Rogers v. Friedman

• Decision Date: 12 September 1977
• Docket Number: No. B-75-277-CA.,B-75-277-CA.
• Citation: 438 F. Supp. 428
• Parties: Dr. N. Jay ROGERS, Plaintiff, W. J. Dickinson, Individually and as President of the Texas Senior Citizens Association, Port Arthur, Texas Chapter, Intervenor, v. Dr. E. Richard FRIEDMAN, Dr. John B. Bowen, Dr. Hugh A. Sticksel, Jr., Dr. John W. Davis, Dr. Sal Mora, Defendants, Texas Optometric Association, Inc., Intervenor.
• Court: U.S. District Court — Eastern District of Texas

438 F. Supp. 428

Dr. N. Jay ROGERS, Plaintiff, W. J. Dickinson, Individually and as President of the Texas Senior Citizens Association, Port Arthur, Texas Chapter, Intervenor, v. Dr. E. Richard FRIEDMAN, Dr. John B. Bowen, Dr. Hugh A. Sticksel, Jr., Dr. John W. Davis, Dr. Sal Mora, Defendants, Texas Optometric Association, Inc., Intervenor.

No. B-75-277-CA.

United States District Court, E. D. Texas, Beaumont Division.

September 12, 1977.

Robert Q. Keith, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for plaintiff.

John G. Tucker, Orgain, Bell & Tucker, Beaumont, Tex., for defendants in their individual capacities.

Joe R. Greenhill, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, Tex., for defendants, Texas Optometry Bd.

Larry Niemann, Niemann & Niemann, Austin, Tex., for the Texas Optometric Ass'n, Inc.

Brian R. Davis, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for intervenor, Texas Senior Citizens Ass'n of Port Arthur, Texas et al.

James B. Wesley, Houston, Tex., for intervenors, R. E. Hughes, O. D., et al.

Stephen L. Burkett, Burkett & Burkett, Inc., Corpus Christi, Tex., for Texas State Optical of Parkdale Plaza, Corpus Christi, Tex.

John L. Hill, Atty. Gen., State of Texas, Austin, Tex., for the State of Texas.

Before GOLDBERG, Circuit Judge, and FISHER and STEGER, District Judges.

MEMORANDUM OPINION

By this civil action, filed pursuant to, inter alia, 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2281, et. seq., Plaintiffs seek to enjoin on constitutional grounds enforcement of provisions of the Texas Optometry Act, Tex.Rev.Civ.Stat.Ann. art. 4552-1.01, et. seq., by the Texas Optometry Board ("Board"). More specifically, Plaintiffs assert the following are violative of their constitutional rights under the first and fourteenth amendments: (1) the prohibition against price advertising, Vernon's Ann.Civ. Stat. art. 4552-5.09(a); (2) the mandatory colloquy between the optometrist and his patient regarding referral to an optician, Vernon's Ann.Civ.Stat. art. 4552-5.15(e); (3) the composition of the Board, Vernon's Ann.Civ.Stat. art. 4552-2.02; and (4) the forbiddance of practice under a trade name, Vernon's Ann.Civ.Stat. art. 4552-5.13(d).

Vernon's Ann.Civ.Stat. art. 4552-5.09(a) provides in pertinent part that "no optometrist shall publish or display . . any statement or advertisement of any price offered or charged by him for any ophthalmic services or materials . .." The recent decision of the Supreme Court in Bates v. State Bar of Arizona, ___ U.S. ___, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), makes it clear, however, that any blanket suppression of truthful price advertising is a violation of the right of commercial free speech. The Court therefore holds that art. 4552-5.09(a) is violative of the First Amendment.

