Talsky v. Department of Registration & Education

MR. JUSTICE DOOLEY, also dissenting:

The majority commingles and confuses section 16(4) of the Medical Practice Act relating to ethical conduct and section 16(13) prohibiting advertising by all licensees (Ill. Rev. Stat. 1971, ch. 91, pars. 16a(4), 16a(13)).

Section 16(13) prohibits, “[e]xcept as otherwise provided in Section 16.01, advertising or soliciting, by himself or through another, by means of handbills, posters, circulars, stereopticon slides, motion pictures, radio, newspapers or in any other manner for professional business.” Ill. Rev. Stat. 1971, ch. 91, par. 16a(13).

The statute exempts from the ban, by reference to another section of the Act, listing in telephone or professional directories and the issuance of professional cards of prescribed dimensions with contents limited to name, title, address, phone, degrees and specialty. Ill. Rev. Stat. 1971, ch. 91, par. 16a—1.

The root cause of this controversy is the constitutionality of the prohibition against all advertising. In holding this statute constitutional the majority opinion goes directly counter to the recent decisions of the United States Supreme Court defining first amendment rights. In so doing, it is out of touch with today’s trend of the law.

I take no issue with the majority review of early cases determining that the due process clause was not infringed by imposing regulations on those engaged in the medical profession. (Semler v. Oregon State Board of Dental Examiners (1935), 294 U.S. 608 , 79 L. Ed. 1086 , 55 S. Ct. 570 .) My concern — and it is a grave one — is with our duty under the fourteenth amendment to protect first amendment rights as interpreted by the United States Supreme Court (Bigelow v. Virginia (1975), 421 U.S. 809, 811 , 44 L. Ed. 2d 600, 606 , 95 S. Ct. 2222, 2227 ), and to determine whether section 16(13) of the Medical Practice Act infringed such rights.

Some 25 years ago the United States Supreme Court in Valentine v. Chrestensen (1942), 316 U.S. 52, 54 , 86 L. Ed. 1262, 1265 , 62 S. Ct. 920, 921 , in considering a municipal sanitary ordinance prohibiting the distribution of advertising handbills on streets, limited first amendment protection of “commercial speech.” But what constituted “commercial speech” was not defined. In the quarter century since Chrestensen the United States Supreme Court has retreated from that position and finally rejected any such all-pervasive lack of protection. Bigelow v. Virginia (1975), 421 U.S. 809, 818 , 44 L. Ed. 2d 600, 609 , 95 S. Ct. 2222, 2230-31 .

Although courts have consistently held that a prohibition of deceptive advertising does not offend the first amendment (Donaldson v. Read Magazine, Inc. (1948), 333 U.S. 178, 189 , 92 L. Ed. 628, 640 , 68 S. Ct. 591, 597 ), it is well established that advertising is a medium of information and persuasion providing much of the day-today education of the American public and facilitating allocation of resources necessary to a free-enterprise economy. (Bates v. State Bar (1977), 433 U.S. 350 , 364, 53 L. Ed. 2d 810, 823 , 97 S. Ct. 2691, 2699 ; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 765 , 48 L. Ed. 2d 346, 360 , 96 S. Ct. 1817, 1827 ; Bigelow v. Virginia (1975), 421 U.S. 809, 821 , 44 L. Ed. 2d 600, 612 , 95 S. Ct. 2222, 2232 ; Developments in the Law—Deceptive Advertising, 80 Harv. L. Rev. 1005 , 1027 (1967).) It is, therefore, entitled to first amendment protection. See also Pittsburgh Press Co. v. Pittsburgh Com. on Human Relations (1973), 413 U.S. 376 , 37 L. Ed. 2d 669 , 93 S. Ct. 2553 ; New York Times Co. v. Sullivan (1964), 376 U.S. 254, 270 , 11 L. Ed. 2d 686, 701 , 84 S. Ct. 710, 721 ; NAACP v. Button (1963), 371 U.S. 415 , 9 L. Ed. 2d 405 , 83 S. Ct. 328 ; Note, Commercial Speech—An End in Sight to Chrestensen?, 23 DePaul L. Rev. 1258 , 1269 (1974); Note, Advertising, Solicitation and the Professions’s Duty to Make Legal Counsel Available, 81 Yale L.J. 1181 , 1186 (1972).

