Gandee v. Glaser

• Decision Date: 24 February 1992
• Docket Number: No. C-2-88-753.,C-2-88-753.
• Citation: 785 F. Supp. 684
• Parties: Robert J. GANDEE, Terry R. Seese, Plaintiffs, v. Robert G. GLASER, Margaret M. Robert, Valenta G. Ward-Gravely, Olive M. Webster, Cathy C. Trent, Ohio Attorney General, Defendants.
• Court: U.S. District Court — Southern District of Ohio

785 F. Supp. 684

Robert J. GANDEE, Terry R. Seese, Plaintiffs, v. Robert G. GLASER, Margaret M. Robert, Valenta G. Ward-Gravely, Olive M. Webster, Cathy C. Trent, Ohio Attorney General, Defendants.

No. C-2-88-753.

United States District Court, S.D. Ohio, E.D.

February 24, 1992.

E. Joel Wesp, Wesp and Osterkamp, Columbus, Ohio, for plaintiffs.

John C. Dowling, Susan C. Walker, Asst. Ohio Attys. Gen., Columbus, Ohio, for defendants.

Neil I. Levy, Neal Goldfarb, Melrod, Redman & Gartlan, Washington, D.C., for amicus curiae American Speech-Language-Hearing Ass'n.

OPINION AND ORDER

KINNEARY, Senior District Judge.

This matter comes before the Court for a decision upon the briefs of the parties and a stipulated record. The Plaintiffs in this action, two licensed hearing aid fitters and dealers, challenge Ohio's licensing scheme which prevents individuals from using certain professional titles or descriptions unless such individuals are licensed as audiologists pursuant to Ohio Revised Code 4753. Initially, however, the Court will consider the objection of the American Speech-Language-Hearing Association ("Association") to the Magistrate Judge's decision granting the Association leave to file a memorandum as amicus curiae but refusing it the right to offer evidence not of record.

I. OBJECTION TO MAGISTRATE JUDGE'S ORDER

A Magistrate Judge's decision on a non-dispositive matter will be reversed only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R.Civ.P. 72(a). The "clearly erroneous" standard applies only to factual findings made by the Magistrate Judge, while her legal conclusions will be reviewed under the more lenient "contrary to law" standard. See Fogel v. Chestnutt, 668 F.2d 100, 116 (2d Cir.1981), cert. denied sub nom. Currier v. Fogel, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982); Jernryd v. Nilsson, 117 F.R.D. 416, 417 (N.D.Ill.1987). This Court's review under the "contrary to law" standard is "plenary," Jernryd, 117 F.R.D. at 417, and it "may overturn any conclusions of law which contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent." Adolph Coors Co. v. Wallace, 570 F.Supp. 202, 205 (N.D.Cal.1983). Thus, this Court must exercise its independent judgment with respect to a Magistrate Judge's legal conclusions. See Hawkins v. Ohio Bell Tel. Co., 93 F.R.D. 547, 551 (S.D.Ohio 1982), aff'd without op., 785 F.2d 308 (6th Cir.1986); United States for Use and Benefit of Naberhaus-Burke v. Butt & Head, Inc., 535 F.Supp. 1155 (S.D.Ohio 1982).

The Magistrate Judge in this case excluded the Association's exhibits attached to its amicus brief because the Association did not participate in pretrial discovery. The Court is convinced that this decision is neither "clearly erroneous" nor "contrary to law" and must stand.

Because the privilege of being heard amicus rests solely within the discretion of the court, Leigh v. Engle, 535 F.Supp. 418, 420 (N.D.Ill.1982), it necessarily follows that the scope of the amicus' participation must also be discretionary. While it is true that "courts have exercised great liberality in permitting an amicus curiae to file a brief in a pending case, and, with further permission of the court, to argue the case and introduce evidence," United States v. Louisiana, 751 F.Supp. 608, 620 (E.D.La.1990), this Court is convinced that the Association ought not be allowed to enter evidence into the record at this stage of the litigation. Discovery has long been closed, and all parties' trial briefs have been submitted for a number of months. Any new evidence would remain unrebutted, and therefore, possibly prejudicial to the Plaintiffs. Were this Court uncomfortable with the adequacy of the state's defense of its statute, the equities of the situation might appear different. However, the Court is convinced that both parties have fully and ably presented their positions, thus rendering the Association's evidence not only prejudicial, but redundant. Thus, the Memorandum of the American Speech-Language-Hearing Association, as amicus curiae, is hereby submitted into the record without its attached Appendix.

