     Case: 16-50157   Document: 00514039074     Page: 1   Date Filed: 06/19/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                         FILED
                                                                      June 19, 2017
                                 No. 16-50157
                                                                      Lyle W. Cayce
                                                                           Clerk

AMERICAN ACADEMY OF IMPLANT DENTISTRY; AMERICAN SOCIETY
OF DENTIST ANESTHESIOLOGISTS; AMERICAN ACADEMY OF ORAL
MEDICINE; AMERICAN ACADEMY OF OROFACIAL PAIN; JAY E.
ELLIOTT, D. D. S.; MONTY BUCK, D. D. S.; JAROM C. HEATON, D. D. S.;
MICHAEL A. HUBER, D. D. S.; EDWARD F. WRIGHT, D. D. S., M. S.,

             Plaintiffs - Appellees

v.

KELLY PARKER, in her official capacity as Executive Director of the Texas
State Board of Dental Examiners, TAMELA L. GOUGH, D. D. S., M. S., in
her official capacity as a Member of the Texas Board of Dental Examiners;
STEVE AUSTIN, D. D. S., in his official capacity as a Member of the Texas
Board of Dental Examiners; TIM O'HARE, in his official capacity as a
Member of the Texas Board of Dental Examiners; KIRBY BUNEL, JR., D. D.
S., in his official capacity as a Member of the Texas Board of Dental
Examiners; WILLIAM R. BIRDWELL, D. D. S., in his official capacity as a
Member of the Texas Board of Dental Examiners; EMILY A. CHRISTY, in
her official capacity as a Member of the Texas Board of Dental Examiners;
JAMES W. CHANCELLOR, D. D. S., in his official capacity as a Member of
the Texas Board of Dental Examiners; RODOLFO G. RAMOS, JR., D. D. S.,
in his official capacity as a Member of the Texas Board of Dental Examiners;
LEWIS WHITE, in his official capacity as a Member of the Texas Board of
Dental Examiners; WHITNEY HYDE, in her official capacity as a Member of
the Texas Board of Dental Examiners; RENEE CORNETT, R. D. H., in her
official capacity as a Member of the Texas Board of Dental Examiners; D.
BRADLEY DEAN, D. D. S., in his official capacity as a Member of the Texas
Board of Dental Examiners; CHRISTIE LEEDY, D. D. S., in her official
capacity as a Member of the Texas Board of Dental Examiners; LOIS
PALERMO, R. D. H., in his official capacity as a Member of the Texas Board
of Dental Examiners; EVANGELIA MOTE, in her official capacity as a
Member of the Texas Board of Dental Examiners,

             Defendants - Appellants
    Case: 16-50157     Document: 00514039074     Page: 2   Date Filed: 06/19/2017



                                  No. 16-50157



                Appeals from the United States District Court
                      for the Western District of Texas


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The plaintiffs challenge a provision in the Texas Administrative Code
regulating advertising in the field of dentistry. The district court held that the
provision violated the plaintiffs’ First Amendment right to engage in
commercial speech.     It therefore enjoined enforcement of the provision as
applied to the plaintiffs. The defendants appealed. We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Texas law prohibits dentists from advertising as specialists in areas that
the American Dental Association (“ADA”) does not recognized as specialties.
See TEX. ADMIN. CODE § 108.54. The plaintiffs seek to enjoin enforcement of
Section 108.54, as they wish to advertise in areas recognized as specialties by
other dental organizations but not by the ADA. They argue the First and
Fourteenth Amendments give them the right to do so.
      This appeal involves several plaintiffs. The organizational plaintiffs
include the American Academy of Implant Dentistry, the American Society of
Dental Anesthesiologists, the American Academy of Oral Medicine, and the
American Academy of Orofacial Pain.          These organizations are national
organizations with member dentists. The purpose of each organization is to
advance the interests of dentists practicing in the organization’s respective
practice area. Each organization sponsors a credentialing board and offers
credentials to members who demonstrate expertise in their respective field.


                                        2
     Case: 16-50157       Document: 00514039074         Page: 3     Date Filed: 06/19/2017



                                      No. 16-50157
       The individual plaintiffs are five dentists, three of whom are in private
practice and two of whom are professors at the University of Texas Health
Science Center School of Dentistry.              The individual plaintiffs limit their
practice to one of the following practice areas: implant dentistry, dental
anesthesiology, oral medicine, and orofacial pain.                Each of the individual
plaintiffs has been certified as a “diplomate” by one of the organizational
plaintiffs’ credentialing boards, indicating that the plaintiff has achieved that
board’s highest honor by meeting certain requirements set by the board
“including training and experience beyond dental school.”
       The Texas Occupations Code provides that the Texas State Board of
Dental Examiners may “adopt and enforce reasonable restrictions to regulate
advertising relating to the practice of dentistry . . . .” See TEX. OCC. CODE
§ 254.002(b). The plaintiffs take issue with one of the Board’s regulations,
Texas Administrative Code Section 108.54. Section 108.54 provides:
       A dentist may advertise as a specialist or use the terms “specialty”
       or “specialist” to describe professional services in recognized
       specialty areas that are: (1) recognized by a board that certifies
       specialists in the area of specialty; and (2) accredited by the
       Commission on Dental Accreditation of the American Dental
       Association.

TEX. ADMIN. CODE § 108.54(a).            Part (b) lists the ADA’s nine recognized
specialty areas as the ones that meet the requirements of part (a). 1 The Board
does not itself certify specialties but instead relies exclusively on the ADA for
that purpose. Section 108.54 also requires certain ADA-related education or
board-certification qualifications in order to advertise as a specialist. See TEX.
ADMIN. CODE § 108.54(c).


