    Case: 18-60144   Document: 00514841512     Page: 1   Date Filed: 02/19/2019




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

                                No. 18-60144                         FILED
                                                              February 19, 2019
                                                                Lyle W. Cayce
                                                                     Clerk

EXPRESS OIL CHANGE, L.L.C.; TE, L.L.C.,
doing business as Tire Engineers,

                 Plaintiffs–Appellants,

versus

MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL
ENGINEERS & SURVEYORS; TERRELL TEMPLE, in their individual and
official capacities as the members of the Mississippi Board of Licensure for
Professional Engineers & Surveyors; RICK TURNER, in their individual and
official capacities as the members of the Mississippi Board of Licensure for
Professional Engineers & Surveyors; JOSEPH FRANKLIN LAUDERDALE,
in their individual and official capacities as the members of the Mississippi
Board of Licensure for Professional Engineers & Surveyors; JOSEPH E.
LAUDERDALE, in their individual and official capacities as the members of
the Mississippi Board of Licensure for Professional Engineers & Surveyors;
BENNIE J. SELLERS, in their individual and official capacities as the
members of the Mississippi Board of Licensure for Professional Engineers &
Surveyors; DR. DENNIS D. TRUAX, in their individual and official capacities
as the members of the Mississippi Board of Licensure for Professional
Engineers & Surveyors; JAMES MATTHEW RANKIN, in their individual
and official capacities as the members of the Mississippi Board of Licensure
for Professional Engineers & Surveyors; JOE W. BYRD, in their individual
and official capacities as the members of the Mississippi Board of Licensure
for Professional Engineers & Surveyors; SHANNON D. TIDWELL, in their
individual and official capacities as the members of the Mississippi Board of
Licensure for Professional Engineers & Surveyors,

                 Defendants–Appellees.
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                                  No. 18-60144

                 Appeal from the United States District Court
                   for the Southern District of Mississippi




Before SMITH, BARKSDALE, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Mississippi regulates the practice of engineering and restricts the use of
the term “engineer.” Express Oil Change (“Express”) operates several automo-
tive service centers in Mississippi under the name “Tire Engineers.” In 2015,
the Mississippi Board of Licensure for Professional Engineers & Surveyors
(“the Board”) determined that the name “Tire Engineers” violated the pertin-
ent statutes and requested that Express cease using it. Following protracted
correspondence, the parties could not reach a compromise, and Express sued
for a declaratory judgment and related relief. The company contended, inter
alia, that the relevant statutory provisions violate the First Amendment as
incorporated through the Due Process Clause of the Fourteenth Amendment.
After discovery, the district court granted the Board’s motion for summary
judgment and dismissed.      Because the Board’s decision violates the First
Amendment’s commercial speech protections, we reverse and render judgment
for Express.

                                        I.
      Mississippi regulates several professions and the use of certain terms
and phrases associated with those occupations. See, e.g., MISS. CODE ANN.
§ 73-1-1 et seq. (West 2018). Relevant here, the state regulates the practice of
engineering, id. §§ 73-13-1 to -45, and restricts, inter alia, the use of the term
“engineer.” Id. § 73-13-39. Violating the statute is punishable by civil and
criminal penalties, including fines and imprisonment. Id. §§ 73-13-37 to -39.
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                                 No. 18-60144
      Express operates a number of automotive service centers in Mississippi
under the Tire Engineers mark. According to Express, Tire Engineers provides
“oil changes, car repairs, and tire services—repair, maintenance, and
replacement—to customers in fifteen states, including Mississippi.”

      In February 2015, the Board informed Express that the name Tire
Engineers violated § 73-13-39 and “respectfully request[ed] that Tire Engin-
eers change its company advertisement name in Mississippi and use an alter-
nate title such as ‘technicians’ or ‘experts’ and that the engineer title be
omitted.” In June 2016, after the parties were unable to agree, Express sued,
seeking a declaratory judgment and related relief on three theories: first, that
the Board’s decision concerning the use of the term engineer violated Missis-
sippi law; second, that it violated Express’s “rights of commercial free speech
guaranteed by the First Amendment”; and third, that the decision violated
Express’s “rights under preemptive federal trademark law [pursuant to] the
Lanham Trademark Act of 1946, 15 U.S.C. §§ 1051–1127.”

      Following discovery, the parties filed cross-motions for summary judg-
ment. The district court granted the Board’s motion and denied as moot all
other pending motions. Express raises only its constitutional claim on appeal.

