AMERICAN ACADEMY OF IMPLANT DENTISTRY; AMERICAN SOCIETY OF DENTIST ANESTHESIOLOGISTS; AMERICAN ACADEMY OF ORAL MEDICINE; AMERICAN ACADEMY OF OROFACIAL PAIN; JAY E. ELLIOTT, D. D. S.; MONTY BUCK, D. D. S.; JAROM C. HEATON, D. D. S.; MICHAEL A. HUBER, D. D. S.; EDWARD F. WRIGHT, D. D. S., M. S., Plaintiffs-Appellees
KELLY PARKER, in her official capacity as Executive Director of the Texas State Board of Dental Examiners, TAMELA L. GOUGH, D. D. S., M. S., in her official capacity as a Member of the Texas Board of Dental Examiners; STEVE AUSTIN, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; TIM O'HARE, in his official capacity as a Member of the Texas Board of Dental Examiners; KIRBY BUNEL, JR., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; WILLIAM R. BIRDWELL, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; EMILY A. CHRISTY, in her official capacity as a Member of the Texas Board of Dental Examiners; JAMES W. CHANCELLOR, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; RODOLFO G. RAMOS, JR., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; LEWIS WHITE, in his official capacity as a Member of the Texas Board of Dental Examiners; WHITNEY HYDE, in her official capacity as a Member of the Texas Board of Dental Examiners; RENEE CORNETT, R. D. H., in her official capacity as a Member of the Texas Board of Dental Examiners; D. BRADLEY DEAN, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; CHRISTIE LEEDY, D. D. S., in her official capacity as a Member of the Texas Board of Dental Examiners; LOIS PALERMO, R. D. H., in his official capacity as a Member of the Texas Board of Dental Examiners; EVANGELIA MOTE, in her official capacity as a Member of the Texas Board of Dental Examiners, Defendants-Appellants
from the United States District Court for the Western
District of Texas
ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
H. SOUTHWICK, Circuit Judge.
plaintiffs challenge a provision in the Texas Administrative
Code regulating advertising in the field of dentistry. The
district court held that the provision violated the
plaintiffs' First Amendment right to engage in commercial
speech. It therefore enjoined enforcement of the provision as
applied to the plaintiffs. The defendants appealed. We
AND PROCEDURAL BACKGROUND
law prohibits dentists from advertising as specialists in
areas that the American Dental Association ("ADA")
does not recognized as specialties. See Tex. Admin.
Code § 108.54. The plaintiffs seek to enjoin enforcement
of Section 108.54, as they wish to advertise in areas
recognized as specialties by other dental organizations but
not by the ADA. They argue the First and Fourteenth
Amendments give them the right to do so.
appeal involves several plaintiffs. The organizational
plaintiffs include the American Academy of Implant Dentistry,
the American Society of Dental Anesthesiologists, the
American Academy of Oral Medicine, and the American Academy
of Orofacial Pain. These organizations are national
organizations with member dentists. The purpose of each
organization is to advance the interests of dentists
practicing in the organization's respective practice
area. Each organization sponsors a credentialing board and
offers credentials to members who demonstrate expertise in
their respective field.
individual plaintiffs are five dentists, three of whom are in
private practice and two of whom are professors at the
University of Texas Health Science Center School of
Dentistry. The individual plaintiffs limit their practice to
one of the following practice areas: implant dentistry,
dental anesthesiology, oral medicine, and orofacial pain.
Each of the individual plaintiffs has been certified as a
"diplomate" by one of the organizational
plaintiffs' credentialing boards, indicating that the
plaintiff has achieved that board's highest honor by
meeting certain requirements set by the board "including
training and experience beyond dental school."
Texas Occupations Code provides that the Texas State Board of
Dental Examiners may "adopt and enforce reasonable
restrictions to regulate advertising relating to the practice
of dentistry . . . ." See Tex. Occ. Code §
254.002(b). The plaintiffs take issue with one of the
Board's regulations, Texas Administrative Code Section
108.54. Section 108.54 provides:
A dentist may advertise as a specialist or use the terms
"specialty" or "specialist" to describe
professional services in recognized specialty areas that are:
(1) recognized by a board that certifies specialists in the
area of specialty; and (2) accredited by the Commission on
Dental Accreditation of the American Dental Association.