       1Those recognized specialty areas are endodontics, oral and maxillofacial surgery,
orthodontics and dentofacial orthopedics, pediatric dentistry, periodontics, prosthodontics,
dental public health, oral and maxillofacial pathology, and oral and maxillofacial radiology.
See TEX. ADMIN. CODE § 108.54(b).
                                             3
    Case: 16-50157    Document: 00514039074     Page: 4   Date Filed: 06/19/2017



                                 No. 16-50157
      Section 108.54 prohibits the individual plaintiffs from advertising as
specialists or referring to their practice areas as specialties because their
practice areas are not recognized as such by the ADA. The ADA has considered
whether to grant specialty recognition to the plaintiffs’ respective practice
areas, but thus far it has denied that recognition. Nevertheless, the plaintiffs
are not completely forbidden from advertising their practice areas. In 2012,
two of the individual plaintiffs in this case and the American Academy of
Implant Dentistry challenged a separate provision of the Texas Administrative
Code that restricted the plaintiffs from advertising their credentials and
holding themselves out as specialists in implant dentistry.          The Board
responded by revising an existing regulation and adding another. See TEX.
ADMIN. CODE §§ 108.55, 108.56. Section 108.55 allows general dentists who do
some work related to the specialty areas listed in Section 108.54(b) to advertise
those services as long as they include a disclaimer that they are a general
dentist and do not imply specialization. Section 108.56 provides that dentists
may advertise “credentials earned in dentistry so long as they avoid any
communications that express or imply specialization . . . .”      See also TEX.
ADMIN. CODE § 108.57 (prohibiting false, misleading, or deceptive advertising).
      Under the current regulations, the plaintiffs may advertise credentials
they have earned and the services they provide only if they clearly disclose that
they are a “general dentist” and do not “imply specialization.” See TEX. ADMIN.
CODE §§ 108.55, 108.56. The plaintiffs complain that this regime prevents
them from truthfully holding themselves out as “specialists” in their fields.
      In March 2014, the plaintiffs brought this action against the executive
director and members of the Board in their official capacities. The plaintiffs
challenged Section 108.54 on First and Fourteenth Amendment grounds, and
the parties eventually filed cross-motions for summary judgment. The district
court granted summary judgment to the plaintiffs in part, concluding that
                                       4
    Case: 16-50157    Document: 00514039074     Page: 5   Date Filed: 06/19/2017



                                 No. 16-50157
Section 108.54 “is an unconstitutional restriction on Plaintiffs’ First
Amendment right to free commercial speech.”            The court enjoined the
defendants “from enforcing Texas Administrative Code § 108.54 to the extent
it prohibits Plaintiffs from advertising as specialists or using the terms
‘specialty’ or ‘specialist’ to describe an area of dentistry not recognized as a
specialty by the American Dental Association, or any other provision of Texas
law inconsistent with [the district court’s] opinion.” The court determined the
plaintiffs’ “remaining Fourteenth Amendment claims are without merit” and
granted summary judgment to the defendants on those claims. The defendants
appealed.


                                DISCUSSION
      We review a judgment on cross-motions for summary judgment de novo
“with evidence and inferences taken in the light most favorable to the
nonmoving party.” White Buffalo Ventures, LLC v. Univ. of Texas at Austin,
420 F.3d 366, 370 (5th Cir. 2005). Summary judgment is proper when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
      This case involves commercial speech, which is protected by the First
Amendment.      See Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 761–62 (1976). “Commercial expression
not only serves the economic interest of the speaker, but also assists consumers
and furthers the societal interest in the fullest possible dissemination of
information.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New
York, 447 U.S. 557, 561–62 (1980).
      Though commercial speech is protected by the First Amendment, courts
give to it “lesser protection . . . than to other constitutionally guaranteed
expression.” Id. at 563. A four-part test applies:
                                       5
     Case: 16-50157    Document: 00514039074      Page: 6   Date Filed: 06/19/2017



                                  No. 16-50157
      At the outset, we must determine whether the expression is
      protected by the First Amendment. For commercial speech to come
      within that provision, it at least must concern lawful activity and
      not be misleading.        Next, we ask whether the asserted
      governmental interest is substantial. If both inquiries yield
      positive answers, we must determine whether the regulation
      directly advances the governmental interest asserted, and whether
      it is not more extensive than is necessary to serve that interest.

Id. at 566. “The party seeking to uphold a restriction on commercial speech
carries the burden of justifying it.” Bolger v. Youngs Drug Prods. Corp., 463
U.S. 60, 71 n.20 (1983). Within this framework, we consider the plaintiffs’
challenge to Section 108.54. We conclude that the Board fails to justify Section
108.54 under the Central Hudson analysis. We do not reach the plaintiffs’
Fourteenth Amendment argument.
      Before we begin our analysis, we measure the reach of the district court’s
ruling. The parties dispute whether the district court enjoined Section 108.54
facially or as applied. We find that answer in the district court’s own words:
Section 108.54 “is an unconstitutional restriction on Plaintiffs’ First
Amendment right to free commercial speech.” We interpret that language to
mean that Section 108.54 is held to be unconstitutional only as applied to these
plaintiffs. Neither the district court nor we address whether this language
would also fail a facial challenge.


I.    Lawful Activity, Not Misleading
      In order for commercial speech to be protected under the First
Amendment, “it at least must concern lawful activity and not be misleading.”
Central Hudson, 447 U.S. at 566. “The first part of the test is really a threshold
determination whether the speech is constitutionally protected . . . .” Byrum
v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009).