II. THE MERITS OF PLAINTIFFS' CASE

Turning to the merits of the case, the Plaintiffs are two hearing aid dealers and fitters licensed under Chapter 4747 of the Ohio Revised Code. The Defendants include present and past members of the Ohio Board of Speech Pathology and Audiology ("Audiology Board"), a state board created under Chapter 4753 of the Ohio Revised Code to regulate and govern the practice and profession of audiology. The Plaintiffs allege that the Defendants, by refusing to allow the Plaintiffs to use certain titles and descriptions of services, and through the use of arbitrary and discriminatory investigations, have violated their First Amendment right to freedom of speech, their Fourteenth Amendment right to due process and equal protection of the laws, and their "civil rights" under 42 U.S.C. § 1983. The Plaintiffs request that this Court declare Ohio Rev.Code § 4753.02, both facially and as applied, and the actions of the Defendants, unconstitutional. Further, they request that this Court enjoin the Defendants from taking any further action against the Plaintiffs or conducting any further investigations into the activities of the Plaintiffs or any other hearing aid dealers for purported violations of Chapter 4753.

A. The First Amendment Claim

The First Amendment to the United States Constitution, as applied to the states by operation of the Fourteenth Amendment, provides that Congress (and the states) shall make no law abridging freedom of speech. It is now well-established that commercial speech — speech that does no more than propose a commercial transaction — is entitled to only limited protection under the First Amendment. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983); Friedman v. Rogers, 440 U.S. 1, 9-10 & n. 9, 99 S.Ct. 887, 894 & n. 9, 59 L.Ed.2d 100 (1979); Ohralik v. Ohio State Bar Assoc., 436 U.S. 447, 456-57, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978). Thus, a state may prohibit commercial speech that is false or misleading, and may require that potentially misleading commercial speech be accompanied by disclaimers and disclosures in order to prevent consumers from being deceived. Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91, 110 S.Ct. 2281, 2284, 110 L.Ed.2d 83 (1990) (opinion of Stevens, J., joined by Brennan, Blackmun & Kennedy, JJ.); id. at 111, 110 S.Ct. at 2293 (opinion of Marshall, J., joined by Brennan, J.); id. at 119, 110 S.Ct. at 2297 (opinion of O'Connor, J., joined by Rehnquist, C.J. & Scalia, J.); In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) ("Truthful advertising related to lawful activities is entitled to the protection of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions."); Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980) ("There can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it."); Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977). Thus, the Court is presented with two issues: whether the speech at issue in this case is commercial speech, and if so, whether it is false, deceptive, or misleading.¹ The Court will consider each of these in turn.

The Supreme Court has recognized that there exists a "`common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Central Hudson, 447 U.S. at 562, 100 S.Ct. at 2349. Yet, commercial speech, or that which is "related solely to the economic interests of the speaker and its audience," id. at 561, 100 S.Ct. at 2349, receives at least some level of First Amendment protection since it not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interests in the fullest possible dissemination of information. Id. at 561-62, 100 S.Ct. at 2349.

The issue before the Court is whether the restrictions embodied in Chapter 4753 of the Ohio Revised Code involve commercial or non-commercial speech. Section 4753.02 provides that:

No person shall practice or offer to practice the profession of speech pathology or audiology, or use in connection with his name, or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a speech pathologist or audiologist unless the person is licensed under this chapter.

Section 4753.01(C) defines an audiologist as a:

"person who practices audiology and who offers such services to the general public under any title or description of services incorporating the words `audiology,' `audiologist,' `hearing clinic,' `hearing clinician,' `hearing therapy,' `hearing therapist,' `audiometry,' `audiometrist,' or any similar titles or descriptions of services."

Pursuant to these provisions, the Audiology Board investigated, and subsequently objected to, the Plaintiffs' use of the term "Certified Hearing Aid Audiologist." The objection came in the form of a formal cease and desist letter mailed to various hearing aid fitters and dealers in Ohio, including one of the Plaintiffs in this action.

While the Plaintiffs attempt to characterize the speech at issue in this case as "pure speech," the Court is convinced otherwise. From the record available to the Court, it is apparent that the...