Strengthening Constitutional Self-Government

No Left Turns

In Defense of Commercial Speech

Reader James Coleman writes in with criticism of my blog on the Supreme Court’s decision not to hear the commercial speech case earlier this week. I reprint his comments in whole here:

Mr. Alt, in defense of his firm’s client, never expresses an iota of concern for whether the speech of the dentist is truthfull [sic] or misleading. In fact he infers without providing any support that the dentist’s attempted advertisement was "truthful commercial speech." Presumably, this means that, if something is commercial speech, it is per se "truthful" no matter how dishonest or misleading the statement may be. What a strange world indeed when any dishonest statement is to be considered per se truthful if only it is made in a setting where someone will make a buck from it.

First, let me be clear that I was not and am not speaking on behalf of any firm or client, but only on an area of First Amendment interest. While I admittedly did not develop the full case for why the speech was truthful and nonmisleading, this is a function of the ordinary space limitations of blogging (which I abuse enough as it is). If we are ticking off criticisms, it could also have been noted that I did not offer a discourse on the development 1st Amendment commercial speech law--much to the solace of the eye-weary readers of this blog. I did offer some support for the truthfulness of the ads: I stated that there was ample emperical evidence that the certifying agency was legitimate, and that the dentist was certified by the agency. Indeed, as the AP noted, the dentist had received the highest level of certification offered by the organization, attending over 400 hours of class and passing multiple exams. And the certifying organization was previously found to be a "bona fide organization." Thus, any ad by the dentist expressing a specialty in this area or certification by this agency were truthful, a point not disputed by the state.

The best argument offered for the disclaimer was that it was necessary to assure that people didn’t mistakenly believe that the agency was recognized by the state, or a part of the ADA. It is not that the speech was misleading as written, but simply that people may make incorrect inferences. This seems like a bit of a stretch, because it infers that any reference to an accrediting agency is inherently misleading because people will infer state impramatur by the action of private agencies. Even assuming for the sake of argument that this is true, the means selected to alleviate this misunderstanding were excessive. I abbreviated the disclaimer in my previous blog, which was required to be printed in capitalized letters (or similarly distinguishable font) as follows:

[THE AMERICAN ACADEMY OF IMPLANT DENTISTRY] IS NOT RECOGNIZED AS A BONA FIDE SPECIALTY ACCREDITING ORGANIZATION BY THE AMERICAN DENTAL ASSOCIATION OR THE FLORIDA BOARD OF DENTISTRY.

While the disclaimer could have been written to convey the idea without making impossible any advertisement, this method assures that no one will advertise.Furthermore, the disclaimer is more likely misleading than the advertisement, because the Florida Board of Dentistry has recognized the AAID as a bona fide organization.

As for Mr. Coleman’s statement that "[p]resumably, this means that, if something is commercial speech, it is per se ’truthful’ no matter how dishonest or misleading the statement may be," there simply is no support for that in anything I wrote.

There are commercial regulations which are designed to prevent fraud on the public, and there are regulations that are intended to effectively ban advertising. The latter are clearly disfavored by the First Amendment, and this regulation was clearly among the latter.

Discussions - 1 Comment

Alt does a fine job of explaining himself, but I think it is telling that the gentle reader does not dispute an important point that Alt made in his original blog on the case, namely, that the law appears to be a special interest deal that serves the narrow interests of the ADA more than the common interests of consumers of dental services. Evidence of this is found in the disclaimer itself, which require the advertiser to say that The Amercian Academy of Implant Dentristry is "NOT RECOGNIZED AS A BONA FIDE ... ORGANIZATION". I don’t have a study to back this up, but I imagine that most consumers are very reluctant to do business with someone who associates with an organization that is labeled as "NOT ... BONA FIDE". Would the disclaimer be any less informative if it omitted the words "bona fide"? I think not. The phrase "bona fide" seems both superfluous and ominous in the disclaimer -- something that is included to frighten cosumners rather than inform them. But that’s just my opinion.... I’m imagine Mr. Coleman takes great comfort from the phrase.

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