                                        6
    Case: 16-50157     Document: 00514039074     Page: 7   Date Filed: 06/19/2017



                                  No. 16-50157
      The parties do not dispute that the relevant speech in this case concerns
lawful activity.   Texas law permits the individual plaintiffs to limit their
practice to the fields of implant dentistry, dental anesthesiology, oral medicine,
and orofacial pain. We agree, then, that advertising as a specialist in one of
these practice areas concerns lawful activity.
      The parties disagree as to whether the speech would be misleading or
just potentially misleading. The distinction is important. “States may not
place an absolute prohibition on certain types of potentially misleading
information . . . if the information also may be presented in a way that is not
deceptive.” In re R.M.J., 455 U.S. 191, 203 (1982). “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.” Id.
      The Board argues that the relevant speech here is inherently misleading
because the term “specialist,” in the context of unregulated dental advertising,
is devoid of intrinsic meaning. The Board urges us to categorize the term
“specialist” in a completely unregulated context, reasoning “the State need only
show that an unregulated, unadorned, and unexplained claim of ‘specialist’
status in a particular practice area is inherently misleading[.]” In support, the
Board offers witness testimony from several dentists regarding what they
perceive “specialist” to mean.     Observing that the witnesses characterize
“specialist” differently, the Board reasons the term “specialist” has no agreed-
upon meaning, is devoid of intrinsic meaning, and is therefore inherently
misleading.
      It has been “suggested that commercial speech that is devoid of intrinsic
meaning may be inherently misleading, especially if such speech historically
has been used to deceive the public.”         Peel v. Attorney Registration &
Disciplinary Comm’n of Illinois, 496 U.S. 91, 112 (1990) (Marshall, J. &
                                        7
    Case: 16-50157    Document: 00514039074     Page: 8     Date Filed: 06/19/2017



                                 No. 16-50157
Brennan, J., concurring in the judgment). The Court noted, for example, that
a trade name is “a form of commercial speech that has no intrinsic meaning.”
Friedman v. Rogers, 440 U.S. 1, 12 (1979).         “A trade name conveys no
information about the price and nature of the services offered . . . until it
acquires meaning over a period of time . . . .” Id. The term “specialist,” by
contrast, is not devoid of intrinsic meaning. All of the testimony offered by the
Board demonstrates that the term “specialist” conveys a degree of expertise or
advanced ability. Although different consumers may understand the degree of
expertise in different ways, that only shows the term has the potential to
mislead.   It does not mean the term is devoid of intrinsic meaning and,
therefore, inherently misleading.
      The Board nevertheless urges that the use of the term “specialist” is
unprotected because, unlike in Peel, the “specialist” designation might be used
without reference to any certifying organization. The Court in Peel considered
a claim of “certification as a ‘specialist’ by an identified national
organization[.]” Peel, 496 U.S. at 105. The problem here is the absence of any
group imprimatur behind the label “specialist.”           Nonetheless, the term
“specialist” is not rendered devoid of intrinsic meaning, and thereby inherently
misleading, simply because the organization responsible for conferring
specialist credentials on a particular dentist is not identified in the
advertisement. See Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, Bd. of
Accountancy, 512 U.S. 136, 145 & n.9 (1994). Whether the absence of that
information contributes to the potentially misleading character of the speech
is a separate question.
      Moreover, there is no evidence that the term “specialist” has been or will
be used in a way that is distinct from its ordinary meaning. In one appeal, we
held that the use of the term “invoice” in automobile advertising was
inherently misleading because it was “calculated to confuse the consumer[.]”
                                       8
    Case: 16-50157     Document: 00514039074    Page: 9   Date Filed: 06/19/2017



                                 No. 16-50157
Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm’n, 24 F.3d 754, 757
(5th Cir. 1994) (quotation marks omitted).      It was misleading because an
advertised price of “$49.00 over invoice” could mean a multitude of prices other
than the dealer’s true cost because “holdbacks, incentives, and rebates” were
included in the dealer’s cost. Id. The word “invoice” did “not mean what it
appear[ed] to mean” and conveyed no useful information to the consumer. Id.
        Here, the individual plaintiffs intend to use “specialist” in the same
manner as dentists practicing in ADA-recognized specialties, namely, to
convey useful, truthful information to the consumer. Unlike in Joe Conte, the
relevant term — “specialist” as opposed to “invoice” — will be used in a way
that is consistent with its ordinary meaning.
        Finally, the Board suggests that the plaintiffs’ proposed speech is
inherently misleading simply because it does not comply with the regulatory
requirements imposed by the Board. According to the Board, Section 108.54
“is what gives ‘specialist’ a standardized, reliable meaning in dental
advertising in Texas.” The Board’s argument would grant it the ability to limit
the use of the term “specialist” simply by virtue of having created a regime that
defines recognized and non-recognized specialties. See Byrum, 566 F.3d at 447.
Even if appropriate regulation is warranted because the “specialist”
designation might be potentially misleading, it is not inherently misleading
merely because it does not align with the Board’s preferred definition of that
term.
        Our fundamental issue is whether the speech is subject to First
Amendment protection. “Truthful advertising related to lawful activities is
entitled to the protections of the First Amendment.” In re R.M.J., 455 U.S. at
203. The dentists’ proposed speech “may be presented in a non-deceptive
manner and [is] not ‘inherently likely to deceive’ the public.” See Pub. Citizen,
Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212, 219 (5th Cir. 2011)
                                       9
      Case: 16-50157   Document: 00514039074     Page: 10   Date Filed: 06/19/2017



                                  No. 16-50157
(quoting In re R.M.J., 455 U.S. at 202). “Given the complete absence of any
evidence of deception, the Board’s concern about the possibility of deception in
hypothetical cases is not sufficient to rebut the constitutional presumption
favoring disclosure over concealment.” Ibanez, 512 U.S. at 145 (quotation
marks and citations omitted).        By completely prohibiting dentists from
advertising as specialists simply because their practice area is one not
recognized as a specialty by the ADA, “truthful and nonmisleading expression
will be snared along with fraudulent or deceptive commercial speech[.]” See
Edenfield v. Fane, 507 U.S. 761, 768–69 (1993).
        The plaintiffs’ proposed speech is not inherently misleading. Even so,
the Board may regulate potentially misleading speech if the regulation
satisfies the remaining elements of the Central Hudson test. See id. at 769. In
order to meet its burden, the Board must “show[] that the restriction directly
and materially advances a substantial state interest in a manner no more
extensive than necessary to serve that interest.” Ibanez, 512 U.S. at 142 (citing
Central Hudson, 447 U.S. at 566). We now look at those issues.


