440 U.S. 1 (1979), 77-1163, Friedman et al. v. Rogers et al.

Docket Nº:No. 77-1163
Citation:440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100
Party Name:Friedman et al. v. Rogers et al.
Case Date:February 21, 1979
Court:United States Supreme Court
 
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440 U.S. 1 (1979)

99 S.Ct. 887, 59 L.Ed.2d 100

Friedman et al.

v.

Rogers et al.

No. 77-1163

United States Supreme Court

Feb. 21, 1979

Argued November 8, 1978

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

Syllabus

Section 5.13(d) of the Texas Optometry Act prohibits the practice of optometry under a trade name, and § 2.02 requires that four of the six members of the Texas Optometry Board, which regulates the practice of optometry in the State, be members of the Texas Optometric Association (TOA), a professional organization of optometrists. Rogers, a Board member but ineligible for membership in TOA because of noncompliance with the code of ethics required for membership, brought an action challenging the constitutionality of these provisions. A three-judge District Court held that § 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause of the Fourteenth Amendment, but that § 5.13(d) is an unconstitutional restriction of the "free flow of commercial information" under the First Amendment. Held:

1. Section 5.13(d) is constitutional. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, and Bates v. State Bar of Arizona, 433 U.S. 350, distinguished. Pp. 8-16.

(a) The use of a trade name in connection with optometrical practice conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time

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by associations formed in the minds of the public between the name and some standard of price or quality. Because these ill-defined associations of trade names with price and quality information can be manipulated by the users.of trade names, there is a significant possibility that trade names will be used to mislead the public. Pp. 11-13.

(b) The State's interest in protecting the public from such deceptive and misleading use of optometrical trade names is substantial and well demonstrated in this case, and the prohibition against the use of trade names is a constitutionally permissible regulation in furtherance of this interest. Rather than stifling commercial speech, such prohibition ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past. Pp. 13-16.

2. Section 2.02 is also constitutional. Pp. 17-19.

(a) The history of the Texas Optometry Act shows that such provision is related reasonably to the State's legitimate purpose of securing a regulatory board that will administer the Act faithfully. Pp. 17-18.

(b) While Rogers has a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Texas Optometry Board, his challenge to the fairness of the Board does not arise from any disciplinary proceeding against him. Gibson v. Berryhill, 411 U.S. 564, and Wall v. American Optometric Assn., 379 F.Supp. 175 (ND Ga.), summarily aff'd sub nom. Wall v. Hardwick, 419 U.S. 888, distinguished. Pp. 18-19.

438 F.Supp. 428, affirmed in part and reversed and remanded in part.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined, and in Part III of which MARSHALL and BLACKMUN, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post p. 19.

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POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

Texas law prohibits the practice of optometry under a trade name. It also requires [99 S.Ct. 891] that four of the six members of the State's regulatory board, the Texas Optometry Board, be members of the Texas Optometric Association, a professional organization of optometrists. A three-judge District Court sustained the constitutionality of the statute governing the composition of the Texas Optometry Board against a challenge based on the First and Fourteenth Amendments. But it held that the prohibition of the practice of optometry under a trade name ran afoul of First Amendment protection of commercial speech. 438 F.Supp. 428 (ED Tex.1977). These appeals and the cross-appeal bring both of the District Court's holdings before the Court.1

I

The Texas Legislature approved the Texas Optometry Act (Act) in 1969, repealing an earlier law governing the practice of optometry in the State. Section 2.01 of the Act establishes the Texas Optometry Board (Board) and § 2.02 prescribes the qualifications for Board members.2 The Board

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is responsible for the administration of the Act, and has the authority to grant, renew, suspend, and revoke licenses to practice optometry in the State.3 The Act imposes numerous regulations on the practice of optometry,4 and on several aspects of the business of optometry.5 Many of the Act's business regulations are contained in § 5.13, which restricts fee-splitting by optometrists and forbids an optometrist to allow his name to be associated with any optometrical office

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unless he is present and practicing there at least half of the hours that the office is open or half of the hours that he practices, whichever is less. Section 5.13(d), at issue here, prohibits the practice of optometry under an assumed name, trade name, or corporate name.6

The [99 S.Ct. 892] dispute in this case grows out of the schism between "professional" and "commercial" optometrists in Texas. Although all optometrists in the State must meet the same licensing requirements and are subject to the same laws regulating their practices, they have divided themselves informally into two groups according to their divergent approaches to the practice of optometry.7 Rogers, an advocate of the commercial

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practice of optometry and a member of the Board, commenced this action by filing a suit against the other five members of the Board. He sought declaratory and injunctive relief from the enforcement of § 2.02 of the Act, prescribing the composition of the Board, and § 5.13(d) of the Act, prohibiting the practice of optometry under a trade name.

Section 2.02 of the Act requires that four of the six members of the Board must be members of a state organization affiliated with the American Optometric Association (AOA). The only such organization is the Texas Optometric Association (TOA), membership in which is restricted to optometrists who comply with the Code of Ethics of the AOA. Rogers and his fellow commercial optometrists are ineligible for membership in TOA because their business methods are at odds with the AOA Code of Ethics. In his complaint, Rogers alleged that he is deprived of equal protection and due process because he is eligible for only two of the six seats on the Board, and because he is subject to regulation by a Board composed primarily of members of the professional faction. Regarding § 5.13(d), Rogers alleged that while the section prohibits optometrists from practicing under trade names, the prohibition is not extended to ophthalmologists. Rogers claimed that this disparity of treatment denies him the equal protection of the laws, as he is denied the right to conduct his optometrical practice as he has in the past under the name "Texas State Optical."

The three-judge District Court that was convened to consider Rogers' challenge to the constitutionality of the Texas law granted two motions to intervene. The TOA intervened as a defendant, adopting without alteration the position taken by the individual members of the Board whom Rogers originally named as defendants. The Texas Senior Citizens

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Association (TSCA) intervened on behalf of Rogers. This intervenor claimed that its members have a Fourteenth Amendment right to representation of the general public on the Board, and that, because § 2.02 subjects "commercial" optometrists to regulation by "professional" optometrists, the statute discourages optometrists from communicating truthful commercial information to TSCA members. The TSCA also urged that the prohibition of the practice of optometry under a trade name violates the First Amendment [99 S.Ct. 893] right of its members to receive information about the availability of optometrical services.

The District Court found that § 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act, and therefore constitutional under the Equal Protection Clause. As to the claim that a Board dominated by professional optometrists would treat commercial optometrists unfairly, the District Court held that any claim that non-TOA members did not receive due process when called before the Board could be settled when and if the problem arose.8 Concluding that the proffered justifications for § 5.13(d) were outweighed by the importance of the commercial speech in question, the District Court held § 5.13(d) unconstitutional, and enjoined its enforcement by the Board.

In No. 77-1164, Rogers and the TSCA appeal from the District Court's decision upholding the constitutionality of § 2.02. In Nos. 77-1163 and 77-1186, the members of the Board other than Rogers, and the TOA, respectively, appeal from the decision striking down § 5.13(d) as unconstitutional. We noted probable jurisdiction, 435 U.S. 7, and now arm the decision in No. 77-1164 and reverse in Nos. 77-1163 and 77-1186.

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II

In holding that § 5.13(d) infringes First Amendment rights, the District Court relied primarily on this Court's decisions in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). A trade name is a form of advertising, it concluded, because after the name has been used for some time, people "identify the name with a certain quality of service and goods." It found specifically

that the Texas State Optical [TSO] name has...

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