Talsky v. Department of Registration and Ed., 48997

• Decision Date: 05 October 1977
• Docket Number: No. 48997,48997
• Court: Illinois Supreme Court
• Parties: , 12 Ill.Dec. 550, 3 Media L. Rep. 1315 Richard J. TALSKY, Appellee, v. The DEPARTMENT OF REGISTRATION AND EDUCATION et al. Appeal of The DEPARTMENT OF REGISTRATION AND EDUCATION.

Page 173

370 N.E.2d 173

68 Ill.2d 579, 12 Ill.Dec. 550, 3

Media L. Rep. 1315

Richard J. TALSKY, Appellee, v. The DEPARTMENT OF REGISTRATION AND EDUCATION et al.

Appeal of The DEPARTMENT OF REGISTRATION AND EDUCATION.

No. 48997.

Supreme Court of Illinois.

Oct. 5, 1977.

Rehearing Denied Nov. 23, 1977.

William J. Scott, Atty. Gen., of Chicago (Charles J. Pesek, Asst. Atty. Gen., of counsel), for appellant.

Singer, Stein & Green, Chicago, for appellee.

UNDERWOOD, Justice.

Plaintiff, Richard J. Talsky, filed an action in the circuit court of Cook County for administrative review of an order issued by the defendant Ronald E. Stackler, Director of the Department of Registration and Education, suspending plaintiff's license to practice as a chiropractor for 90 days on the grounds that he had engaged in advertising to solicit professional business in violation of subsections 4 and 13 of section 16 of the Medical Practice Act (Ill.Rev.Stat.1971, ch. 91, pars. 16a(4), 16a(13)). The suspension was stayed by the circuit court pending administrative review. On review, the circuit court reversed the Department's decision on the basis that the restrictions on advertising contained in section 16(13) of the Medical Practice Act were overly broad and impermissibly restricted freedom of speech in contravention of the first amendment to the United States Constitution. The Department appeals directly to this court pursuant to our Rule 302(a). 58 Ill.2d R. 302(a).

At the conclusion of an administrative hearing before the Medical Examining Committee of the Department of Registration and Education, the plaintiff was found to have violated section 16(4) of the Medical Practice Act for "(e) ngaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public" as well as section 16(13) of the Act, which prohibits advertising. It was the latter section which the circuit court held unconstitutional, and our review is accordingly limited to a consideration of that section, which provided for revocation or suspension of plaintiff's license on the following grounds:

"13. Except as otherwise provided in Section 16.01, advertising or soliciting, by himself or through another, by means of handbills, posters, circulars, steropticon slides, motion pictures, radio, newspapers or in any other manner for professional business." Ill.Rev.Stat.1971, ch. 91, par. 16a(13).

The exceptions to the advertising ban are described as follows in section 16.01:

"Any person licensed under this Act may list his name, title, office hours, address, telephone number and any specialty in professional and telephone directories; may announce, by way of a professional card not larger than 3 1/2 inches by 2 inches, only his name, title, degree, office location, office hours, phone number, residence address and phone number and any specialty; may list his name, title, address and telephone number and any specialty in public print limited to the number of lines necessary to state that information; may announce his change of place of business, absence from, or return to business in the same manner; or may issue appointment cards to his patients, when the information thereon is limited to the time and place of appointment and that information permitted on the professional card. Listings in public print, in professional and telephone directories, or announcements of change of place of business, absence from, or return to business, may not be made in bold faced type." Ill.Rev.Stat.1971, ch. 91, par. 16a-1.

The facts are not in substantial dispute. On August 30, 1972, plaintiff caused to be published in the "Berwyn Life" newspaper the one-half-page advertisement which is reproduced in appendix 1 to this opinion. Copies of the advertisement were also affixed to a substantial portion of the exterior window of the plaintiff's office in Cicero. As can be seen, the ads offered "FREE CHICKEN," "FREE REFRESHMENTS" and "FREE SPINAL X-RAY," and contained a section condemning reliance on drugs while extolling the virtues of the drugless chiropractic profession. On about August 13, 1974, plaintiff, individually or through another, attached advertising circulars similar to the ones reproduced in appendix 2 to certain traffic-light posts, a traffic-control box, and a United States mailbox located at the intersection of 57th Avenue and Cermak Road in Cicero, together with other circulars which identified the location of the Talsky chiropractic offices in the Chicago area. These circulars remained at that location until the end of September 1974. Plaintiff also attached circulars of the same type to the exterior of his office window in Cicero in addition to business cards which would be torn off and removed by passersby. The cards contained the words "Chiropractic TLC Office," plaintiff's name, address and telephone number with the words "Talsky Life Center" and "Tender Loving Care" appearing in small hearts.

