Dentists Get a Special Reason to Smile in Appeals Court Decision

Dentists in Texas now have a special reason to smile. Last week, the Fifth Circuit Court of Appeals overturned a Texas law prohibiting dentists from advertising specialties. This was the latest decision limiting government authority to censor commercial speech by regulating the use of certain words defined by the government.

The lawsuit challenged a Texas law which only allowed dentists to advertise specialties recognized by both the Texas State Board of Dental Examiners and the American Dental Association (ADA). For instance, the American Academy of Implant Dentistry (AAID) and two plaintiffs in the case challenged the law because implant dentistry was not recognized as a specialty by the ADA and the Board—these same plaintiffs and the AAID sued the Board in 2012 over the law, prompting revisions in existing regulation and adding another regulation. The Court struck down this regulation because advertisements are a form of commercial speech subject to First Amendment protections and “[the] Board’s argument [for the regulation] 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.”

Texas is not alone in trying to use strict word regulations to hamper commercial speech. A similar decision was also issued in an Institute for Justice (IJ) case in Florida over whether skim milk could be labeled as such. In 2012, the Florida Department of Agriculture and Consumer Service (DACS) ordered Mary Lou Wesselhoeft’s Ocheesee Creamery to stop using the term “skim milk” on its labels in 2012 because DACS defined skim milk as having the same amount of vitamin A as whole milk. Since skimming the fat removes much of the fat-soluble vitamin A, the Creamery was told it had to either inject vitamin A additives or stop labeling its skim milk as “skim milk.” After futilely attempting to reason with the government for two years, Wesselhoeft partnered with IJ in 2014 to challenge DACS’s ban. In March 2017, the Eleventh Circuit Court of Appeals ruled that DACS’s ban on Ocheesee Creamery’s use of the term “skim milk” to describe its all-natural skim milk violated the First Amendment. The appellate court’s ruling resulted in a district court judgment on June 12, 2017, allowing Ocheesee Creamery to start selling skim milk again, which it is now doing.

Dentists and dairy farmers are not the only professions where government is trying to control speech. In Oregon, the Institute for Justice is representing Mats Jarlstrom who was fined $500 for publicly suggesting that yellow light should last slightly longer to accommodate for cars making right turns. The Oregon State Board of Examiners for Engineering and Land Surveying alleged that Jarlstrom engaged in the unlicensed “practice of engineering” by critiquing the existing traffic-light system and sharing his ideas with “members of the public.” Although, Jarlstrom is not a licensed engineer, he has the Swedish equivalent of an American Bachelor of Science in electrical engineering and worked as an airplane-camera mechanic in the Swedish Air Force before immigrating to United States in 1992.

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