Snell v. Department of Professional Regulation

742 N.E.2d 1282, 252 Ill. Dec. 418, 318 Ill. App. 3d 972

• Court: Appellate Court of Illinois
• Decided: January 26, 2001
• Docket: 4-99-0876
• Status: Published

Opinions

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Joseph Snell, a licensed chiropractor, appeals from a September 1999 circuit court order affirming sanctions imposed against him by defendants, the Illinois Department of Professional Regulation (Department) and its then-director, Nikki M. Zollar, based on Snell’s violation of section 26 of the Medical Practice Act of 1987 (Act) (225 ILCS 60/26 (West Supp. 1999)). Snell argues that (1) the Department’s decision was against the manifest weight of the evidence; and (2) section 26, as applied to him, violates his first amendment right to free speech. Because we agree with Snell’s second argument, we reverse.

I. BACKGROUND

In December 1996, the Department filed an administrative complaint against Snell, which alleged, inter alia, that Snell violated the advertising provisions set forth in section 26 of the Act (225 ILCS 60/26 (West Supp. 1999)) by displaying in his office waiting room a 27-page booklet entitled “Our Patients Speak” (hereafter booklet). Section 26(2) of the Act provides, in pertinent part, that “[i]t is unlawful for any person licensed under this Act to use testimonials or claims of superior quality of care to entice the public.” 225 ILCS 60/26(2) (West Supp. 1999).

At a June 1997 administrative hearing, the evidence showed that the booklet contained preprinted forms entitled “My Chiropractic Story.” Each form contained 14 questions addressed to Snell’s past or current patients. The questions included the following: (1) “What led to your decision to try chiropractic?” (2) “Did you have any doubts that chiropractic would help you?” (3) “What were your first impressions of chiropractic, this office, and the doctor?” (4) “Is anyone else in your family a chiropractic patient?” (5) “How has chiropractic helped them?” (6) “What would you recommend to others who are sick, suffering, or in pain?” (7) “How do you feel about chiropractic, now that you have enjoyed its benefits?” The answers to the questions were supplied by the patients in their own handwriting, and each form was accompanied by the photograph and signature of the patient.

Following the hearing, the administrative law judge (ALJ) issued her ruling and found that the booklet contained testimonials in violation of section 26 of the Act. Based upon this finding, the ALJ recommended that Snell be reprimanded, pay a $2,500 fine, and complete certain continuing education courses. In September 1997, the Department’s medical disciplinary board adopted the ALJ’s findings of fact, conclusions of law, and recommendations, and ordered that Snell pay a $2,500 fine.

Snell subsequently sought administrative review of the Department’s decision by the circuit court. In September 1999, the circuit court upheld the Department’s decision. This appeal followed.

II. FIRST AMENDMENT CHALLENGE

Initially, we note that constitutional questions will not be considered where the case can be determined on other, nonconstitutional grounds. See People v. McDaniel, 164 Ill. 2d 173,180, 647 N.E.2d 266, 269 (1995); see also Lacny v. Police Board, 291 Ill. App. 3d 397, 400, 683 N.E.2d 1265, 1267 (1997). However, because it appears that defendants would prevail on the merits of Snell’s nonconstitutional claim, we address Snell’s constitutional argument.

Snell argues that by prohibiting his use of the booklet, section 26 violates his first amendment right to free speech. We agree.

A. Protection of Commercial Speech

Constitutional protection for commercial speech is a relatively recent development in the Supreme Court’s first amendment jurisprudence. Prior to the mid-1970s, the Supreme Court adhered to the broad rule that the Constitution imposes no restraint on governments with respect to commercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 1265, 62 S. Ct. 920, 921 (1942). In 1976, the Court changed course in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-62, 48 L. Ed. 2d 346, 358, 96 S. Ct. 1817, 1825-26 (1976), holding that purely commercial speech is entitled to first amendment protection from unwarranted governmental regulation. The Court expressed the belief that the free flow of commercial information is indispensable to the proper allocation of resources in a free enterprise system because it informs the numerous private decisions that drive the system. Virginia State Board of Pharmacy, 425 U.S. at 765, 48 L. Ed. 2d at 360, 96 S. Ct. at 1827.

The Supreme Court has continued to define the appropriate constitutional protection afforded to commercial speech since its holding in Virginia State Board of Pharmacy. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 622-23, 132 L. Ed. 2d 541, 548-49, 115 S. Ct. 2371, 2375 (1995) (listing history and holdings of the Court’s commercial speech cases). However, even today, first amendment protection of commercial speech is not absolute. “ ‘ “[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of [fjirst [a]mendment values,” and is subject to “modes of regulation that might be impermissible in the realm of noncommercial expression.” ’ ” Florida Bar, 515 U.S. at 623, 132 L. Ed. 2d at 549, 115 S. Ct. at 2375, quoting Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct. 3028, 3033 (1989), quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978).

