Strengthening Constitutional Self-Government

No Left Turns

The Odd Couple of Free Speech

The Supreme Court today opted not to hear a case raising an interesting commercial speech question involving what disclosure statements can be required for those who wish to advertise that they are specialists in a particular field. [In the interest of full disclosure, the petition asking the Court to hear the case was filed by my law firm, and I had some microscopic role in it.] Justice Thomas, joined by Justice Ginsburg, dissented from the court’s decision not to hear the case, and made a convincing argument as to why the court should have allowed arguments.

The case arises from Florida, where a dentist wished to advertise that he was a specialist in implant dentistry. Because this specialty is not recognized by the state dental board, state law required that any advertisement include a lengthy disclaimer stating that implant destirstry is not a recognized specialty area. The law further required that any reference to the professional association that certified him be accompanied by an even longer statement asserting that the organization is not recognized as "BONA FIDE." The sub-text to the case seems to have been a special interest deal: the organization that certifies implant dentists is a competitor of the ADA, which appears to have been the driving force behind this law. Interested parties were thus able to use the power of the state to neutralize competition by effectively preventing dentists from advertising a specialty in this area: the disclaimer was too long to allow a dentist to refer to the specialty in business cards or yellow page ads, and it was sufficiently negative as to make people think that the competing organization was little more than a diploma mill, despite emperical evidence regarding the agency’s certification requirements to the contrary.

What a strange world we live in, when truthful commercial speech and campaign speech are given less protection by courts than nude dancing.

Discussions - 1 Comment

Mr. Alt, in defense of his firm’s client, never expresses an iota of concern for whether the speech of the dentist is truthfull 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.

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