It is apparent that we are here concerned with the extent to which the State may exercise its police power to restrict advertising by members of the health-related professions without impermissibly infringing upon those members' first amendment rights to freedom of speech. In order to place the questions involved in this appeal in their proper context, it is appropriate to trace the development of these concepts in the decisions of the United States Supreme Court and this court.

In Semler v. Oregon State Board of Dental Examiners (1935), 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086, the court considered a statute which prohibited dentists from advertising their professional superiority and their prices; from using certain types of advertising displays; from employing solicitors or publicity agents; and from advertising free dental work, free examinations, guaranteed work or painless dental operations. The question before the court was whether the restrictions were arbitrary and invalid under the due process clause of the fourteenth amendment. In upholding the validity of the regulation, the court stated "The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. * * *

* * * The legislature was entitled to consider the general effects of the practices which it described, and if these effects were injurious in facilitating unwarranted and misleading claims, to counteract them by a general rule even though in particular instances there might be no actual deception or misstatement." (294 U.S. 608, 612-13, 55 S.Ct. 570, 572, 79 L.Ed. 1086, 1090.)

The rationale of the Semler decision was adopted by this court in a number of cases upholding the right of the State to regulate advertising by those engaged in medical and related professions. (E. g., Winberry v. Hallihan (1935), 361 Ill. 121, 197 N.E. 552; People v. Dubin (1937), 367 Ill. 229, 10 N.E.2d 809; Lasdon v. Hallihan (1941), 377 Ill. 187, 36 N.E.2d 227; Klein v. Department of Registration and Education (1952), 412 Ill. 75, 105 N.E.2d 758; People ex rel. Chicago Dental Society v. A.A.A. Dental Laboratories, Inc. (1956), 8 Ill.2d 330, 134 N.E.2d 285; Cordak v. Reuben H. Donnelley Corp. (1960), 20 Ill.2d 153, 169 N.E.2d 321.) In Lasdon, it was observed: "In the exercise of police power the practice of the professions has been subjected to licensing and regulation for the reason that the services customarily rendered by those engaged in such professions are so closely related to the public health, welfare and general good of the people, that regulation is deemed necessary to protect such interests. It has been held a proper exercise of police power to legislate and protect the professions performing such services against commercialization and exploitation." (377 Ill. 187, 193, 36 N.E.2d 227, 230.) In upholding the statute which prohibited advertising by those engaged in the business of making dental plates, we further stated in that case: "It is well known that masses of the public do not comprehend or understand the skill that is necessary to the making of proper dentures and the proper charges to be made for such services. Such persons are often attracted by the advertisements of the quack and charletan and seek his services." 377 Ill. 187, 195, 36 N.E.2d 227, 231.

The foregoing cases were decided primarily on due process grounds and were not concerned with first amendment questions. (But see Cordak v. Reuben H. Donnelley Corp. (1960), 20 Ill.2d 153, 157, 169 N.E.2d 321.) This undoubtedly resulted from the fact that at the time those cases were decided the advertising of products and services was considered "purely commercial" speech which the United States Supreme Court had held was not entitled to first amendment protection. (Valentine v. Chrestensen (1942), 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262, 1265.) The viability of the "commercial speech" exception to first amendment protection as enunciated in Valentine was seriously questioned by the court in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973), 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669, and was subsequently terminated in Bigelow v. Virginia (1975), 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, and Bates v. State Bar (1977), --- U.S. ----, 97 S.Ct. 2691, 53 L.Ed.2d 810. The latter two decisions, while not precisely on point, are highly significant in any...