holding that categorical ban of the phrase “family dentistry” was an unconstitutional abridgement of free speech because the phrase was only potentially misleading
How later courts described this case
- holding that categorical ban of the phrase “family dentistry” was an unconstitutional abridgement of free speech because the phrase was only potentially misleading
- “The legislature enacted the Administrative Review Law in order to provide a simple single review from specified administrative decisions.”
- dentist appealing sanctions entitled to stay as a matter of due process under court’s inherent power notwithstanding lack of statutory authority
- the lack of subject matter jurisdiction deprives the trial court of all power except to dismiss the action
Written by the judges who cited it.
The opinion
JUSTICE HEIPLE, concurring in part and dissenting in part:
I agree with the majority’s conclusion that trial courts may issue stays involving the Dental Practice Act in appropriate circumstances. The majority, however, in approving the prohibition of dental advertisements using the terms “quality dentistry” and “total comfort,” has unnecessarily and unconstitutionally limited an individual’s right to free commercial speech.
The relevant facts are that Dr. Edward Ardt, a practicing dentist, advertised in various ways stating, inter alia, “quality dentistry for all family needs and all ages” and “Total comfort available with anesthetic techniques.” Section 45 of the Dental Practice Act states that it is unlawful for a dentist to advertise using misleading statements. Specifically, this section prohibits a dentist from claiming superior quality of care and from advertising the ability to practice dentistry -without causing pain. (Ill. Rev. Stat. 1987, ch. 111, par. 2345.) The majority, focusing on the terms “quality dentistry” and “total comfort” concludes that advertising with such terms is misleading and thus may be prohibited.
Commercial speech, while protected under the first amendment, may be restrained if it is of a false, deceptive or misleading character. (Bates v. State Bar (1977), 433 U.S. 350 , 383, 53 L. Ed. 2d 810, 835 , 97 S. Ct. 2691, 2709 .) Thus, the focus of the present case centers on whether advertising “quality dentistry” and “total comfort” is false, deceptive or misleading to the general public.
The term “quality dentistry” carries the obvious implication that the dental work is superior. The term “total comfort” carriés the implication that the treatment is free of pain.
Up to this moment, what has been totally overlooked in these proceedings is that Dr. Ardt’s claims may be true. Isn’t it possible that Dr. Ardt’s dental services may be superior? Isn’t it also possible that “with anesthetic techniques,” his dental services may be performed without pain? My question to the Illinois Department of Professional Regulation and to the majority of this court is a simple one. If Dr. Ardt is, in fact, offering quality dentistry that is free of pain, how can his claim be misleading? The decision in this case should go beyond a mere analysis of words. It should focus on the facts. That has not been done. Advertising is not misleading if it is true. Truth is a defense in libel and slander cases. Should it not also be a defense in a claimed case of misleading advertising?
The restrictions on dental advertising in this and similar cases are claimed to be justified on the grounds that the public needs this type of protection and that without it they will be taken advantage of, conned, gulled, and lured into the offices of unscrupulous dentists. The plain and unvarnished truth of the matter is that these restrictions and sanctions are in place as a service to the dental profession to limit and restrict competition among dentists. All else is window dressing. Beyond that, the law presumes that the general public are a bunch of simple minded peasants who, if they can read and write, are too dumb to protect themselves from the wiles of a dentist who offers quality care and pain-free treatment. While there are limits, of course, I attribute a higher degree of sophistication to my fellow countrymen than this case implies.
Dr. Ardt has been a practicing dentist for over a quarter of a century. He is a graduate of an approved college of dentistry. He long ago passed his state licensing examination and met all state requirements for practicing dentistry in Illinois. He is not being sanctioned in this case for dental malpractice. He is being sanctioned for misleading advertising. That has never been established.
Accordingly, I respectfully dissent from that portion of the majority opinion which concludes without proof that Dr. Ardt engaged in misleading advertising.
JUSTICE BILANDIC joins in this partial concurrence and partial dissent.