In Pittsburgh Press Co. v. Pittsburgh Com. on Human Relations (1973), 413 U.S. 376 , 37 L. Ed. 2d 669 , 93 S. Ct. 2553 , in which discriminatory advertisement was not entitled to first amendment protection, the court indicated that in some situations commercial advertising may serve first amendment interests and prevail when balanced against governmental interest in regulation. In the ensuing years in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748 , 48 L. Ed. 2d 346 , 96 S. Ct. 1817 , and in Bates v. State Bar (1977), 433 U.S. 350 , 53 L. Ed. 2d 810 , 97 S. Ct. 2691 , the United States Supreme Court unequivocally held that advertising was entitled to first amendment protection. Here, the majority undercuts the thrust of Virginia Pharmacy and Bates.

In Virginia Pharmacy the United States Supreme Court invoked the balancing approach. While acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, (just as the State has an interest in maintaining professionalism among chiropractors), the court held that a statute banning all advertising of price lists violated first amendment rights. It stated:

“It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.” ( 425 U.S. 748, 770 , 48 L. Ed. 2d 346, 363 , 96 S. Ct. 1817, 1829 .)

Although the court indicated that regulation of certain kinds of speech would be permissible, i.e., time, place and manner restrictions, and false, deceptive or misleading speech, it recognized that such a permissible regulation was not before it. First amendment rights were violated.

It is that determinative factor in Virginia Pharmacy which the majority here overlooks. Although some type of commercial-speech regulation could be deemed constitutional, such a permissible regulation was not before it. As a result, the Supreme Court held the regulation unconstitutional in violation of first amendment rights. Here, too, we have no such permissible regulation or statute which could, under Virginia Pharmacy, be constitutional.

On the contrary, section 16(13) of the Medical Practice Act does not merely restrict false, deceptive or misleading speech, or limit the time, place and manner of advertising. It prohibits all advertising and soliciting in all known modes or “in any other manner.” (Ill. Rev. Stat. 1971, ch. 91, par. 16a(13).) Under the Virginia Pharmacy case this court is obliged to consider the statute before it, not what it might be, in determining whether first amendment rights are involved. What might have been can never be known — even to a court.

Most recently, in Bates v. State Bar (1977), 433 U.S. 350 , 53 L. Ed. 2d 810 , 97 S. Ct. 2691 , the Supreme Court condemned as violative of first amendment rights a comprehensive ban on all advertising by members of the legal profession. The court stated: “In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.” (Emphasis added.) ( 433 U.S. 350 , 379, 53 L. Ed. 2d 810, 833 , 97 S. Ct. 2691, 2707 .) While advertising by attorneys may not be subjected to blanket suppression, it was recognized that “there may be reasonable restrictions on the time, place and manner of advertising” ( 433 U.S. 350 , 384, 53 L. Ed. 2d 810, 836 , 97 S. Ct. 2691, 2709 ). In Bates the statute before the Supreme Court had no such “reasonable restrictions” on advertising and therefore infringed first amendment rights. The same may be said of the statute before us today.

I cannot perceive how the majority opinion can so strain the language in Virginia Pharmacy and Bates to sustain its position that section 16(13), a blanket suppression of advertising, is constitutional. The majority, we assume, is aware that we are not considering permissible “reasonable restrictions” on advertising. The particular statute imposes a comprehensive ban on all advertising. •

The majority concedes that, under Bates, section 16(13) may be “overly broad.” It admits that “it may operate in some cases to suppress commercial speech in violation of the first amendment,” and even goes further to suggest that the General Assembly reconsider the statute “in the light of current constitutional interpretations.” But then it draws away from the vortex. In the exercise of a splendid optimism, it construes section 16(13) as though it were rewritten by the court and permitted “restrained professional advertising,” and barred only false, deceptive or misleading advertising, and, therefore, finds it constitutional. Does the majority actually hold that section 16(13), barring all advertising by those subject to the Medical Practice Act, does not mean what it says? Just what are the terms of this apparently “rewritten” statute? How can such terms be applied by any court?

We are obliged to adjudicate the constitutionality of section 16(13) as it is written, not as it might be rewritten by this court to conform to language in the United States Supreme Court cases. In my opinion it is an improper exercise of a judicial function to rewrite this statute banning all advertising to mean that it prohibits only misleading advertising. In so doing, we abdicate a fundamental function of the third branch of government, to determine the constitutional character of the legislative product. More than that, we usurp the legislative function in, in effect, rewriting a statute.

The judgment of the circuit court voiding section 16(13) of the Medical Practice Act as unconstitutional ought to be affirmed.