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May 26th, 2017

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First Amendment has the teeth to help consumers

Noah Feldman

By Noah Feldman Bloomberg View

Published August 15, 2016

 First Amendment has the teeth to help consumers

The First Amendment was called in to do the dirty work last week on an Ohio rule that bans dentists from advertising their specialties while continuing to practice general dentistry. The rule should have been challenged by the Federal Trade Commission as an anti-competitive restraint on trade. Because it never was, the appeals court had to apply free-speech law.

The decision is an example of how First Amendment values have expanded beyond self-expression to consumer protection. Whether that expansion was a good idea or not, it's here to stay.

This story begins with the Ohio Dental Board that enacted the regulation. Its 13 members are appointed by the governor. By law nine of them have to be dentists, and three dental hygienists. There's just one member of the public. That's already a red flag that the board is likely to enact rules designed to help the dental profession, not the patients.

And the rule in question would seem to do just that. The board allows dental specialists, like the trained and qualified endodontist Russell Kiser, who brought the challenge to the rule, to practice general dentistry alongside their specialties. It even allows such specialists to advertise that they perform specialty services. But the board's rule says that specialists can't describe themselves as specialists while continuing to practice general dentistry. In other words, they can't use terms like "orthodontist," "periodontist" or "endodontist."

Enforcing its rule, the board told Kiser that "if you wish to continue to declare yourself as a specialist in endodontics, you must advertise [your services] accordingly, and limit your practice" to endodontics only, and perform no general dentistry.

What in the world could be the point of such a rule? Restraint of trade, that's what. Ordinary dentists don't want to have to compete with specialists for general dentistry patients. They worry that patients might be more inclined to get their general dentistry services from specialists.

By prohibiting specialists from advertising themselves as such while also practicing general dentistry, the nonspecialist Ohio dentists are protecting themselves from competition. That's bad for consumers, because it denies them access to information that would help them make informed care choices.

It's also illegal -- or at least it should be. The Federal Trade Commission has the job of prohibiting anti-competitive regulations that function as restraints on trade. So why didn't the FTC do something about it? The FTC would almost certainly have jurisdiction over the Ohio Dental Board. In 2015, the U.S. Supreme Court held that the FTC could bring a claim against the similarly constituted North Carolina dental board. The court rejected the argument that the board was in effect an agent of the state, emphasizing that its members were drawn from the profession it sought to regulate and that they weren't supervised by the state legislature. Maybe the FTC didn't know about the Ohio rule, or maybe it didn't care.

Either way, Kiser's legal challenge wasn't based primarily on the rule's anti-competitive nature. Instead it was based on free speech.

The opinion of the U.S. Court of Appeals for the 6th Circuit applied the Supreme Court's test for commercial speech. That test controls most advertising. It's more forgiving to government regulation than other First Amendment tests -- it has to be to sustain laws against false advertising.

But Supreme Court has also said that when a law "prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process," the court should be especially vigilant. The Ohio rule qualifies as such. Nothing about it protects consumers' interests.

Under commercial speech doctrine, the government must have a "substantial interest" in the law. The law must advance that interest in a "direct and material" way. And the law must be "in proportion" to the interest served.

The 6th Circuit didn't directly hold that the Ohio rule violates free speech -- it left that job to the district court. But it strongly hinted that the rule would fail the commercial speech test. It said that "the government's assertions cannot be taken at face value" when it comes to its interest in law, but must be scrutinized by the courts.

The implication was that the government could have no substantial interest in prohibiting Kiser from using the word "endodontist" while allowing him to advertise that he performs endodontics alongside general dentistry.

What's wrong with the Ohio rule isn't that it inhibits self-expression, but that it's an advertising ban designed to impede consumer choice. That isn't the classical First Amendment interest imagined by the framers. But for better or worse, it's become part of free-speech law now.


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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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