Stanley N. Parker, D.M.D. v. Commonwealth of Kentucky, Board of Dentistry

DAVID A. NELSON, Circuit Judge,

concurring in part and dissenting in part.

I agree that this court can and should reach the merits of this case, and I agree also that it is not necessarily misleading for a dentist who practices orthodontia to use that term in telling the public what he does. Notwithstanding that Dr. Parker’s advertisement had no more than minimal potential to mislead, however, it seems to me that a substantial governmental interest could reasonably be found to have been served by the regulatory scheme of which the prohibition of such advertisements is an integral part. Accordingly, I must dissent from the conclusion that Chapter 313 of the Kentucky Revised Statutes is unconstitutional insofar as it prevents the advertising of orthodontic services by those who are not licensed orthodontists.

The practice of general dentistry and of the various dental specialties is subject to close regulation by the state. If, as the Supreme Court has told us, the Commonwealth of Virginia “is free to require whatever professional standards it wishes of its pharmacists,” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 , 96 S.Ct. 1817, 1829 , 48 L.Ed.2d 346 (1976), I take it that the Commonwealth of Kentucky is free to require whatever professional standards it wishes of its dentists and orthodontists. As noted at the outset of the court’s opinion in this ease, Kentucky’s Board of Dentistry is authorized to issue “specialty licenses” in orthodontia and a number of other dental specialties. A dentist who acquires a specialty license is required to limit his or her practice to the area of licensed specialization. Ky.Rev.Stat.Ann. § 313.445(1). Kentucky law currently permits general practitioners to engage in the practice of orthodontia and other dental specialties, but I take it as given that the Kentucky legislature could, if it were disposed to do so, prohibit the practice of orthodontia by anyone not holding a specialty license as an orthodontist. We can have no assurance that the Kentucky legislature will not respond to today’s decision by doing precisely that.

Echoing a theme sounded by the United States Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, 375 , 97 S.Ct. 2691, 2704 , 53 L.Ed.2d 810 (1977) and In Re R.M.J., 455 U.S. 191, 201 , 102 S.Ct. 929, 936 , 71 L.Ed.2d 64 (1982), this court suggests that “the preferred remedy” for any potentially misleading professional advertisement “is more disclosure, rather than less.” As a citizen, I am not unsympathetic to the proposition that more disclosure is “preferred”; as a judge, however, I consider myself powerless to require the Kentucky legislature to choose a remedy I might prefer over remedies which, although contrary to my personal view of the public interest, would be invulnerable to attack on constitutional grounds. I have no idea how likely it is that Kentucky will now prohibit its Dr. Parkers from practicing orthodontia at all, but the very fact *512 that such a possibility exists casts considerable doubt, in my view, on the propriety of our action here.

Most legislative acts reflect compromises of one kind or another. It is at least conceivable that the Kentucky legislature’s decision to allow general practitioners to practice orthodontics as long as they do not advertise the fact represents a compromise between those who would have preferred no restrictions on general practitioners and those who would have preferred not to let general practitioners engage in orthodontics at all. Such a compromise might not be the most intellectually satisfying piece of legislation in the world, but it seems to me that a non-elected judiciary, unaware of the considerations that led to adoption of the compromise in the first place and ignorant of the consequences likely to follow from its abrogation, ought not to take the drastic step of invalidating the legislative solution unless there is no conceivable basis on which it can be squared with the language of the Constitution.

Although advertising is entitled to the protection of the First Amendment, even when the “product” advertised consists of professional services, the constitutional protection accorded such “commercial speech” is less extensive than that afforded speech of a kind not traditionally subject to government regulation. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56 , 98 S.Ct. 1912, 1918 , 56 L.Ed.2d 444 (1978); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562-63 , 100 S.Ct. 2343, 2349-50 , 65 L.Ed.2d 341 (1980); Zauderer v. Office of Disciplinary Council, 471 U.S. 626, 637 , 105 S.Ct. 2265, 2274 , 85 L.Ed.2d 652, 663 (1985). Permissible restrictions on commercial speech include, but are not limited to, “time, place and manner” regulations, prohibitions against advertising that is false or deceptive, and strictures against advertising that proposes an illegal transaction. Virginia Pharmacy, 425 U.S. at 770-71 , 96 S.Ct. at 1829-30 ; Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 (1973). This list of permissible restrictions is illustrative, not exclusive. Virginia Pharmacy, 425 U.S. at 770 , 96 S.Ct. at 1829 . It is true that the Supreme Court, in In re R.M.J., 96 S.Ct. at 1829 , “went so far as to state that ‘States may not place an absolute prohibition on certain types of potentially misleading information [e.g., a listing of areas of practice,] if the information also may be presented in a way that is not deceptive,’ ” Zauderer, 471 U.S. at 644 , 105 S.Ct. at 2278 , 85 L.Ed.2d at 668 , quoting In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937 , but this “dictum”, as Zauderer calls it, does not require us to invalidate a prohibition on the listing of areas of practice by unlicensed practitioners if the prohibition “directly advances a substantial governmental interest.” Zauderer, 471 U.S. at 641 and 644, 105 S.Ct. at 2277 and 2279, 85 L.Ed.2d at 666 and 668, “Substantial governmental interest” is a phrase that can obviously cover a multitude of sins, and it is one that I should have thought expansive enough to cover Chapter 313 of the Kentucky Revised Statutes.

The Federal Trade Commission, in an amicus brief urging affirmance of the district court’s judgment, has argued very persuasively that “there are sound reasons of economics and policy for encouraging vigorous commercial competition among professionals.” The question before us is not a question of “economics and policy,” however, but a question of constitutional law. The Constitution, as Mr. Justice Holmes once observed, does not enact the Social Statics of Mr. Herbert Spencer, and as Justice Rehnquist said in his Virginia Pharmacy dissent, “there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.” 425 U.S. at 784 , 96 S.Ct. at 1836 .

It may well be true, as the FTC argues, that Kentucky’s regulatory scheme has “adverse effects on competition and consumer welfare,” just as it may well be true, as the Chairman of the Legal Services Corporation has recently argued, that statutes prohibiting the unauthorized practice of law cannot be justified in terms of economic efficiency. See “Clash Over Legal Services,” A.B.A. Journal/April 1, 1987, at 17. I take it that nothing in the United States *513 Constitution requires the several states to permit intelligent and literate lay people to practice law and advertise that they do so, however, and if state legislatures may enact laws that limit the supply and increase the prices of legal services — an economic “good” the consumers of which seldom face anything worse than bankruptcy or jail — surely legislatures have at least as much discretion when dealing with the healing arts, where the consumers’ very lives may hang in the balance.

The fact that Dr. Parker himself happens to be highly skilled in orthodontics is, I believe, immaterial. If Dr. Parker does not choose to become a licensed orthodontist, the state need not allow him to practice orthodontia regardless of whether the public would benefit from his doing so; the validity of general laws does not depend upon their having a beneficial effect in every individual application. But if the state has the power flatly to prohibit the practice of orthodontia by persons not licensed as orthodontists, imposition of the far less drastic restriction heretofore chosen by the Kentucky legislature ought to pass muster too, it seems to me. The less drastic restriction presumably means that orthodontic services will be more widely available, at lower cost, than would be the case if the more drastic restriction were adopted, even as it imposes at least a modest impediment to the sale of such services by a class of persons who, as a group, may reasonably be assumed to possess a lower level of skill in orthodontia than that possessed by Kentucky’s licensed orthodontists. Not an elegant reconciliation of conflicting interests, perhaps, but an acceptable one, in my view.

What Roberto Unger has called “the standard disenchanted view of legislative politics” may tempt judges who enjoy life tenure to assume that they are better situated to discern the public interest than those who must answer to the public at election time. I do not share that assumption or the “standard” disenchantment with representative government. Even if I thought the courts uniquely qualified to determine what is in the public interest, however, I doubt that I could be shaken in my belief that the public interest itself requires courts to recognize that there is a very broad range of matters on which legislatures must be accorded the right to be wrong. The present case, in my judgment, falls within that broad range. If the Kentucky legislature has made a mistake, I do not think it is a mistake of constitutional magnitude; and I question the soundness of a judicial decision which, in attempting to correct a perceived mistake by the legislature, may simply encourage the legislature to make a bigger mistake, and one that we would be powerless to correct.

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