The Texas Optometry Act further provides that "no optometrist shall practice . . . optometry under, or use in connection with his practice of optometry, any . . . trade name . . . other than the name under which he is licensed to practice optometry in Texas . . .." Vernon's Ann.Civ.Stat. art 4552-5.13(d). As noted above, Plaintiffs have asserted that this article infringes on their constitutional rights. More particularly, they allege that it transgresses on their right to commercial free speech under the first amendment.¹ In deciding a first amendment question, the Court's function is to balance competing interests. That is, it must weigh the purported justifications for the restriction in question against its deprivation of first amendment rights and the subsequent harm, if any. See generally Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

In the instant case, Defendants assert that in the first amendment balancing test, any possible harm to the public is far outweighed by (1) the dangers to the doctor/patient relationship, (2) the deterioration of the quality of eye care, (3) the practical "concealment" of the optometrists' identity, and (4) the potential for deception and misrepresentation inherent in an assumed name practice. Based on the evidence and briefs before this Court, the Court finds Defendants' assertions unpersuasive. Although the Defendants rely extensively on supportive language contained in the decision of the Texas Supreme Court in Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (1967), this Court notes (1) the question before the Texas Court in Carp was not constitutional but whether the Texas board had exceeded its delegated power from the Legislature, (2) the names whose use were in question were those of licensed optometrists who sold Carp their locations, and (3) the Carp decision was rendered well before the recent Supreme Court pronouncements in Va. Pharmacy Bd. v. Va. Consumer Council, supra, and Bates v. State Bar of Arizona, supra.

In both the Bates and Virginia Pharmacy decision, in the process of striking down blanket suppression of truthful advertising, the Supreme Court addressed at great length the importance of commercial free speech in society. The Court declared in Bates that "the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Bates v. State Bar of Arizona, supra, ___ U.S. at ___, 97 S.Ct. at 2699. Further, that "commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system." Ibid. In Virginia Pharmacy, supra 425 U.S. at 765, 96 S.Ct. at 1827, the Court stated

So long as we preserve a predominantly free enterprise economy, the allocation of our resources . . . will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.

There are two closely related arguments in the instant case for the inclusion of trade names within the protected first amendment right of commercial free speech. The Court finds both persuasive. The first is that a "trade name" is encompassed within the meaning of advertising and thereby comes under the auspices of the first amendment protection recently granted to advertising by professional people. Therefore, it is argued that any blanket suppression of such commercial speech is unconstitutional. See Bates v. State Bar of Arizona, supra.

The argument for inclusion of trade names within the protective fold of advertising, is generally as follows: trade names, a common law right developed by virtue of being in business, grow as a result of the fact that people identify the name with a certain quality of service and goods, the end result being that eventually the name itself calls public attention to the product.

The second argument is that, even if a trade name is not an integral part of advertising per se, there is a first amendment right to the use of a trade name as part of the consuming public's right to valuable information. More specifically, that the Texas State Optical name TSO has come to communicate to the consuming public information as to certain standards of price and quality, and availability of particular routine services.

As stated above, the Court finds both arguments persuasive. Accordingly, this Court, applying the rationale of the advertising cases² to the trade name question, holds that blanket suppression of the use of trade names results in unwarranted restriction of the free flow of commercial information and therefore represents an unconstitutional violation of the first amendment.³

Vernon's Ann.Civ.Stat. art. 4552-5.15(e) requires an optometrist, if he determines a patient needs lenses, to inform the patient (1) that the optometrist will prepare or have the lenses prepared according to the prescription, or (2) that the patient may have the prescription filled by any dispensing optician, not naming any particular optician, but should return for an optometrical examination of the lenses. The article further provides that "if the patient chooses the first alternative, the optometrist may refer the patient to a particular dispensing optician . . .."

Plaintiffs allege that this denies the optometrist the right under the First Amendment to furnish information as to where the patient can have his prescription filled, and that the patient is denied the right to obtain information from his optometrist as to where he can get his lenses made unless he accepts the statutorily required offer by the optometrist. Plaintiffs argue that the optometrist should be allowed to make a referral to a particular optician without the patient first requesting it. In addition, Plaintiffs allege a denial of equal protection because both opthamologists and osteopaths freely refer their patients to particular dispensing opticians. The Court does not find this article violative of Plaintiffs' constitutional rights.

Initially, the Court notes that first and fourteenth amendment rights are not absolute. As the Supreme Court observed in Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105 (1961),

. . . general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, . . .

Evidence of a history of "kickbacks," economic tie-ins, and economic coercion peculiar to the optometric field provides a rational basis for a legitimate legislative purpose in enacting this article. See McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical...