[*404] [*405] [*406] [*407] David Allen Furlow (argued), Thompson & Knight, Stacy Lynn Kelly, MacIntyre & McCulloch, Houston, TX, for Pruett and Martin.

Bruce S. Powers, Asst. Cty. Atty. (argued), George Andrew Nachtigall, Houston, TX, for Harris Cty. Bail Bond Bd. and Harris Cty.

Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In response to the Petition for Rehearing filed by the defendants, we withdraw the prior panel opinion in its entirety and substitute the following.

Two bail bondsmen challenged a Texas statute restricting solicitation of potential customers as a denial of their First Amendment rights. The district court agreed. Concluding that all but one of the restrictions violates the bondsmen's right to commercial speech, we affirm, reverse, and remand, all in part.

I

Bail bondsmen Carl Pruett and Scott Martin filed this § 1983 action against Harris County and the Harris County Bail Bond Board,^[1] challenging on various federal and state constitutional grounds, including the First Amendment, a Texas statute governing solicitation of customers, TEX. OCC. CODE § 1704.109 (2003). That statute provides:

(a) A board by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties to protect:

(1) the public from:

(A) harassment;

(B) fraud;

(C) misrepresentation; or

(D) threats to public safety; or

(2) the safety of law enforcement officers.

(b) A bail bond surety, an agent of a corporate surety or an employee of the surety or agent may not make, cause to be made, or benefit from unsolicited contact:

(1) through any means, including in person, by telephone, by electronic methods, or in writing, to solicit bonding business related to an individual with an outstanding arrest warrant that has not been executed, unless the bail bond surety or agent for a corporate surety has an existing bail bond on the individual; or

(2) in person or by telephone to solicit bonding business:

(A) that occurs between the hours of 9 p.m. and 9 a.m.; or

(B) within 24 hours after:

[*408] (i) the execution of an arrest warrant on the individual; or

(ii) an arrest without a warrant on the individual.

(c) This section does not apply to a solicitation or unsolicited contact related to a Class C misdemeanor.

The plaintiffs challenge subsection (b), which contains two prohibitions. Subsection (b)(1) prohibits any solicitation regarding an outstanding warrant, unless the subject of the warrant is a previous customer. Subsection (b)(2) restricts the time of solicitation after arrest, prohibiting solicitation in person or by phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a person has been arrested, either with or without a warrant. The statute does not prevent attorneys, law enforcement officials, or anyone else from alerting someone that he's the subject of an open warrant. Law enforcement officials frequently send letters to petty defendants giving notice of open warrants against them, hoping they'll turn themselves in.

Bondsmen use several methods to solicit business. One particularly useful tool is the Harris County Justice Information Management System (JIMS), a computer system accessible to the public through terminals and the Internet which provides, inter alia, names and addresses of persons arrested and subjects of arrest warrants. Given the public's ease of access to JIMS, Harris County waits 48 hours after an arrest warrant is issued to post the information about the warrant on JIMS, allowing law enforcement officers to execute the warrant first.

The district court granted the bondsmen's motion for summary judgment, holding the statute unconstitutional and enjoining its enforcement. It granted in part the plaintiffs' motion for fees, awarding them $50,000 plus $25,000 in the event of appeal. Harris County appeals the judgment, including the award of fees, and plaintiffs cross-appeal the award of fees, asking for more.^[2]

II

The metaphor of political speech finding its place in the marketplace of ideas proved to be a powerful if inexact force, drawing speech in its myriad presentations under the umbrella of First Amendment protection — the force of the metaphor itself a validating testament to the power of an idea so strong as to invite confusion of metaphorical imagery with defining principle. And in 1975, with the Supreme Court's decision in Bigelow v. Virginia,^[3] speech in the marketplace of actual goods[*409] itself gained protection, albeit as "less valuable speech," termed "commercial speech." It signifies that commercial speech did not displace otherwise protected speech in gaining First Amendment protection. That a book or article is sold or a column is written for compensation does not eliminate its protection.^[4] In sum, commercial speech, with its lesser protection, is at bottom advertising. As the parties and the court below recognized, § 1704.109 is a restriction on commercial speech.