II.     Substantial Interests
        The parties agree that the Board has asserted substantial interests. The
plaintiffs dispute two of the interests articulated by the Board: “preventing the
public from being misled to believe that qualification as a ‘specialist’ under
non-ADA-approved criteria is equivalent to qualification as a ‘specialist’ under
ADA-approved criteria,” and “exercising its ‘power to establish standards for
licensing practitioners,’ Goldfarb v. Virginia State Bar, 421 U.S. 773, 792
(1975)[.]” The plaintiffs argue that these are not substantial interests.
        These interests appear to be related to the state’s interest in “ensuring
the accuracy of commercial information in the marketplace, establishing
uniform standards for certification and protecting consumers from misleading
                                        10
       Case: 16-50157   Document: 00514039074       Page: 11   Date Filed: 06/19/2017



                                     No. 16-50157
professional advertisements.” The Board considers the plaintiffs’ objections to
be “inconsequential” because the plaintiffs concede “the State has a substantial
interest in protecting the public from misleading advertising[.]”            As the
plaintiffs point out, however, the Board may not assert a substantial interest
in Section 108.54 itself simply because “States have a compelling interest in
the practice of professions within their boundaries[.]” See also Goldfarb, 421
U.S. at 792.
         Regardless of these questions, we agree with the district court that the
Board has a substantial interest in “ensuring the accuracy of commercial
information in the marketplace, establishing uniform standards for
certification    and    protecting   consumers      from   misleading   professional
advertisements.” These interests satisfy this part of Central Hudson.


III.     Directly Advances the Governmental Interest
         Next, we turn to whether the regulation directly advances the
substantial governmental interests asserted. See Central Hudson, 447 U.S. at
566. This step of the Central Hudson analysis “concerns the relationship
between the harm that underlies the State’s interest and the means identified
by the State to advance that interest.” Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 555 (2001). The Board’s burden on this point is significant: “the free flow
of commercial information is valuable enough to justify imposing on would-be
regulators the costs of distinguishing the truthful from the false, the helpful
from the misleading, and the harmless from the harmful.” Ibanez, 512 U.S. at
143 (quotation marks omitted).          “This burden is not satisfied by mere
speculation or conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it recites
are real and that its restriction will in fact alleviate them to a material degree.”
Edenfield, 507 U.S. at 770–71.         The Board may satisfy its burden with
                                         11
    Case: 16-50157    Document: 00514039074        Page: 12   Date Filed: 06/19/2017



                                  No. 16-50157
“empirical data, studies, and anecdotal evidence,” or “‘history, consensus, and
simple common sense.’” See Pub. Citizen, 632 F.3d at 221 (quoting Florida Bar
v. Went For It, Inc., 515 U.S. 618, 628 (1995)).
      The Board says it is common sense that Section 108.54 advances the
interest in establishing a uniform standard for specialization and allows
consumers to distinguish between general dentists and specialists. The Board
also submits that Section 108.54 protects consumers from potentially
misleading speech. We note that the Board has not done much heavy lifting
here. Indeed, it points to the fact that Section 108.54 provides a standard, but
it offers no justification for the line that it draws other than its unsupported
assertion that the ADA “should maintain the national gold standard . . . .” Its
only suggestion as to why the plaintiffs’ proposed speech would be misleading
is that the speech does not comport with the ADA’s list of designated
specialties.
      The Board attempts to support its position with the personal experiences
of Board members and two surveys considered in another case. See Borgner v.
Brooks, 284 F.3d 1204, 1211–13 (11th Cir. 2002). The personal experiences of
the Board members add little to the Board’s argument, and the Borgner
surveys hardly bolster its position. The Borgner surveys are not in the record
and the district court could not “mak[e] an independent evaluation of their
applicability to the facts before it . . . .” Moreover, those surveys were provided
in support of a different regulatory regime that permitted “advertisement of
an implant dentistry specialty” and membership in a credentialing
organization “so long as these statements are accompanied by the appropriate
disclaimers.” Id. at 1210. Doubt has also been raised as to the validity of the
surveys. See id. at 1217 n.5 (Hill, J., dissenting); see also Borgner v. Florida
Bd. of Dentistry, 123 S. Ct. 688, 689 (2002) (Thomas, J. & Ginsburg, J.,
dissenting from denial of certiorari).
                                         12
   Case: 16-50157    Document: 00514039074      Page: 13   Date Filed: 06/19/2017



                                 No. 16-50157
      The Board also discusses its long history of reliance on the ADA’s
recognition of specialties. Other states have taken a similar approach. In
supplemental briefing, however, the parties identified a recent change in the
ADA’s own approach to dental-specialty advertising under the ADA Principles
of Ethics and Code of Professional Conduct. The ADA now concludes it is
ethical for dentists, within certain parameters, to “announce as a specialist to
the public” in any of the nine practice areas recognized as specialties by the
ADA and “in any other areas of dentistry for which specialty recognition has
been granted under the standards required or recognized in the practitioner’s
jurisdiction . . . .” The ADA observed that “states have begun to recognize
specialties beyond the nine dental specialties recognized by the ADA.”
      The Board has provided little support in its effort to show that
Section 108.54 advances the asserted interests in a direct and material way.
See Went For It, 515 U.S. at 625–26. Ultimately, though, the Board’s position
collapses for a more fundamental reason: it fails at the outset to “demonstrate
that the harms it recites are real . . . .” See Edenfield, 507 U.S. at 771. The
Board attempts to meet its burden on this point with testimony from several
witnesses describing complications experienced when patients visited a
general dentist for a procedure that should have been performed by a
specialist. One of the Board’s members, for example, described treating a
patient who experienced complications after visiting a general dentist to have
nine implants placed. The patient said, “if I had only known that there was a
specialist[.]” Another Board member described a similar problem, testifying
that “patients will come to [his specialty] practice after experiencing a
complication in a general dentist’s office.” A third witness testified that the
“overall failure rate and complication rate was higher for nonspecialists who
were placing dental implants.” Nevertheless, harm from a general dentist
performing work within an ADA-recognized specialty at a lower quality than
                                      13
      Case: 16-50157     Document: 00514039074          Page: 14     Date Filed: 06/19/2017



                                       No. 16-50157
would a specialist is not a harm that Section 108.54 remedies. 2 Section 108.54
regulates how a dentist may advertise his or her practice, not the kind of
services a dentist can provide. The Board does not suggest that any of the
complications described in the witness testimony were experienced by patients
visiting dentists who held themselves out as specialists, but who were not
qualified to do so.
        In summary, we must examine “the relationship between the harm that
underlies the State’s interest and the means identified by the State to advance
that interest.”     Lorillard, 533 U.S. at 555.          The Board does not identify
anything else to demonstrate real harms that Section 108.54 alleviates to a
material degree. See Edenfield, 507 U.S. at 771. Absent that demonstration,
and with little support behind its chosen means, we conclude that the Board
has not met its burden at this step of the Central Hudson analysis.