                                      II.
      EOC appeals the summary judgment in favor of the Board. A “court
shall grant summary judgment if the movant shows that 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). We review a summary judgment de novo.
Pub. Citizen, Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir.
2011). Where “the evidentiary facts are not disputed, a court in a nonjury case
may grant summary judgment if trial would not enhance its ability to draw


                                       3
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                                       No. 18-60144
inferences and conclusions.” 1 In cases involving cross-motions for summary
judgment, “the motions are reviewed independently, with evidence and infer-
ences taken in the light most favorable to the nonmoving party.” White Buffalo
Ventures, LLC v. Univ. of Tex. at Austin, 420 F.3d 366, 370 (5th Cir. 2005).

                                              A.
       “In order to safeguard life, health, and property, and to promote the pub-
lic welfare,” MISS. CODE ANN. § 73-13-1, the state regulates the engineering
profession. Id. §§ 73-13-1 to -45. Consequently, no “person or firm [is permit-
ted to] practice, or offer to practice, engineering in [Mississippi] without being
licensed in accordance with” state law. Id. § 73-13-39.
           Unless licensed in accordance with the provisions of
       [§§ 73-13-1 to -45], no person shall . . . [d]irectly or indirectly
       employ, use, cause to be used or make use of any of the following
       terms . . . as a professional, business or commercial identification,
       title, [or] name . . . : ‘engineer,’ . . . .
Id. In challenging that language, Express contends that the Tire Engineers
trademark is protected by the First Amendment.

       Although the Constitution protects commercial speech, 2 that protection
is more limited than for most other speech. Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447, 456 (1978). The test for when a government actor may regulate
commercial speech is as follows:



       1 In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991) (quoting Nunez v. Superior Oil
Co., 572 F.2d 1119, 1124 (5th Cir. 1978)). This court has previously treated the dismissal of
a cross motion for summary judgment on mootness grounds as a denial. See, e.g., Browdy v.
Hartford Life & Accident Ins. Co., 630 F. App’x 278, 285 (5th Cir. 2015); Gulf Underwriters
Ins. Co. v. Great W. Cas. Co., 278 F. App’x 454, 456–57 (5th Cir. 2008); see also Norman v.
Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
       2 See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 770 (1976); Bigelow v. Virginia, 421 U.S. 809, 818 (1975). Commercial speech is
“[e]xpression related solely to the economic interests of the speaker and its audience.” Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).
                                              4
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       At the outset, [a court] 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, [a court] ask[s] whether the asserted gov-
       ernmental interest is substantial. If both inquiries yield positive
       answers, [a court] 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.
Cent. Hudson, 447 U.S. 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). This “burden is a ‘heavy’ one,” Pub.
Citizen, Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011)
(quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996)), and
may not be “satisfied ‘by mere speculation or conjecture,’” id. (quoting Eden-
field v. Fane, 507 U.S. 761, 770 (1993)).

                                              B.
       “In order for commercial speech to be protected under the First Amend-
ment, ‘it at least must concern lawful activity and not be misleading.’” Am.
Acad. of Implant Dentistry v. Parker, 860 F.3d 300, 306 (5th Cir. 2017) (quoting
Cent. Hudson, 447 U.S. at 566). Commercial statements that are actually or
inherently misleading do not enjoy the protections of the First Amendment. 3
“[A] statement is actually or inherently misleading when it deceives or is inher-
ently likely to deceive.” Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm’n,
24 F.3d 754, 756 (5th Cir. 1994). Statements that are only potentially mislead-
ing, however, are safeguarded by the First Amendment. 4 In such a case, a


       3 See, e.g., Peel v. Att’y Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100
(1990) (plurality opinion); In re R.M.J., 455 U.S. 191, 203 (1982) (“Misleading advertising
may be prohibited entirely.”).
       4 R.M.J., 455 U.S. at 203 (“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.”).
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                                        No. 18-60144
state actor 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.’” Am. Acad., 860 F.3d at 308–09 (alteration in original)
(quoting Ibanez v. Fla. Dep’t of Bus. & Prof’l Reg., Bd. of Accountancy, 512 U.S.
136, 142 (1994)).

                                 1. Inherently Misleading
       The district court found that “[Express’s] use of the name ‘Tire Engin-
eers’ is ‘inherently likely to deceive’ Mississippi consumers to believe that the
services performed at Tire Engineers are performed by tire engineers or under
the supervision of tire engineers.” The court ruled for the Board based on “sub-
stantial evidence” that tended to show “the term ‘tire engineers’ is used by
courts, universities, tire manufacturers, tire manufacturers, general periodi-
cals, specialized periodicals, and the general public to refer to actual engineers
who have expertise in the manufacture, selection, and repair of tires.”