Restrictions on commercial speech are analyzed under the framework of Central Hudson.^[5] The government may ban misleading commercial speech and commercial speech related to illegal activity. "If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed."^[6] First, "[t]he State must assert a substantial interest to be achieved by restrictions on commercial speech."^[7] Second, "the restriction must directly advance the state interest involved."^[8] Third, "if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive."^[9] We review the lower court's application of this test de novo.^[10]

Before we apply Central Hudson to the two restrictions at issue, we address a fundamental dispute coloring much of the parties' arguments and the lower court's ruling. The plaintiffs argue that only evidence created before enactment of § 1704.109 and relied upon or cited by the legislature in passing it can be considered under Central Hudson. Consequently, they argue, because the legislative record behind § 1704.109 is bare, it cannot survive[*410] scrutiny. Harris County disagrees, offering testimony and affidavits introduced in the court below and arguing that Moore v. Morales^[11] relied upon testimony at trial in ascertaining the justification for a statute. The district court agreed with the plaintiffs, although it held that § 1704.109 failed scrutiny even considering Harris County's additional evidence.

Central Hudson does not require that evidence used to satisfy its strictures exist pre-enactment. Plaintiffs rely heavily on the statements in Edenfield v. Fane that a statute cannot be justified "by mere speculation or conjecture" and that "the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions."^[12] Those statements, however, only distinguish between rational basis review, under which a court can, and should if necessary, confect its own reasons to justify a statute, and Central Hudson review, under which a court can consider only the reasons proffered by the state. While with commercial speech the state need not demonstrate that its regulatory means were the least intrusive on protected speech,^[13] it must at least articulate regulatory objectives to be served. But that doesn't mean the state can proffer only reasons locatable in the legislative record. Indeed, in Moore, our most relevant case, the court's language shows that it considered post-enactment evidence in analyzing a Central Hudson claim.^[14] Even with a First Amendment doctrine calling for "intermediate scrutiny" such as regulation of sexually-oriented businesses, where the argument to disallow post-enactment evidence as justification for a statute has some logical purpose, we have specifically rejected the plaintiffs' contention that evidence of purpose must be drawn only from a contemporaneously generated legislative record. And there the threshold question is whether the legislative body is regulating protected activity or its effects.^[15] We[*411] consider the testimony and affidavits introduced by Harris County in the court below, as the district court did in the alternative.

A

We turn first to subsection (b)(1), which prevents solicitation regarding outstanding warrants unless the bondsman has a prior relationship with the party. Harris County concedes that the solicitations at issue are neither deceptive nor relate to illegal activity. Next, under the first prong of Central Hudson, Harris County asserts as substantial interests the diminishment of: 1) the flight risk for felony offenders and high-level misdemeanor offenders; 2) the risk of harm to officers, defendants, and bystanders when such defendants are arrested; 3) the risk of harm to victims, family members, or witnesses from retribution; and 4) the potential for destruction of evidence, interests alluded to in the statute itself.^[16] The district court found that these interests were substantial. We agree, although to the extent that Harris County itself notifies non-serious offenders of open warrants against them — and the evidence shows that Harris County does this regularly^[17]— the interests are not substantial at all. Deferring that concern to the third prong, where it more easily fits, and assuming the interests are substantial in the abstract, we turn to the second prong.

Under the second prong, Harris County must show that (b)(1) directly advances these interests. Witnesses for Harris County testified that executing arrest warrants is dangerous, that maintaining the "element of surprise" is important in decreasing the target's ability to flee, resist, harm people, or destroy evidence, and that bondsman solicitation has, in certain past anecdotal incidents, tipped off criminals and caused problems.^[18] Although other Harris County witnesses testified that they knew of no instances where bondsman solicitation had caused a problem, and the bondsmen's main expert witness testified similarly, we accept as true the testimony supporting the County, given the procedural posture of this case. We note, however, that the record does not indicate the date of many of the incidents described and fails to reflect, in several instances, which incidents occurred before institution of the 48-hour JIMS window. At least one anecdote, however, references[*412] an individual suspected of manufacturing methamphetamine who had received a tip that he would be arrested and opened fire on police officers when they arrived to arrest him in 1988.^[19] Presumably such a suspect would be targeted, and hopefully caught, within the 48-hour period preceding posting on JIMS. Nevertheless, we accept at this point that (b)(1) directly advances the state's interests.^[20]