IV.     Not More Extensive than is Necessary
        Even if the Board demonstrated that Section 108.54 directly advanced
the interests asserted, it fails to demonstrate that it is “not more extensive
than is necessary to serve” those interests. See Central Hudson, 447 U.S. at
566. This last step “complements” the third step of the analysis. See Lorillard,
533 U.S. at 556.          Here, “the Constitution requires ‘a fit between the
legislature’s ends and the means chosen to accomplish those ends—a fit that
is not necessarily perfect, but reasonable; that represents not necessarily the
single best disposition but one whose scope is in proportion to the interest
served.’” Byrum, 566 F.3d at 448 (quoting Bd. of Trs. of the State Univ. of New



        2   In his deposition, one of the plaintiffs in this case stated he was “aware
of . . . instances where general dentists, without any form of specialty, have advertised as
implant experts and that [has] been a problem[.]” The “problem” was business competition,
as the plaintiff wished to advertise that he — unlike those other dentists — was a specialist.
                                             14
    Case: 16-50157    Document: 00514039074      Page: 15    Date Filed: 06/19/2017



                                  No. 16-50157
York v. Fox, 492 U.S. 469, 480 (1989)). “[T]he existence of ‘numerous and
obvious less-burdensome alternatives to the restriction on commercial
speech . . . is certainly a relevant consideration in determining whether the
“fit” between ends and means is reasonable.’” Went For It, 515 U.S. at 632
(quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993)).
The cost of the restriction must be “carefully calculated,” and the Board “must
affirmatively establish the reasonable fit . . . require[d].” Fox, 492 U.S. at 480.
      Section 108.54 completely prohibits the plaintiffs from advertising as
specialists in their fields solely because the ADA has not recognized their
practice areas as specialties. The Board has not justified Section 108.54 with
argument or evidence. Without more in the record, we find an improper fit
between the means and the objective.
      The Board has not suggested it considered less-burdensome alternatives.
To the extent that advertising as a specialist is potentially misleading, “a State
might consider . . . requiring a disclaimer about the certifying organizations or
the standards of a specialty.” See Peel, 496 U.S. at 110 (plurality opinion).
Sufficient disclaimers are a means to address consumer deception.             Pub.
Citizen, 632 F.3d at 223. Indeed, we held in Public Citizen that the State failed
to meet its burden where it merely submitted a “conclusory statement that a
disclaimer could not alleviate [the] concerns” it earlier identified. Id. A State
might also consider “screening certifying organizations . . . .” See Peel, 496
U.S. at 110 (plurality opinion). The California legislature took precisely that
approach when regulating the use of the term “board certified” among
physicians and surgeons. See Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d
1099, 1107, 1111 (9th Cir. 2004). Similarly, the district court in our case noted
that “[o]ne obvious less-burdensome alternative would be to peg the term
‘specialty’ or ‘specialist’ to a set of statutory or regulatory qualifications that
signify the credentialing board has met some uniform standard of minimal
                                        15
   Case: 16-50157    Document: 00514039074        Page: 16   Date Filed: 06/19/2017



                                 No. 16-50157
competence.” This is not a novel approach. For example, one court believed
California’s regulatory scheme “appeared to rely upon the ADA in making
recognition decisions,” but in response to a predecessor lawsuit the dental
board “developed its own recognition standards which [were] reduced to a
proposed regulation.” See Bingham v. Hamilton, 100 F. Supp. 2d 1233, 1235
(E.D. Cal. 2000).    We express no opinion regarding the merits of these
alternative approaches, but we note the existence of several less-burdensome
alternatives. See Went For It, 515 U.S. at 632.
      The Board submits that the individual plaintiffs can “engage in a
substantial amount of commercial speech regarding their dental practices.”
The plaintiffs can advertise the credentials they have earned and the services
that they provide, albeit within certain parameters. See TEX. ADMIN. CODE §§
108.55, 108.56. Nonetheless, the existence of other forms of commercial speech
does not eliminate the overbreadth of the regulation on specialty advertising
that is truthful and has not been shown to be misleading commercial speech.
The Board’s position is especially troublesome because there is no indication
whatsoever that it “carefully calculated” the costs              associated with
Section 108.54. See Fox, 492 U.S. at 480.
      We do not suggest that the Board may not impose appropriate
restrictions in the area of dental specialist advertising. The plaintiffs agree
that advertising as a specialist is potentially misleading and that reasonable
regulation is appropriate. We hold only that the Board has not met its burden
on the record before us to demonstrate that Section 108.54, as applied to these
plaintiffs, satisfies Central Hudson’s test for regulation of commercial speech.
We reiterate a limitation noted by the district court: “While the challenged
restriction might be permissible in the abstract, it is not permissible on the
record currently before the Court.”


                                      16
   Case: 16-50157     Document: 00514039074     Page: 17   Date Filed: 06/19/2017



                                 No. 16-50157
      Although the Board has not met its burden in this case, a “regulation
that fails Central Hudson because of a lack of sufficient evidence may be
enacted validly in the future on a record containing more or different evidence.”
See Pub. Citizen, 632 F.3d at 221. Our holding neither forbids nor approves
the enactment of a similar regulation supported by better evidence.
                                    * * *
      The Texas Academy of Pediatric Dentistry, the Texas Society of Oral and
Maxillofacial Surgeons, and the Texas Association of Orthodontists submitted
an opposed motion to file an amicus brief. That motion was carried with the
case. The motion is DENIED.
      AFFIRMED.