B. Central Hudson’s Four-Part Test

Restrictions on commercial speech are analyzed under the four-part test set out in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 351, 100 S. Ct. 2343, 2351 (1980): In further refinement of the Central Hudson test, the Supreme Court in In re R.M.J., 455 U.S. 191, 203, 71 L. Ed. 2d 64, 74, 102 S. Ct. 929, 937 (1982), held that while the State may entirely prohibit misleading advertising, it may not absolutely prohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive. In addition, the Supreme Court has noted that the four parts of the Central Hudson test are not entirely discrete. Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 183-84, 144 L. Ed. 2d 161, 174, 119 S. Ct. 1923, 1930 (1999). “All are important and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the [fjirst [a]mendment inquiry, but the answer to which may inform a judgment concerning the other three.” Greater New Orleans Broadcasting, 527 U.S. at 183-84, 144 L. Ed. 2d at 174, 119 S. Ct. at 1930.

“At the outset, we must determine whether the expression is protected by the [fjirst [a]mendment. 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.”

1. The First Prong of the Central Hudson Test

At the outset, we conclude that the booklet constitutes commercial speech. See Central Hudson, 447 U.S. at 561-62, 65 L. Ed. 2d at 348, 100 S. Ct. at 2349 (commercial speech consists of “expression related solely to the economic interests of the speaker and its audience” and of “ ‘speech proposing a commercial transaction’ ”), quoting Ohralik, 436 U.S. at 456, 56 L. Ed. 2d at 453, 98 S. Ct. at 1918.

Defendants do not contend that the booklet is actually deceptive, misleading, false, or illegal. Indeed, at oral argument before this court, the Department conceded that the booklet itself is not deceptive, misleading, or false. Instead, the Department asserts that the testimonials in the booklet, like all testimonials, are “inherently misleading.” We disagree.

In Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 523, 665 N.E.2d 1346, 1354 (1996), our supreme court noted that because the first amendment’s concern for commercial speech is based on the informational function of advertising, the government may legitimately suppress commercial expression that is more likely to deceive the public than inform it. See Bates v. State Bar, 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709 (1977) (false, deceptive, or misleading advertising is subject to restraint).

A “testimonial” has been defined as “[a] formed, or written statement testifying to a particular truth or fact” (American Heritage Dictionary 1330 (1975)) and as “a statement testifying to benefits received” (Merriam-Webster’s Collegiate Dictionary 1218 (10th ed. 1996)). Although testimonials have the potential to be misleading, there is nothing inherently misleading about them. Testimonials are not innately more likely to deceive the public than inform it. Indeed, the testimonials in Snell’s booklet, which included candid patient comments such as (1) “Examine all your options. See if a chiropractor or another specialist can help”; (2) “[Depending on the problem, I’d suggest a consultation with a chiropractor”; and (3) “[chiropractic treatment helped my] wife 75%,” are prime examples of testimonials that are neither misleading nor deceptive.

Because we conclude that the testimonials in the booklet are not inherently misleading, we further conclude that the booklet constitutes protected speech under the first amendment.

In so concluding, we note that Ardt v. Illinois Department of Professional Regulation, 154 Ill. 2d 138, 607 N.E.2d 1226 (1992), does not require a different result. In that case, the Department disciplined a dentist, in part, on the ground that he violated section 45 of the Illinois Dental Practice Act, which prohibits claims of superior quality of care (Ill. Rev. Stat. 1987, ch. 111, par. 2345(h)(1) (now 225 ILCS 25/ 45(h)(1) (West 1998))). Ardt, 154 Ill. 2d at 141, 607 N.E.2d at 1227-28. The dentist responded that the provision contravened his first amendment right to free speech. Ardt, 154 Ill. 2d at 151, 607 N.E.2d at 1232. The dentist’s ads represented, in pertinent part, that he provided “quality dentistry.” The supreme court concluded that the phrase “quality dentistry” implied superior quality, was inherently misleading, and thus could be prohibited by the State. Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233.

Even assuming that the supreme court would still adhere to its view that a “quality dentistry” advertisement is inherently misleading (for a cogent discussion regarding why such an advertisement is not inherently misleading, see Ardt, 154 Ill. 2d at 158-60, 607 N.E.2d at 1235-36 (Heiple, J., concurring in part and dissenting in part)), Ardt is inapposite. In that case, the supreme court specifically addressed a challenge to that portion of section 45 of the Illinois Dental Practice Act prohibiting “claims of superior quality of care” (Ill. Rev. Stat., ch. Ill, par. 2345(h)(1) (now 225 ILCS 25/45(h)(l) (West 1998))). Ardt, 154 Ill. 2d at 151-57, 607 N.E.2d at 1232-35. Unlike the present case, the Ardt court did not have before it, and, thus, did not address, any challenge to the portion of section 45 that prohibits the use of testimonials. (Both section 26 of the Act (225 ILCS 60/26(2) (West Supp. 1999)) and section 45 of the Illinois Dental Practice Act (225 ILCS 25/45 (West 1998)) prohibit “testimonials or claims of superior quality of care to entice the public.”)

2. The Second Prong of the Central Hudson Test

The second prong of the Central Hudson test asks whether the asserted governmental interest served by the speech restriction is substantial. Greater New Orleans Broadcasting, 527 U.S. at 185, 144 L. Ed. 2d at 175, 119 S. Ct. at 1931.

Defendants contend that the State has “a substantial interest in restricting physicians’ commercial speech to that which is not misleading” and which is helpful and informative to the potential consumer. We agree.

The State has a substantial interest in regulating the medical profession. Desnick, 171 Ill. 2d at 528, 665 N.E.2d at 1356. Our supreme court has also recognized that “the State has a very real and compelling interest in restricting the advertising of health-care services to those which are truthful, informative[,] and helpful to the potential consumer in making an intelligent decision.” Talsky v. Department of Registration & Education, 68 Ill. 2d 579, 591, 370 N.E.2d 173, 179 (1977). Accordingly, we conclude that defendants have satisfied the second prong of Central Hudson.

3. The Third and Fourth Prongs of the Central Hudson Test

The third prong of the Central Hudson test asks whether the speech restriction directly and materially advances the asserted governmental interest. Greater New Orleans Broadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. “This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 761, 770-71, 123 L. Ed. 2d 543, 555, 113 S. Ct. 1792, 1800 (1993). Consequently, “the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose.” Central Hudson, 447 U.S. at 564, 65 L. Ed. 2d at 350, 100 S. Ct. at 2350. The Supreme Court has stressed that “this requirement [is] critical; otherwise, ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.’ ” Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 131 L. Ed. 2d 532, 542, 115 S. Ct. 1585, 1592 (1995), quoting Edenfield, 507 U.S. at 771, 123 L. Ed. 2d at 555, 113 S. Ct. at 1800.

The fourth prong of the Central Hudson test complements the direct-advancement inquiry of the third part, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it. Greater New Orleans Broadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. The government is not required to employ the least restrictive means conceivable, but the challenged regulation must be narrowly tailored such that the regulation and the asserted interest demonstrate “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope ‘is in proportion to the interest served.’ ” Fox, 492 U.S. at 480, 106 L. Ed. 2d at 404, 109 S. Ct. at 3035, quoting In re R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937.

Defendants baldly assert that (1) the restriction “protects the public from deceptive commercial speech” and “from being misled by any claims of beneficial results”; (2) section 26 “is limited in scope and prohibits only a discrete [form] of advertising that is inherently misleading”; and (3) the restriction is “narrowly drawn to advance Illinois’ substantial interest in restricting the advertising of health[-] care services to that which is informative and helpful to the potential consumer in making an intelligent decision.”

The record before us contains no anecdotal accounts of actual harm to potential consumers of chiropractic who were misled or deceived by the booklet’s testimonials. In addition, defendants do not point to any studies or empirical evidence suggesting that the testimonials in the booklet, or any other types of testimonials, mislead or deceive potential consumers. Defendants correctly point out that speech restrictions have been upheld on “commonsense links” between the harms the State seeks to prevent and the State’s speech restriction. See Desnick, 171 Ill. 2d at 533, 665 N.E.2d at 1359 (noting that the Supreme Court has upheld speech restrictions on such commonsense links and listing those cases). However, we fail to see any commonsense link between a categorical ban on testimonials, which, as we earlier concluded, are not inherently misleading, and the purported harms the State seeks to prevent. In our judgment, such an outright ban does not directly and materially advance the State’s substantial interests. See R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937 (the State may not absolutely prohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive).

In addition, we conclude that section 26, by banning testimonials outright, sacrifices an intolerable amount of truthful speech about lawful conduct. We further conclude that the complete ban on testimonials is not in proportion to the State’s admittedly important interests and is unnecessarily and disproportionately broad in the scope of communication it prohibits. See Ardt, 154 Ill. 2d at 152, 607 N.E.2d at 1232 (holding that categorical ban of the phrase “family dentistry” was an unconstitutional abridgement of free speech because the phrase was only potentially misleading); see also Bailey v. Morales, 190 E3d 320, 324-25 (5th Cir. 1999) (holding unconstitutional a Texas law prohibiting chiropractors from soliciting as patients individuals with a special need for chiropractic services arising out of an accident or preexisting condition, in part, because the law was not reasonably tailored to the harm the State sought to prevent). In sum, if a testimonial is not misleading, not false, and not deceptive, then a governmental ban of it falls afoul of the first amendment.

For all of the above reasons, we hold that by prohibiting Snell’s use of the booklet, section 26 of the Act violates Snell’s first amendment right to free speech. Accordingly, we reverse the circuit court’s decision upholding the Department’s decision.

III. CONCLUSION

For the reasons stated, we reverse the circuit court’s decision.

Reversed.

MYERSCOUGH, J., concurs.