Supreme Court refuses to probe restrictions on dentist ads

By The Associated Press

12.10.02

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WASHINGTON — A divided Supreme Court declined yesterday to jump into a free-speech dispute over advertising restrictions Florida puts on dentists who want to promote their specialties.

Justices Clarence Thomas and Ruth Bader Ginsburg said they were troubled by Florida's law. They said the Court should clarify how far states can go in limiting ads of lawyers, doctors and other professionals.

But none of the other justices joined them; at least four must agree before the Court will hear a case.

Dr. Richard Borgner, a dentist in St. Petersburg, Fla., attended 400 hours of classes on implant dentistry, passed multiple exams and was certified by the American Academy of Implant Dentistry, an association of about 2,200 dentists.

Under a 3-year-old Florida law, any ad listing Borgner's certification also must say in capital or bold letters that the academy is not a "bona fide" organization according to the Florida Dental Board.

The law applies to several dental specialties, including cosmetic dentistry, with professional associations that are not accredited by the American Dental Association.

Jeffrey S. Sutton, the dentist's attorney, says the boards are legitimate and it's wrong to infer otherwise.

The last time the Supreme Court took up the issue of disclaimers in ads, it ruled that Florida could not bar lawyers from advertising that they also were licensed as certified public accountants.

Since that decision, other "courts continue to treat the advertisement of professional credentials as a form of second-class speech," Sutton told justices in court papers.

The case offered the Court a chance to give more protection to commercial speech, which is covered by the First Amendment unless it is false or misleading. The Court has said before that the government can limit commercial speech that is not misleading only if there's a substantial interest in doing so and the restrictions will correct problems.

Justices Thomas and Ginsburg said Florida's law would make residents more confused by ads.

"This case presents an excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment of commercial speech," Thomas wrote.

Attorney Barry Richard, representing the Florida Board of Dentistry, said in court papers the board wants to ensure that people know that a specialty status promoted in an ad is not endorsed by the state. He said surveys taken in Florida showed that ads without disclaimers could be misleading.

The case is Borgner v. Florida Board of Dentistry, 02-165.

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