                                       17
    Case: 16-50157        Document: 00514039074         Page: 18     Date Filed: 06/19/2017



                                        No. 16-50157
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      I disagree with the majority that Rule 108.54 1 of the Texas
Administrative Code is unconstitutional as applied to the plaintiffs
(hereinafter collectively referred to as “Academy”). The advertising proposed
by Academy is inherently misleading. Misleading commercial speech is not
entitled to First Amendment protection. Because I would reverse the district
court’s grant of summary judgment on Academy’s First Amendment claim and
its enjoinment of the provision as applied to Academy, I respectfully dissent.
      Academy wants to advertise as specialists in certain subsets of dentistry
that are not recognized as specialties by the American Dental Association
(“ADA”) and are prohibited from doing so by the rules of the Texas State Dental
Board of Dental Examiners (the “Board”). Academy brought a facial and as-
applied constitutional challenge against the Board arguing that Rule 108.54,
which regulates specialty advertising for dentists, unconstitutionally infringes
on commercial speech protected by the First Amendment.
      The district court partially granted both parties’ cross-motions for
summary judgment. Academy was granted summary judgment on its First
Amendment claim, invalidating the ordinance as applied to Academy. The
Board was granted summary judgment on Academy’s equal protection and due
process claims. The Board appeals the First Amendment claim. Academy
failed to file a cross-appeal, but then attempts to revive a Fourteenth
Amendment due process claim in the appellees’ brief.
      As the majority correctly states, we apply the four-part test from Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557
(1980), as follows:
      At the outset, we must determine whether the expression is
      protected by the First Amendment. For commercial speech to come

      1   See Appendix, No. 1, herein for 22 Tex. Admin. Code § 108.54 in its entirety.
                                              18
    Case: 16-50157     Document: 00514039074    Page: 19    Date Filed: 06/19/2017



                                 No. 16-50157
      within that provision, it at least must concern lawful activity and
      not be misleading. Next, we ask whether the asserted
      governmental interest is substantial. If both inquiries yield
      positive answers, we must determine whether the regulation
      directly advances the governmental interest asserted, and whether
      it is not more extensive than is necessary to serve that interest.

Id. at 566.
      As a threshold determination, for commercial speech to be protected
under the First Amendment, “it at least must concern lawful activity and not
be misleading.”      Central Hudson, 447 U.S. at 566.       Advertising that is
inherently misleading receives no protection, while advertising that is
potentially misleading may receive some if it may be presented in a way that
is not deceptive. In re R.M.J., 455 U.S. 191, 203 (1982).
      This case is analogous to American Board of Pain Management v. Joseph,
353 F.3d 1099 (9th Cir. 2004), which involved a California statute that limits
a physician from advertising as board certified in a medical specialty without
meeting certain requirements. There, the Ninth Circuit said:
      The State of California has by statute given the term “board
      certified” a special and particular meaning. The use of that term
      in advertising by a board or individual physicians who do not meet
      the statutory requirements for doing so, is misleading. The
      advertisement represents to the physicians, hospitals, health care
      providers and the general public that the statutory standards have
      been met, when, in fact, they have not.

      Because the Plaintiffs' use of “board certified” is inherently
      misleading, it is not protected speech. But even if the Plaintiffs'
      use of “board certified” were merely potentially misleading, it
      would not change the result in this case, as consideration of the
      remaining three Hudson factors confirms that the State may
      restrict the use of the term “board certified” in advertising.

Joseph, 353 F.3d at 1108.



                                      19
    Case: 16-50157       Document: 00514039074        Page: 20     Date Filed: 06/19/2017



                                      No. 16-50157
       Such is the case here. Texas has by statute given the term specialist a
particular meaning. See 22 Tex. Admin. Code § 108.54; see also 22 Tex. Admin.
Code §§ 119.1-119.9 (setting out special areas of dental practice).
       Additionally, it is only “in the context of unregulated dental advertising”
that the Board contends the term “specialist” is devoid of intrinsic meaning
and is inherently misleading.           But with regard to the regulated dental
advertising and the recognized specialty areas, the term has a special meaning
and special requirements.
       Further, the areas that Academy seeks to have designated as specialties
are actually more like subsets, which are already encompassed within general
dentistry and multiple of the existing recognized specialties.               See 22 Tex.
Admin. Code §§ 119.1-119.9; see also Tex. Occ. Code § 251.003 (setting out the
provisions of the practice of dentistry). The majority opinion allows that,
instead of a general dentist having to comply with the academic, educational
or certification necessary to become, for example, a prosthodontist, a general
dentist can simply get “certified” in one small aspect of the branch of
prosthodontics, i.e., implants, and advertise at the same level as someone who
actually completed an advanced degree in an accredited specialty. 2
       The majority relies on Peel v. Attorney Registration and Disciplinary
Commission of Illinois, 496 U.S. 91 (1990), to conclude that “specialist” is not
devoid of intrinsic meaning.         In Peel, the issue involved letterhead and a
statement that the attorney was a “certified civil trial specialist by the
National Board of Trial Advocacy.” The Court concluded that this was not
inherently misleading, saying that “it seems unlikely that petitioner's



       2 “Prosthodontics is that branch of dentistry pertaining to the restoration and
maintenance of oral functions, comfort, appearance, and health of the patient by the
restoration of natural teeth and/or the replacement of missing teeth and contiguous oral and
maxillofacial tissues with artificial substitutes.” 22 Tex. Admin. Code § 119.8.
                                            20
   Case: 16-50157         Document: 00514039074         Page: 21     Date Filed: 06/19/2017