However, even assuming that (b)(1) advances the stated interests, (b)(1) fails prong three of Central Hudson. While that prong does not require that the state employ the least-restrictive means to accomplish its goals,^[21] it does require a good fit between the means and the goals. Consequently, in determining whether "the means are in proportion to the interests they purport to serve,"^[22] it is relevant that other, less-restrictive and more-tailored means exist. The district court found that Harris County could advance the stated interests by the more narrow means of: 1) increasing the number of officers executing warrants, thereby arresting risky offenders before the 48-hour JIMS window expires; 2) extending the 48-hour window; and 3) screening targets for those who could be notified. The County complains that the first two alternatives are impractical and the third outside the Texas legislature's control. The first may be impractical. But the second is not, in the district court's form or in the form we address — wherein the legislature could alter § 109 to include a time limit on solicitation, with a window prior to solicitation that would give police officers time to act.^[23] And here, we note that restrictions on commercial speech without any time[*413] limitation are inherently suspect.^[24] Furthermore, some of the County's own witnesses testified that giving law enforcement 72 or 96 hours or so after arrest to serve a warrant before bondsmen could solicit would greatly serve the County's stated interest.^[25] In short, (b)(1) is not narrowly tailored because it prohibits solicitation of targets days, weeks, or even months after warrants are issued.

Furthermore, we agree with the district court that it is telling that Harris County itself, through the Sheriff's Department, notifies thousands of people every year of open warrants against them,^[26] as do other law enforcement agencies in the County^[27] — Harris County cannot give such notice itself and then claim that restricting notice by others is necessary to the safety of its officers and the public and the prevention of flight. The County urges that it notifies only people charged with "non-serious" misdemeanors, excluding people accused of assaultive crimes, crimes involving family violence, crimes against the person, or any crime of an aggravated nature. The record reveals that the Sheriff's Department does not notify people in this excluded group of assaultative crimes, or people charged with felonies, wanted for revocation of weekend service or off-work hours, wanted for sentencing, wanted for capias profine that includes jail time, or wanted in another jurisdiction.^[28] Yet through that screen still fall many Class A and Class B misdemeanor targets, who escape the Class C misdemeanor exclusion of § 109, including oft-sought targets of bondsmen solicitation like petty thieves, people who write hot checks, drivers on suspended licenses, and certain DWI offenders. Harris County urges that the statute's exclusion of only Class C misdemeanor targets is reasonable because certain Class A and Class B misdemeanors can result in jail of up to 180 or 360 days, even if they are nonviolent, rendering the suspects of such crimes liable to run. That may be true, and we do not cast the legislature's choice to exclude only Class C misdemeanors as[*414] unreasonable. However, under the narrow-tailoring test of Central Hudson we note that, as Harris County has done, (b)(1) could reasonably allow solicitation of certain Class A and B misdemeanor targets, those not liable to run. Combined with its temporal breadth, the breadth of crimes covered by (b)(1) is simply too broad. We do not hold that Harris County cannot serve its objectives by more narrowly drawn means. Rather, we hold that Harris County has not yet engaged in the narrow tailoring demanded by the First Amendment.

B

We turn next to subsection (b)(2), which prevents solicitation in-person or by phone between 9:00 p.m. and 9:00 a.m. and within 24 hours after arrest. Harris County contends first that (b)(2)(A) regulates conduct that was already unlawful under the general statute prohibiting solicitation between 9:00 p.m. and 9:00 a.m. and before noon on Sundays, TEX. BUS. & COM. CODE § 37.02(a)(2), hence under the threshold inquiry of Central Hudson, (b)(2)(B) survives as a ban on speech relating to illegal activity.^[29] This bootstrapping argument fails. The threshold inquiry asks whether the speech is misleading or the product or service spoken about is illegal, and here the speech isn't misleading and the product or service itself — bail bonding — isn't illegal. That § 37.02(a)(2) itself bans speech doesn't save (b)(2)(B). And so we turn to the Central Hudson prongs.

