A divided Fifth Circuit has affirmed a lower court ruling that an advertising restriction promulgated by the Texas State Board of Dental Examiners violates the First Amendment rights of the plaintiff dentists.
The Texas regulation prohibited dentists from advertising as specialists except in the nine areas recognized by the American Dental Association as specialties. For example, a dentist could advertise as a pediatrics specialist because that’s one of the nine, but not as an implant specialist because that’s not one of the nine.
Five dentists and four national dental specialty organizations sued the Board and related entities on the theories that the regulation violated their First Amendment right of free speech and their Fourteenth Amendment right of due process. The district court gave the plaintiffs summary judgment on the first theory and enjoined enforcement of the restriction, but gave the defendants summary judgment on the second theory. The defendants appealed to the Fifth Circuit.
That court ruled that the speech at issue—the advertising—was not inherently misleading, only potentially misleading. A state can’t restrict such speech unless the restriction directly and materially advances a substantial state interest, and even then only to the extent necessary to serve that interest.
The court acknowledged that the Board had shown the state’s substantial interest in assuring accuracy in the advertising, but held that the Board had failed—and failed badly–to establish the remaining two requirements: that the restriction directly advances that interest and is no more extensive than necessary.
The lone dissenter insisted that the advertising was inherently, rather than only potentially, misleading.
The case is Amer. Acad. of Implant Dentistry v. Parker, No. 16-50157 (5th Cir., June 19, 2017).