                                        No. 16-50157
statement about his certification as a ‘specialist’ by an identified national
organization necessarily would be confused with formal state recognition.” Id.
at 104-05.      The Court further reiterated that a “State may not, however,
completely ban statements that are not actually or inherently misleading, such
as certification as a specialist by bona fide organizations such as NBTA” and
pointed out that “[t]here is no dispute about the bona fides and the relevance
of NBTA certification.” Id. at 110.         However, that is not the case here where,
as the Board correctly asserts, the term “specialist” may be used without
reference to any identified certifying organization and there is a dispute about
the bona fides and relevance of the certifications.
      Thus, despite what the majority says, the problem is not merely that “the
organization responsible for conferring specialist credentials on a particular
dentist is not identified in the advertisement.” Nevertheless, Ibanez v. Florida
Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 145, n.9
(1994), is also distinguishable. Ibanez involved an attorney who advertised her
credentials as CPA (Certified Public Accountant) and CFP (Certified Financial
Planner). Again, there were no questions about the certifications. Further,
footnote 9, which addressed only a point raised in a separate opinion, says that
a consumer could easily verify Ibanez’ credentials – as she was indeed a
licensed CPA through the Florida Board of Accountancy and also a CFP. More
importantly, Ibanez was not practicing accounting. Further, under 22 Tex.
Admin. Code §§ 108.56 additional credentials or certifications are clearly
allowed to be advertised in Texas. 3
      In Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Commission, 24
F.3d 754 (5th Cir. 1994), this court relied on evidence in the record to support
the district court’s finding that the use of the term “invoice” in the automobile


      3   See Appendix, No. 3, herein for 22 Tex. Admin. Code § 108.56 in its entirety.
                                              21
   Case: 16-50157     Document: 00514039074      Page: 22   Date Filed: 06/19/2017



                                 No. 16-50157
industry was inherently misleading.      That evidence included testimony of
various car dealers that “invoice” means different things. Id. at 757. Here, we
have testimony that “specialist” in unregulated dental advertising means
different things.   The majority’s statement that “[h]ere, the individual
plaintiffs intend to use ‘specialist’ in the same manner as dentists practicing
in ADA-recognized specialties” is erroneous. In fact, the plaintiffs intend to
use “specialist” to encompass subsets of existing specialties that do not
necessarily require the same academic, educational or certification required of
the specialties recognized by both the ADA and Texas.
      For these reasons, I would conclude that the term “specialist” in the
context of unregulated dental advertising is inherently misleading and, thus,
not protected by the First Amendment.
      Moreover, even if Academy’s proposed speech was only potentially
misleading, the Board would still be able to regulate it under the remaining
elements of the Central Hudson test quoted previously herein. As the Board
asserts, the evidence provided, at the very least, creates a question of fact
sufficient to survive summary judgment.
      The Supreme Court said in Ibanez:
      Commercial speech that is not false, deceptive, or misleading can
      be restricted, but only if the State shows that the restriction
      directly and materially advances a substantial state interest in a
      manner no more extensive than necessary to serve that interest.
      Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y.,
      447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980); see
      also id., at 564, 100 S.Ct., at 2350 (regulation will not be sustained
      if it “provides only ineffective or remote support for the
      government's purpose”); Edenfield v. Fane, 507 U.S. 761, 767, 113
      S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993) (regulation must advance
      substantial state interest in a “direct and material way” and be in
      “reasonable proportion to the interests served”); In re R.M.J., 455
      U.S., at 203, 102 S.Ct., at 937 (State can regulate commercial


                                       22
    Case: 16-50157    Document: 00514039074       Page: 23   Date Filed: 06/19/2017



                                  No. 16-50157
      speech if it shows that it has “a substantial interest” and that the
      interference with speech is “in proportion to the interest served”).

Ibanez, 512 U.S. at 142-43.
      The majority acknowledges that the Board has a substantial interest.
But, the majority then concludes that the Board has not demonstrated that
Rule 108.54 directly advances the asserted interests. I disagree. The Board
presented evidence demonstrating how Rule 108.54 would directly and
materially advance the asserted interests. That evidence included “empirical
data, studies, and anecdotal evidence” or “history, consensus, and simple
common sense.” See Pub. Citizen Inc. v. La. Attorney Disciplinary Bd., 632
F.3d 212 (5th Cir. 2011).
      The majority dismisses the empirical data and studies referenced in
Borgner v. Brooks, 284 F.3d 1204, 1211-13 (11th Cir. 2002), because the actual
studies are not in the record. The absence of those studies in the record does
not undermine the reliability or persuasiveness of the Eleventh Circuit’s
analysis and conclusions about those same studies including, but not limited
to, the following:
             These two surveys, taken together, support two contentions:
      (1) that a substantial portion of the public is misled by AAID and
      implant dentistry advertisements that do not explain that AAID
      approval does not mean ADA or Board approval; and (2) that ADA
      certification is an important factor in choosing a dentist/specialist
      in a particular practice area for a large portion of the public.

Id. at 1213.
      Additionally, the majority dismisses deposition testimony and evidence
of complications saying, in part, that the harms would not be remedied by Rule
108.54 because it merely regulates how a dentist may advertise. I disagree.
Rule 108.54 regulates what a dentist may hold himself out as being to the
public, i.e., a general dentist with or without certain credentials or a specialist.

                                        23
   Case: 16-50157         Document: 00514039074         Page: 24     Date Filed: 06/19/2017



                                        No. 16-50157
The majority further dismisses witness testimony because it does not
necessarily pertain to general dentists who violated the existing rule by
holding themselves out as specialists in advertisements. The point of the
testimony was to offer support for the fact that an ADA-recognized specialist
has a higher success rate and fewer complications than a general dentist who
may perform a subset of those recognized specialties. Also, what the Board
does clearly establish is that the harms Rule 108.54 seeks to prevent are very
real. This was established by way of both anecdotal evidence and simple
common sense. With regard to consensus, the Board introduced evidence that
numerous other states limit dental-specialty advertising.
      Rules 108.55-56 allow any pertinent information about individual
plaintiffs’ qualifications to be advertised to consumers. See 22 Tex. Admin.
Code §§ 108.55-56. 4 Rules 108.55-56 also clearly establish that Rule 108.54 is
not more extensive than necessary. Dentists are able to advertise any and all
dental credentials and certifications so long as they do not hold themselves out
as specialists in areas where they have not complied with the statutory
requirements.
      Thus, even if the speech was only potentially misleading, I would
conclude that the Board can still regulate it under the Central Hudson test.
      For these reasons, I would reverse the district court’s grant of summary
judgment on Academy’s First Amendment claim and its enjoinment of the
provision as applied to Academy. Therefore, I respectfully dissent.