Admin. Code § 108.54(a). Part (b) lists the ADA's
nine recognized specialty areas as the ones that meet the
requirements of part (a). The Board does not itself certify
specialties but instead relies exclusively on the ADA for
that purpose. Section 108.54 also requires certain
ADA-related education or board-certification qualifications
in order to advertise as a specialist. See Tex.
Admin. Code § 108.54(c).
108.54 prohibits the individual plaintiffs from advertising
as specialists or referring to their practice areas as
specialties because their practice areas are not recognized
as such by the ADA. The ADA has considered whether to grant
specialty recognition to the plaintiffs' respective
practice areas, but thus far it has denied that recognition.
Nevertheless, the plaintiffs are not completely forbidden
from advertising their practice areas. In 2012, two of the
individual plaintiffs in this case and the American Academy
of Implant Dentistry challenged a separate provision of the
Texas Administrative Code that restricted the plaintiffs from
advertising their credentials and holding themselves out as
specialists in implant dentistry. The Board responded by
revising an existing regulation and adding another.
See Tex. Admin. Code §§ 108.55, 108.56.
Section 108.55 allows general dentists who do some work
related to the specialty areas listed in Section 108.54(b) to
advertise those services as long as they include a disclaimer
that they are a general dentist and do not imply
specialization. Section 108.56 provides that dentists may
advertise "credentials earned in dentistry so long as
they avoid any communications that express or imply
specialization . . . ." See also Tex. Admin.
Code § 108.57 (prohibiting false, misleading, or
the current regulations, the plaintiffs may advertise
credentials they have earned and the services they provide
only if they clearly disclose that they are a "general
dentist" and do not "imply specialization."
See Tex. Admin. Code §§ 108.55, 108.56.
The plaintiffs complain that this regime prevents them from
truthfully holding themselves out as "specialists"
in their fields.
March 2014, the plaintiffs brought this action against the
executive director and members of the Board in their official
capacities. The plaintiffs challenged Section 108.54 on First
and Fourteenth Amendment grounds, and the parties eventually
filed cross-motions for summary judgment. The district court
granted summary judgment to the plaintiffs in part,
concluding that Section 108.54 "is an unconstitutional
restriction on Plaintiffs' First Amendment right to free
commercial speech." The court enjoined the defendants
"from enforcing Texas Administrative Code § 108.54
to the extent it prohibits Plaintiffs from advertising as
specialists or using the terms 'specialty' or
'specialist' to describe an area of dentistry not
recognized as a specialty by the American Dental Association,
or any other provision of Texas law inconsistent with [the
district court's] opinion." The court determined the
plaintiffs' "remaining Fourteenth Amendment claims
are without merit" and granted summary judgment to the
defendants on those claims. The defendants appealed.
review a judgment on cross-motions for summary judgment
de novo "with evidence and inferences taken in
the light most favorable to the nonmoving party."
White Buffalo Ventures, LLC v. Univ. of Texas at
Austin, 420 F.3d 366, 370 (5th Cir. 2005). Summary
judgment is proper when "there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a).
case involves commercial speech, which is protected by the
First Amendment. See Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
761-62 (1976). "Commercial expression not only serves
the economic interest of the speaker, but also assists
consumers and furthers the societal interest in the fullest
possible dissemination of information." Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New
York, 447 U.S. 557, 561-62 (1980).
commercial speech is protected by the First Amendment, courts
give to it "lesser protection . . . than to other
constitutionally guaranteed expression." Id. at
563. A four-part test applies:
At the outset, we must determine whether the expression is
protected by the First Amendment. For commercial speech to
come within that provision, it at least must concern lawful
activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both
inquiries yield positive answers, we must determine whether
the regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is
necessary to serve that interest.
