Dentist's legal battle with Ohio will continue

August 10, 2016 | By CALEB TROTTER

Advertising one’s area of expertise is usually desirable for both tooththe professional and the public. But if you’re a dentist in Ohio, regardless of whether you are completely qualified in a specialty area of dentistry, you might not be allowed to advertise yourself as a specialist in that area. Fortunately, last week, the Sixth Circuit Court of Appeals held that a dentist’s lawsuit challenging the constitutionality of the Ohio State Dental Board’s advertising regulations that prohibit him from advertising his special qualifications can move forward for consideration of the merits.

Dr. Russell Kiser is a licensed dentist in Ohio with postdoctoral education in endodontics (i.e. root-canal procedures). Dr. Kiser’s training and education qualify him as a specialist in endodontics. However, the Ohio State Dental Board prohibits specialists from advertising as a specialist in their field unless they limit their practice to only their specialty. Even though an endodontist is a licensed and qualified dentist, he can only practice endodontics–not basic dentistry or other dental disciplines–if he advertises he is a specialist in endodontics. Yet, a dentist who practices general dentistry–but doesn’t advertise as a specialist in endodontics–can still practice endodontics.

The practical effect of Ohio’s regulations is that a dentist who has undertaken training and education sufficient to qualify her as a specialist must choose between only advertising and practicing that specialty, or maintaining a general dentistry practice while being prohibited from advertising their special qualifications. Under this legal scheme, both the dentist and the public lose.

In Dr. Kiser’s case, he does not want to limit his practice to endodontics. Instead, he wants the ability to honestly inform patients of his specialized training in endodontics. Aside from helping Dr. Kiser advertise his practice, that information would also be helpful for the public to differentiate between dentists with basic qualifications in endodontics and those with more specialized training. Because Ohio law prevents Dr. Kiser from engaging in such useful and common-sense speech, in 2012 he challenged the regulations in court for violating his First and Fourteenth Amendment rights.

After Dr. Kiser succeeded on procedural claims, the District Court for the Southern District of Ohio dismissed his case in early 2015. On appeal, last week the Sixth Circuit held that Dr. Kiser’s First Amendment commercial speech claim, and his Fourteenth Amendment substantive due process and equal protection claims were validly raised and must be fully considered by the lower court. Regardless of whether Dr. Kiser is ultimately victorious, the Sixth Circuit’s most recent decision is noteworthy.

Analyzing the First Amendment issue, in an opinion authored by Judge Boggs, the Sixth Circuit considered the important distinction between unlawful conduct and unlawful terminology–a distinction the lower court failed to make. The district court held that because it is unlawful to advertise as a specialist while practicing beyond the scope of that specialty, then such an ad is an advertisement for illegal activity. The Sixth Circuit, however, recognized that interpretation would authorize every advertising ban–an unconstitutional outcome under Supreme Court precedent. Instead, because the conduct of practicing endodontics is lawful for specialists and generalists, the illegal-activity exception to the unconstitutionality of advertising bans does not apply.

In addition, the Sixth Circuit rejected the contention that advertising as an endodontist necessarily leads the public to believe the practitioner to be a Board-recognized specialist in endodontics. Rather, the court recognized the practical usefulness of dentists advertising their special training and held that Dr. Kiser is not engaging in inherently false, misleading, or deceptive advertising. As a result, the district court must subject Ohio’s dentist advertising regulations to intermediate scrutiny under the commercial speech test set out in Central Hudson–with the burden on the government to show the regulations are justified by a substantial government interest that is advanced in a “direct and material way” by the regulations, and are “in proportion” to that interest.

As to the Fourteenth Amendment claims, because–according to the court–the case is more properly framed as a commercial speech case, the Sixth Circuit rejected Dr. Kiser’s argument that the Dental Board regulations limit his right to earn a living. Nevertheless, because the First Amendment is incorporated to the states through the Fourteenth Amendment’s substantive Due Process Clause, the court held Dr. Kiser properly raised a substantive due process claim and reversed the district court’s dismissal of that claim. Likewise, the Sixth Circuit reversed the district court’s dismissal of Dr. Kiser’s equal protection claim because the lower court incorrectly applied rational basis review when intermediate scrutiny was appropriate due to the regulations’ discrimination against dentists “who do not meet the definition of a Board-recognized specialist by limiting their commercial-speech rights.”

While much work remains to vindicate Dr. Kiser’s First Amendment right to advertise his qualifications, it is good to see the Sixth Circuit takes that right seriously.