Request By:
Hon. F. Chris Gorman
Miller, Conliffe, Sandmann,
Gorman & Sullivan
Law Offices
621 W. Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Paul E. Reilender, Assistant Attorney General
I am in receipt of your letter regarding the constitutionality of certain provisions of the Optometrist's Statute, KRS 320.200 et seq.
In particular, you ask whether KRS 320.310(1)(m), which grants the power to the Board of Optometry to revoke or suspend any license for displaying any spectacle or eyeglasses in office windows where the display of such material could be viewed from the street, is constitutional. You also ask whether KRS 320.310(1)(t), which deals with the type of sign that an optometrist can use, is constitutional.
The provisions of KRS 320.310 which you question are as follows:
"(1) The board shall have the power to refuse to grant, issue or renew any license to practice optometry for any of the following causes:
(m) Displaying any spectacle, eyeglasses, eyeglass or spectacle frames or mountings, goggles, lenses, prisms, spectacle or eyeglass cases, ophthalmic material of any kind, optometric instruments, or optical tools or machinery, or any merchandise, material, or displays of a commercial nature in office windows or reception rooms or in display cases outside of the office, where the display of such merchandise, material or displays would make it visible from the street;
(t) The display of the name and title of the licensee, in lettering larger than four (4) inches in height for street-level offices, or larger than six (6) inches in height for offices above street level and in no event shall there be more than three (3) such displays, and the illumination of said name and title except during office hours; the use of colored or neon lights, eyeglasses or eye signs, whether painted, neon, decalcomania, or any other medium of display either in the form of eyes or structures resembling eyes, eyeglasses frames, eyeglasses or spectacles, whether lighted or not."
It is beyond cavil that professional advertising is commercial speech and therefore entitled to the protection of the First Amendment. In the case of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the Supreme Court held that lawyer price advertising was a form of commercial speech and therefore was extended the First Amendment protection of commercial speech announced in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).
The Supreme Court in Bates concluded that price advertising was not inherently misleading, and therefore could not be prohibited on that basis. The Supreme Court also rejected other justifications for broad restrictions on advertising including the potential adverse effect of advertising on professionalism, and on the cost and quality of legal services. The Supreme Court found that these interests were not sufficiently strong or sufficiently affected with advertising to justify a prohibition, and so great an interference with speech. Bates, at 2704-2705.
The latest case in the line of Supreme Court decisions dealing with professional advertising is the case of In the Matter of RMJ, U.S., 102 S. Ct. 929, L. Ed. 2d (1982). The United States Supreme Court held in RMJ, that provisions of the Missouri Supreme Court Rule regulating lawyer advertising which prohibited deviating from a precise list of areas of practice, and which prohibited a lawyer from identifying the jurisdictions in which he was licensed to practice, and which further prohibited the mailing of cards announcing the opening of an office to persons other than from a specified group violated the First Amendment.
The Court in RMJ stated that the Court in Bates and in subsequent cases made clear that regulation - and imposition of discipline - are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive. RMJ, at 937. The states definitely have a legitimate interest in controlling such abuses.
The Court in RMJ summarized the commercial speech doctrine in the context of advertising professional services as follows:
"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the states may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. 433 U.S., at 375, 97 S. Ct., at 2704. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception. " (at 937).
The Court went on to state with respect to professional advertising that:
"Even when a communication is not misleading, the state retains some authority to regulate. But the state must assert a substantial interest and the interference with speech must be in proportion to the interest served. Restrictions must be narrowly drawn, and the state lawfully may regulate only to the extent regulation furthers the state's substantial interests. Thus, in Bates, the Court found that the potentially adverse effect of advertising on professionalism and the quality of legal services was not sufficiently related to a substantial state interest to justify so great an interference with speech." ( RMJ, at 937-938). (Citations and footnote omitted).
In summary, the holdings of the recent Supreme Court cases reveal that false, deceptive, or misleading advertising by professionals remains subject to restraint and regulation by the states.
In Kentucky optometrists are given the right to sell eyeglasses in KRS 320.210(2). Given this fact, it is difficult to see how the display of materials, which the optometrist is legally allowed to sell, or which he uses in his business, is inherently false, misleading or deceptive advertising. [The same is also true of the prohibitions contained in KRS 320.310(1)(t). There is nothing inherently false, misleading or deceptive about a sign which contains letters larger than four inches in height, or having more than three such signs, or the use of colored or neon lights, etc.]
Further, the prohibitions contained in KRS 320.310(1)(m) and (t) cannot be justified on the grounds that optometry is a profession and that advertising will lessen professionalism, and will tarnish the professional image of the optometrist. The Supreme Court found in Bates and RMJ that the potentially adverse effect of advertising on professionalism was not sufficiently related to a substantial state interest to justify so great an interference with speech. RMJ at 938.
It is the opinion of this Office, based on the holdings of the above-cited United States Supreme Court cases, that the advertising prohibitions contained in KRS 320.310(1)(m) and (t) are unconstitutional and violative of the First Amendment because there is nothing inherently false, misleading, or deceptive about the prohibited activities.
The writer would also point out that he made an exhaustive search of the optometry statutes in the other jurisdictions. It was found tht among the states which had advertising prohibitions similar or identical to the ones in question in the Kentucky Statute, the prohibitions were repealed or amended to conform with the recent Supreme Court cases dealing with advertising by professionals. To the writer's knowledge, only New Jersey, Delaware and South Dakota have provisions similar to KRS 320.310(1)(m) and (t), which are still in force. However, the state of Delaware, is going to hold a public hearing within the next few weeks to consider changes in the advertising restrictions contained in its optometry statute. Those states having repealed or amended their statutes include: Florida, Virginia, Iowa, Arkansas, Texas, Wisconsin, North Dakota, and Illinois.
Clearly, the national trend, in view of the recent Supreme Court decisions on professional advertising, has been toward doing away with restrictions on advertising that are not in and of themselves false, misleading, or deceptive.