Harris County asserts as its substantial interest for (b)(2) the prevention of harassing solicitation, essentially what we have elsewhere called the interest of "privacy," a sufficient interest.^[30] But Harris County's argument finds difficulty when its interest is stated more narrowly as the prevention of harassment through bail solicitation and the promotion of privacy of families of persons targeted for arrest. It now differs from solicitation held to be a valid target of legislation.^[31] We defer this concern to the next prong, again assuming the interests are substantial in the abstract.

We conclude that the 24-hour window of (b)(2)(B) does not directly advance the state's interest. Harris County offers an affidavit from an employee of the Harris County District Attorney's Office, Kathleen Braddock, stating that the 24-hour period after arrest is the time during which harassing bond solicitations are the worst and that citizen complaints "declined drastically" after Harris County changed its local rules, before the enactment of § 109, to contain essentially what is now § 109. It also offers testimony from four citizens upset at solicitation calls they received. This is insufficient evidence to show that the 24-hour rule directly advances state interests. First, Harris County does not connect the reduction in citizen complaints to the 24-hour rule, as[*415] opposed to the other aspects of the amended local rules, particularly the nighttime solicitation ban that we uphold later.^[32] Indeed, Braddock's affidavit in the paragraph discussing the 24-hour ban highlights the harassing nature of calls between, especially, midnight and 5 a.m., and three of the four citizens who testified regarding the 24-hour period stated that they received the unwelcome calls between 9 p.m. and 9 a.m.^[33] We hold later that Harris County can ban such nighttime calls. Second, to whatever extent the testimony of the citizens can be read to cover daytime solicitation, we give credence to the common-sense argument that most families would like to know when their members are in jail.^[34] Third, Braddock's conclusory statement that solicitation is the worst in the 24-hour period after arrest is insufficient. Notably, the district court held that Harris County fails to explain why, with the implementation of a 24-hour rule, harassing solicitations won't simply begin on the 25th hour. Harris County now offers an explanation which it urges is implicit in Braddock's statement that most harassing solicitation occurs during the first 24 hours following arrest: most people who can afford bond will seek out a bondsman during the first 24 hours, hence bondsmen will have little incentive to call after that period. Even if true, it is no response to an attack on a restriction on speech that the restriction essentially bans all speech. The argument that most bondsmen desire to contact potential customers right away helps explain why solicitation soon after arrest might be prevalent, and therefore harassing, but it also counsels that such a restriction, which prevents speech when it is the most valuable for the speaker and the potential customer,^[35] should be viewed with some skepticism. Given the record as a whole, we cannot conclude that Harris County has shown that the 24-hour ban directly serves the interest in privacy.

All that remains is the 9:00 p.m. to 9:00 a.m. restriction. The district court struck that down with the rest of § 109(b), but its rationale for doing so is unclear, although the court seemed to rely partly on its conclusion that the general solicitation timing statute, § 37.02(a)(2), didn't apply to bail bonding. We don't decide that question,^[36] although we note that if § 37.02(a)(2) covers bail bonding, then presumably we can't strike down (b)(2)(A) without striking down § 37.02(a)(2), at least "as applied" to bail bonding. We don't face that dilemma because we conclude that (b)(2)(A) survives Central Hudson scrutiny. Prohibiting in-person and telephone solicitation at late hours directly[*416] and substantially furthers privacy and the prevention of harassing solicitation, and is narrowly tailored to furthering that goal. A nighttime prohibition is inevitably underinclusive because privacy may be lost and harassing solicitation made during the day, but surely the state's interest is more powerful at night. Indeed, we've found no successful challenges to general nighttime solicitation bans.

III

The plaintiffs also attacked § 109 below on vagueness, equal protection, and Texas law grounds. The district court never addressed these arguments after concluding that § 109 violated the First Amendment. The plaintiffs raise the vagueness and equal protection challenges again on appeal. Hence we must address the vagueness and equal protection arguments as they pertain to (b)(2)(A), the subsection of § 109 most resistant to those arguments. First, (b)(2)(A) is not unconstitutionally vague; two specific types of solicitation of a specific service are banned during a specific time.^[37] Second, the plaintiffs' equal protection argument relies entirely on the distinction in (b)(1) between bondsmen with existing client relationships and bondsmen without such relationship — a distinction irrelevant to (b)(2)(A).