      4   See Appendix, No. 2, herein for 22 Tex. Admin. Code § 108.55 in its entirety.
                                              24
Case: 16-50157    Document: 00514039074      Page: 25    Date Filed: 06/19/2017



                              No. 16-50157
                              APPENDIX
  1. Rule 108.54 states:
  (a) Recognized Specialties. A dentist may advertise as a specialist
  or use the terms “specialty” or “specialist” to describe professional
  services in recognized specialty areas that are:
         (1) recognized by a board that certifies specialists in the area
         of specialty; and
         (2) accredited by the Commission on Dental Accreditation of
         the American Dental Association.
  (b) The following are recognized specialty areas and meet the
  requirements of subsection (a)(1) and (2) of this section:
         (1) Endodontics;
         (2) Oral and Maxillofacial Surgery;
         (3) Orthodontics and Dentofacial Orthopedics;
         (4) Pediatric Dentistry;
         (5) Periodontics;
         (6) Prosthodontics;
         (7) Dental Public Health;
         (8) Oral and Maxillofacial Pathology; and
         (9) Oral and Maxillofacial Radiology.
  (c) A dentist who wishes to advertise as a specialist or a multiple-
  specialist in one or more recognized specialty areas under
  subsection (a)(1) and (2) and subsection (b)(1)-(9) of this section
  shall meet the criteria in one or more of the following categories:
         (1) Educationally qualified is a dentist who has successfully
         completed an educational program of two or more years in a
         specialty area accredited by the Commission on Dental
         Accreditation of the American Dental Association, as
         specified by the Council on Dental Education of the
         American Dental Association.
         (2) Board certified is a dentist who has met the requirements
         of a specialty board referenced in subsection (a)(1) and (2) of
         this section, and who has received a certificate from the
         specialty board, indicating the dentist has achieved
         diplomate status, or has complied with the provisions of §
         108.56(a) and (b) of this subchapter (relating to
         Certifications, Degrees, Fellowships, Memberships and
         Other Credentials).
         (3) A dentist is authorized to use the term ‘board certified’ in
         any advertising for his/her practice only if the specialty

                                    25
   Case: 16-50157    Document: 00514039074      Page: 26    Date Filed: 06/19/2017



                                 No. 16-50157
            board that conferred the certification is referenced in
            subsection (a)(1) and (2) of this section, or the dentist
            complies with the provisions of § 108.56(a) and (b) of this
            subchapter.
     (d) Dentists who choose to communicate specialization in a
     recognized specialty area as set forth in subsection (b)(1)-(9) of this
     section should use “specialist in” or “practice limited to” and should
     limit their practice exclusively to the advertised specialty area(s)
     of dental practice. Dentists may also state that the specialization
     is an “ADA recognized specialty.” At the time of the
     communication, such dentists must have met the current
     educational requirements and standards set forth by the American
     Dental Association for each approved specialty. A dentist shall not
     communicate or imply that he/she is a specialist when providing
     specialty services, whether in a general or specialty practice, if he
     or she has not received a certification from an accredited
     institution. The burden of responsibility is on the practice owner
     to avoid any inference that those in the practice who are general
     practitioners are specialists as identified in subsection (b)(1)-(9) of
     this section.

22 Tex. Admin. Code § 108.54.


     2. Rule 108.55 states:
     (a) A dentist whose license is not limited to the practice of an ADA
     recognized specialty identified under § 108.54(b)(1)-(9) of this
     subchapter (relating to Advertising of Specialties), may advertise
     that the dentist performs dental services in those specialty areas
     of practice, but only if the advertisement also includes a clear
     disclosure that he/she is a general dentist.
     (b) Any advertisement of any specific dental service or services by
     a general dentist shall include the notation “General Dentist” or
     “General Dentistry” directly after the name of the dentist. The
     notation shall be in a font size no smaller than the largest font size
     used to identify the specific dental services being advertised. For
     example, a general dentist who advertises “ORTHODONTICS”
     and “DENTURES” and/or “IMPLANTS” shall include a disclosure
     of “GENERAL DENTIST” or “GENERAL DENTISTRY” in a font
     size no smaller than the largest font size used for terms
     ‘orthodontics,’ ‘dentures' and/or ‘implants.’ Any form of broadcast
                                       26
   Case: 16-50157    Document: 00514039074      Page: 27   Date Filed: 06/19/2017



                                No. 16-50157
     advertising by a general dentist (radio, television, promotional
     DVDs, etc) shall include either “General Dentist” or “General
     Dentistry” in a clearly audible manner.
     (c) A general dentist is not prohibited from listing services
     provided, so long as the listing does not imply specialization. A
     listing of services provided shall be separate and clearly
     distinguishable from the dentist's designation as a general dentist.
     (d) The provisions of this rule shall not be required for professional
     business cards or professional letterhead.


22 Tex. Admin. Code § 108.55.


     3. Rule 108.56 states:
     (a) Dentists may advertise credentials earned in dentistry so long
     as they avoid any communications that express or imply
     specialization in a recognized specialty, or specialization in an area
     of dentistry that is not recognized as a specialty, or attainment of
     an earned academic degree.

     (b) A listing of credentials shall be separate and clearly
     distinguishable from the dentist's designation as a dentist. A
     listing of credentials may not occupy the same line as the dentist's
     name and designation as a dentist. Any use of abbreviations to
     designate credentials shall be accompanied by a definition of the
     acronym immediately following the credential.
     [Image with examples]

     (c) The provisions of subsection (b) of this section shall not be
     required in materials not intended for business promotion or
     public dissemination, such as peer-to-peer communications.

22 Tex. Admin. Code § 108.56.




                                      27
