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Law restricting advertising of specialties held unconstitutional

A Texas law that restricts dentists from advertising as specialists unless their specialty is one of nine approved by the American Dental Association (ADA) violates constitutional protections of free speech, the judges of the U.S. Court of Appeals for the Fifth Circuit held in a June 19 decision. The ruling upheld a lower court opinion.

(American Academy of Implant Dentistry v. Parker)

The plaintiffs, a group of dentists and dental industry organizations, brought suit to stop enforcement of a Texas law that prohibits dentists from advertising as specialists in areas of practice not recognized as specialties by the American Dental Association, which limits its recognized specialties to nine areas of practice.

The dentists and other plaintiffs argued that the First Amendment’s protections of speech gave them the right to advertise, truthfully, as they pleased. While prohibiting the use of the word “specialty,” the law did allow dentists to list board certification and other accreditations.

After a district court found in favor of the dentist plaintiffs, ruling that the prohibition was unconstitutional on First Amendment free speech grounds, the board appealed, and the case went up the Fifth Circuit. In its appeal, the board argued that the word “specialist,” if used in a context of unregulated advertising, would be devoid of meaning and, thus, inherently misleading; without an agreed-upon meaning, set by the board, it claimed, the phrase indicates nothing helpful.

The court did not agree. “The term ‘specialist’ . . . is not void of intrinsic meaning,” wrote Judge Leslie Southwick in her opinion for the court. Although the board had brought in several experts whose testimony on the definition of the term differed, “all of the testimony offered by the board demonstrates that the term ‘specialist’ conveys a degree of expertise or advanced ability.”

“Although different consumers may understand that degree of expertise in different ways, that only shows the term has the potential to mislead. It does not mean the term is devoid of intrinsic meaning and, therefore, inherently misleading . . . Here, the individual plaintiffs intend to use ‘specialist’ in the same manner as dentists practicing in ADA-recognized specialties, namely, to convey useful, truthful information to the consumer.”

Although the court agreed with the board that the state had a substantial interest in protecting the public from misleading information, the court disagreed that the rule furthered that interest, a requirement for state restrictions on speech. The board provided testimony from witnesses who described complications arising from patients who visited a general practitioner, but the challenged rule, wrote Judge Southwick, would not address these problems, as it only prohibits dentists from advertising as certain specialists.

The prohibition was also more extensive than necessary. The rule “completely prohibits the plaintiffs from advertising as specialists in their fields solely because the ADA has not recognized their practice areas as specialties,” the judge noted. “The board has not justified [the rule] with argument or evidence,” and “the board has not suggested that it considered less-burdensome alternatives.” The court thus upheld the lower court’s decision declaring the law unconstitutional.

Justice James Graves, Jr., dissented from the majority’s opinion, agreeing with the board’s argument that the term “specialist” is without inherent meaning outside of the regulatory strictures of the board and that its use, without board permission, is potentially misleading. He also maintained that the board had presented enough evidence that the disputed rule advanced the state’s interest in avoiding misleading consumers that the question should go to a fact-finder.