Consequently, we affirm the district court's grant of summary judgment to plaintiffs, except for that part enjoining the enforcement of (b)(2)(A), which we reverse.

IV

After addressing the merits, the district court ordered the bondsmen to file a request for fees, pursuant to 42 U.S.C. § 1988. The bondsmen requested almost $200,000. The defendants argued that "special circumstances" should preclude or reduce any award,^[38] and they also attacked specific line-items submitted by the bondsmen. The court took no issue with the line-items, but it noted its concern with whether any award should issue given that "(a) Harris County is not involved in the regulation of bail bondsmen; (b) the Harris County Bail Bond Board is not a policy making body; it merely enforces the laws and policies of the state of Texas; and (c) neither Harris County nor the Bail Bond Board enforced the statute against the plaintiffs." The court then awarded what it called "nominal" fees, $50,000, with $25,000 more in the event of appeal. In its August 18, 2005 notice of appeal, Harris County appealed both the underlying merits and the award of fees, urging again that "special circumstances" exist precluding any award of fees. After later, unsuccessful attempts to modify that award, the plaintiffs cross-appealed the issue of fees, asking that we award more money or remand with instructions to award more money because the court's three findings quoted above were erroneous.

At the outset, the parties skirmish over whether the bondsmen's cross-appeal was timely.^[39] We need not address this issue[*417] because Harris County's appeal, including an appeal of fees awarded, was timely, and that appeal focused on the same question — whether and to what extent the district court could consider the fact that defendants were not the promulgator, or arguably the enforcer,^[40] of the statute at issue.

We review a district court's determination of special circumstances for abuse of discretion;^[41] although this is a highly deferential standard of review, we find here that because plaintiffs fully succeeded in the case below,^[42] the court's award of "nominal" attorneys' fees to plaintiffs based on defendants' lack of participation in policymaking or regulation of bondsmen was an erroneous interpretation of the special circumstances that the Court in Hensley^[43] indicates could render an award unjust.

We have held that given the strong policy behind § 1988 of awarding fees to prevailing plaintiffs, defendants must make an "extremely strong showing" of special circumstances to avoid paying attorneys' fees^[44] and that "the discretion to deny § 1988 fees is . . . extremely narrow."^[45] That a defendant does not promulgate a policy does not eliminate the costs the plaintiff had to bear in securing his rights, hence even defendants lacking culpability and acting in good faith should pay attorneys' fees.^[46] Defendants here failed to make an extremely strong showing of special circumstances. Even if defendants[*418] had made an extremely strong showing that rose to the level of special circumstances, this circuit has never held that such "special circumstances" can serve to reduce, and not fully eliminate, an award of fees.^[47]

The district court would have had more discretion to reduce the County's attorneys' fees in the case below if plaintiffs had partially rather than fully succeeded on their claims,^[48] as they have on appeal. Under Hensley's standard for partial success (a different standard than the "special circumstances" that occasionally allow a defendant to avoid attorneys' fees altogether), a court may award reduced fees to plaintiffs that are prevailing parties but have lost on some claims.^[49] The court may use its "equitable discretion" to "arrive at a reasonable fee award, either by attempting to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff."^[50] Plaintiffs did not have "partial success" in the district court, however; they won their case yet they received nominal fees.

Because the court erred in applying the special circumstances test in the case below, and because Harris County has now prevailed on one issue, we must vacate and remand the award of fees to allow the district court to award fees appropriate to plaintiffs' now partial success in both the district court as well as on appeal.^[51]

We AFFIRM IN PART and REVERSE IN PART the district court's decision on the merits. We VACATE AND REMAND the district court's award of fees for further consideration.

The plaintiffs also suggest that strict scrutiny should apply because the restrictions here are content-based. This argument has no merit — § 1704.109 is a classic restriction on a category of commercial speech, a restriction that involves methods, times, and subjects of solicitation and does not have as a goal the suppression of speech. See, e.g., Speaks, 445 F.3d at 400 (examining similar restriction on chiropractor solicitation as a restriction on commercial speech).