Id. at 566. "The party seeking to uphold a
restriction on commercial speech carries the burden of
justifying it." Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 71 n.20 (1983). Within this
framework, we consider the plaintiffs' challenge to
Section 108.54. We conclude that the Board fails to justify
Section 108.54 under the Central Hudson analysis. We
do not reach the plaintiffs' Fourteenth Amendment
we begin our analysis, we measure the reach of the district
court's ruling. The parties dispute whether the district
court enjoined Section 108.54 facially or as applied. We find
that answer in the district court's own words: Section
108.54 "is an unconstitutional restriction on
Plaintiffs' First Amendment right to free commercial
speech." We interpret that language to mean that Section
108.54 is held to be unconstitutional only as applied to
these plaintiffs. Neither the district court nor we address
whether this language would also fail a facial challenge.
Lawful Activity, Not Misleading
order for commercial speech to be protected under the First
Amendment, "it at least must concern lawful activity and
not be misleading." Central Hudson, 447 U.S. at
566. "The first part of the test is really a threshold
determination whether the speech is constitutionally
protected . . . ." Byrum v. Landreth, 566 F.3d
442, 446 (5th Cir. 2009).
parties do not dispute that the relevant speech in this case
concerns lawful activity. Texas law permits the individual
plaintiffs to limit their practice to the fields of implant
dentistry, dental anesthesiology, oral medicine, and
orofacial pain. We agree, then, that advertising as a
specialist in one of these practice areas concerns lawful
parties disagree as to whether the speech would be misleading
or just potentially misleading. The distinction is important.
"States may not place an absolute prohibition on certain
types of potentially misleading information . . . if the
information also may be presented in a way that is not
deceptive." In re R.M.J., 455 U.S. 191, 203
(1982). "But when the particular content or method of
the advertising suggests that it is inherently misleading or
when experience has proved that in fact such advertising is
subject to abuse, the States may impose appropriate
Board argues that the relevant speech here is inherently
misleading because the term "specialist, " in the
context of unregulated dental advertising, is devoid of
intrinsic meaning. The Board urges us to categorize the term
"specialist" in a completely unregulated context,
reasoning "the State need only show that an unregulated,
unadorned, and unexplained claim of 'specialist'
status in a particular practice area is inherently
misleading[.]" In support, the Board offers witness
testimony from several dentists regarding what they perceive
"specialist" to mean. Observing that the witnesses
characterize "specialist" differently, the Board
reasons the term "specialist" has no agreed-upon
meaning, is devoid of intrinsic meaning, and is therefore
been "suggested that commercial speech that is devoid of
intrinsic meaning may be inherently misleading, especially if
such speech historically has been used to deceive the
public." Peel v. Attorney Registration &
Disciplinary Comm'n of Illinois, 496 U.S. 91, 112
(1990) (Marshall, J. & Brennan, J., concurring in the
judgment). The Court noted, for example, that a trade name is
"a form of commercial speech that has no intrinsic
meaning." Friedman v. Rogers, 440 U.S. 1, 12
(1979). "A trade name conveys no information about the
price and nature of the services offered . . . until it
acquires meaning over a period of time . . . ."
Id. The term "specialist, " by contrast,
is not devoid of intrinsic meaning. All of the testimony
offered by the Board demonstrates that the term
"specialist" conveys a degree of expertise or
advanced ability. Although different consumers may understand
the degree of expertise in different ways, that only shows
the term has the potential to mislead. It does not mean the
term is devoid of intrinsic meaning and, therefore,
Board nevertheless urges that the use of the term
"specialist" is unprotected because, unlike in
Peel, the "specialist" designation might
be used without reference to any certifying organization. The
Court in Peel considered a claim of
"certification as a 'specialist' by an
identified national organization[.]" Peel, 496
U.S. at 105. The problem here is the absence of any group
imprimatur behind the label "specialist."
Nonetheless, the term "specialist" is not rendered
devoid of intrinsic meaning, and thereby inherently
misleading, simply because the organization responsible for
conferring specialist credentials on a particular dentist is
not identified in the advertisement. See Ibanez v.
Florida Dep't of Bus. & Prof'l Regulation, Bd. of
Accountancy, 512 U.S. 136, 145 & n.9 (1994). Whether
the absence of that information contributes to the
potentially misleading character of the speech is a separate
there is no evidence that the term "specialist" has
been or will be used in a way that is distinct from its
ordinary meaning. In one appeal, we held that the use of the
term "invoice" in automobile advertising was
inherently misleading because it was "calculated to
confuse the consumer[.]" Joe Conte Toyota, Inc. v.
Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 757
(5th Cir. 1994) (quotation marks omitted). It was misleading
because an advertised price of "$49.00 over
invoice" could mean a multitude of prices other than the
dealer's true cost because "holdbacks, incentives,
and rebates" were included in the dealer's cost.
Id. The word "invoice" did "not mean
what it appear[ed] to mean" and conveyed no useful
information to the consumer. Id.
the individual plaintiffs intend to use
"specialist" in the same manner as dentists
practicing in ADA-recognized specialties, namely, to convey
useful, truthful information to the consumer. Unlike in
Joe Conte, the relevant term -
"specialist" as opposed to "invoice" -
will be used in a way that is consistent with its ordinary
the Board suggests that the plaintiffs' proposed speech
is inherently misleading simply because it does not comply
with the regulatory requirements imposed by the Board.
According to the Board, Section 108.54 "is what gives
'specialist' a standardized, reliable meaning in
dental advertising in Texas." The Board's argument
would grant it the ability to limit the use of the term
"specialist" simply by virtue of having created a
regime that defines recognized and non-recognized
specialties. See Byrum, 566 F.3d at 447. Even if
appropriate regulation is warranted because the
"specialist" designation might be potentially
misleading, it is not inherently misleading merely because it
does not align with the Board's preferred definition of
fundamental issue is whether the speech is subject to First
Amendment protection. "Truthful advertising related to
lawful activities is entitled to the protections of the First
Amendment." In re R.M.J., 455 U.S. at 203. The
dentists' proposed speech "may be presented in a
non-deceptive manner and [is] not 'inherently likely to
deceive' the public." See Pub. Citizen, Inc. v.
Louisiana Attorney Disciplinary Bd., 632 F.3d 212, 219
(5th Cir. 2011) (quoting In re R.M.J., 455 U.S. at
202). "Given the complete absence of any evidence of
deception, the Board's concern about the possibility of
deception in hypothetical cases is not sufficient to rebut
the constitutional presumption favoring disclosure over
concealment." Ibanez, 512 U.S. at 145
(quotation marks and citations omitted). By completely
prohibiting dentists from advertising as specialists simply
because their practice area is one not recognized as a
specialty by the ADA, "truthful and nonmisleading
expression will be snared along with fraudulent or deceptive
commercial speech[.]" See Edenfield v. Fane,
507 U.S. 761, 768-69 (1993).
plaintiffs' proposed speech is not inherently misleading.
Even so, the Board may regulate potentially misleading speech
if the regulation satisfies the remaining elements of the
Central Hudson test. See id. at 769. In
order to meet its burden, the Board must "show that
the restriction directly and materially advances a
substantial state interest in a manner no more extensive than
necessary to serve that interest." Ibanez, 512
U.S. at 142 (citing Central Hudson, 447 U.S. at
566). We now look at those issues.
parties agree that the Board has asserted substantial
interests. The plaintiffs dispute two of the interests
articulated by the Board: "preventing the public from
being misled to believe that qualification as a
'specialist' under non-ADA-approved criteria is
equivalent to qualification as a 'specialist' under
ADA-approved criteria, " and "exercising its
'power to establish standards for licensing
practitioners, ' Goldfarb v. Virginia State Bar,
421 U.S. 773, 792 (1975)[.]" The plaintiffs argue that
these are not substantial interests.
interests appear to be related to the state's interest in
"ensuring the accuracy of commercial information in the
marketplace, establishing uniform standards for certification
and protecting consumers from misleading professional
advertisements." The Board considers the plaintiffs'
objections to be "inconsequential" because the
plaintiffs concede "the State has a substantial interest
in protecting the public from misleading advertising[.]"
As the plaintiffs point out, however, the Board may not
assert a substantial interest in Section 108.54 itself simply
because "States have a compelling interest in the
practice of professions within their boundaries[.]"
See also Goldfarb, 421 U.S. at 792.
of these questions, we agree with the district court that the
Board has a substantial interest in "ensuring the
accuracy of commercial information in the marketplace,
establishing uniform standards for certification and
protecting consumers from misleading professional