if a dispute does arise it will be settled outside of the courtroom.

Because, clearly, we wouldn’t want that guy painted in an unflattering light by an advertisement.