Summary
In Adoption Hotline, the court concluded that a permanent injunction against all advertising by an unlicensed adoption placement referral service was too broad and, therefore, was an impermissible violation of the first amendment. Without a showing by the state that a narrower restriction would be insufficient to protect the government's interest or that the advertisement was misleading, a complete prohibition was unconstitutional.
Summary of this case from Attorney General Opinion NoOpinion
No. 80-1859.
August 18, 1981. Rehearing Denied September 28, 1981.
Appeal from the Circuit Court, Dade County, John V. Ferguson, J.
Alan S. Kessler, Miami Beach, for appellant.
Morton Laitner, Miami, for appellee.
Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
Adoption Hot Line, Inc. appeals from an order of permanent injunction after the trial court determined that Adoption Hot Line was acting in the capacity of an intermediary as defined by Section 63.032(8), Florida Statutes (1979) and was an unlicensed child placing agency in violation of Chapter 63, Florida Statutes (1979). The injunction provides:
The essential facts of this case are set out in Adoption Hot Line, Inc. v. State, Department of Health and Rehabilitative Services, 385 So.2d 682 (Fla. 3d DCA 1980) where we upheld a temporary injunction issued against appellants.
That Adoption Hot Line, Inc. is permanently enjoined from, in any manner of advertising for parents for unborn children, for purposes of adoption or in any manner advertising or soliciting the offering of adoptive services until further Order of this Court.
We reverse on the grounds that this injunction is more extensive than is necessary to protect against any unlawful activity under Chapter 63, supra. We do not read Chapter 63 as prohibiting all unlicensed parties from referring children to licensed or authorized parties to place for adoption. Under the present injunction, however, Adoption Hot Line is permanently enjoined from any form of advertising any referral service, even services consistent with Chapter 63, supra. In an absence of a showing that a more limited injunction would be ineffective to preserve the governmental interest expressed in Chapter 63, and to prevent misleading advertising, we find the complete suppression of Adoption Hot Line's advertising an impermissible violation of the First Amendment to the United States Constitution and Article I, Section 4 of the Florida Constitution (1968). See, e.g., Central Hudson Gas Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). See also Metro-media, Inc. v. City of San Diego, ___ U.S. ___, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (San Diego sign ordinance too broad); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (commercial speech may be limited as to time, place, and manner); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices is commercial speech protected by First Amendment). See also Aerosonic Corp. v. Trodyne Corp., 402 F.2d 223 (5th Cir. 1968) (under Florida law an injunction should never be broader than is necessary to secure the injured party without justice to the adversary); Pollgreen v. Morris, 496 F. Supp. 1042 (S.D.Fla. 1980); Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979) (injunction overbroad). Cf. The Florida Bar v. Kaiser, 397 So.2d 1132 (Fla. 1981) (attorney enjoined from any form of advertising by newspaper, television, or otherwise that would tend to mislead the public into believing he was a member of the Florida Bar authorized to practice law in this state).
The order appealed from is, in fact, much broader than the statement of the trial judge at the close of proceedings below:
. . . [T]his Court enters its permanent injunction against Adoption Hot Line from any manner, any operation dealing with the placement of children or attempting to place children or running any ads or, in any manner, counseling expectant mothers or mothers with children or parents with children and attempting to find suitable homes for them or to send them to attorneys of prospective adoptive parents, in any manner that would involve the operation that is usually and ordinarily limited to licensed child placing agencies, responsible attorneys and responsible physicians. (emphasis added)
We note, however, that unless the words "usually and ordinarily" were changed to "legally," this statement would also be too extensive.
Reversed for proceedings consistent with this opinion.
I believe that the Legislature intended by enactment of Chapter 63, Florida Statutes (1979), to bring to an end the profiting by unlicensed entities in the transfer or arranging for transfer of children, whether born or unborn, from the natural parents to other persons. Protection of the well-being of persons to be adopted, as well as protection of natural and adoptive parents, is a legitimate State interest to which any First Amendment privilege of commercial speech should yield. By permitting advertising such as is done here, the unlicensed business may establish contact between natural parents and couples or individuals seeking to adopt, arrange for the transfer of custody to take place beyond the jurisdiction of this State, and thus defeat the purpose of the Statute.
I would affirm.