       Express asserts that the Tire Engineers trademark is “capable of being
employed in a non-deceptive manner” and thus “cannot be deemed ‘inherently’
misleading.” 5 Express also contends that “[t]he term ‘engineer’ is commonly
used to describe jobs and trades other than professional engineering.” 6 In



       5 Express contends that the trademark Tire Engineers may be distinguished from the
advertisement in Joe Conte Toyota, in which this court determined that an advertisement
using the phrase “$49.00 over invoice,” 24 F.3d at 757, was inherently misleading because it
was “calculated to confuse the consumer.” Id. (quoting Joe Conte Toyota, Inc. v. Benson,
No. 92–0993, 1993 WL 114507 at *2 (E.D. La. Apr. 6, 1993)). Express asserts, in contrast to
the advertisement in Joe Conte Toyota, that its “trade name and service mark . . . brands all
of Tire Engineers’ automotive services uniformly”; Express contends that “the Tire Engineers
trade name and service mark are not ‘useless’ information. . . . [T]he mark tells consumers
that the business provides some level of technical services for tires and other automotive
maintenance and repair.”
       6 In support of this second point, Express asserts that we have rejected the “circular”
reasoning that a term “is inherently misleading because it does not conform to [a state actor’s]
definition . . . of the term.” See Am. Acad., 860 F.3d at 308 (discussing the use of “specialist”
                                               6
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                                       No. 18-60144
response, the Board avers that the name Tire Engineers is “demonstratively
false” and “likely to deceive the public into believing that the work performed
at Tire Engineers is either done by tire engineers or under the supervision of
tire engineers” (internal quotation marks omitted). 7 The Board also points to
evidence from a survey conducted by the Center for Research and Public Policy
in which “[s]ixty-six percent of the respondents expected that Tire Engineers
‘has professional engineers on staff,’” and “[f]ifty-eight percent [of respondents]
expected Tire Engineers to use engineers to service tires.” Additionally, the
Board highlights an Express advertisement claiming that “[a]ll of our Express
Oil Change & Tire Engineers have tire engineers who are qualified to [ser-
vice] . . . tires . . . .” 8 The Board contends that that advertisement is further
evidence that “[t]he overlap between the public’s knowledge of the work of
actual tire engineers and the services provided by Tire Engineers is actively,
easily, and inherently exploited by its name and the manner it uses its name
in advertisements.” As we explain, the better view is that the district court
erred in concluding that Express’s use of Tire Engineers is inherently
misleading.

       “Engineer” is defined, inter alia, as “a person who carries through an
enterprise or brings about a result esp[ecially] by skillful or artful contrivance”
or “a person who is trained or skilled in the technicalities of some field ([such]
as sociology or insurance) not usu[ally] considered to fall within the scope of



in the context of dentistry); Byrum v. Landreth, 566 F.3d 442, 447–48 (5th Cir. 2009) (exam-
ining “interior designer” and “interior design”).
       7  The Board highlights evidence demonstrating that there is a distinct category of
engineers known as “tire engineers,” with expertise in topics such as “how to choose the right
tire for your car,” “using tires for better gas mileage,” and “when a tire must be replaced
rather than repaired.”
       Express discontinued use of the line “Tire Engineers have tire engineers” in
       8

September 2017.
                                              7
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                                        No. 18-60144
engineering and who is engaged in using such training or skill in the solution
of technical problems.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,
UNABRIDGED 752 (1986). “Inherent” is defined as “involved in the . . . essential
character of something . . . .” Id. at 1163. 9

       Because its essential character is not deceptive, Tire Engineers is not
inherently misleading.          The name, first trademarked in 1948, apparently
refers to the work of mechanics using their skills “not usu[ally] considered to
fall within the scope of engineering” to solve “technical problems” related to
selecting, rotating, balancing, and aligning tires. Id. at 752. That this defini-
tion of “engineer” does not meet the Board’s preferred definition does not make
its use inherently misleading. 10 The term “engineer” can mean many things
in different contexts, and it is certainly not limited to those professionals
licensed by Mississippi to practice engineering. It is not, therefore, “devoid of
intrinsic meaning.” Joe Conte Toyota, 24 F.3d at 756 (quoting Peel, 496 U.S.
at 112 (Marshall, J., concurring)). Additionally, as Express explains, “[t]he
district court’s analysis failed to account for the manner in which the [Tire
Engineers] mark is transmitted—on the company’s website, which describes



       9 “Engineer” is elsewhere similarly defined, inter alia, as “a person who designs or
builds engines or other machinery, . . . a person who uses specialized knowledge or skills to
design, build, and maintain complicated equipment, systems, processes” or “a person
considered to have specialized knowledge or skills in a particular field, esp. one who attempts
to influence or manipulate human affairs according to scientific or technical principles.”
Oxford English Dictionary       (online ed.) http://www.oed.com/view/Entry/62225?result=
1&rskey=Lbxzu5&#contentWrapper. “Inherent” is defined as “fixed, situated, or contained
in something” or “existing in something as a permanent attribute or quality; forming an
element.”    Id. (online ed.)        http://www.oed.com/view/Entry/95945?redirectedFrom=
inherent#eid.
       10 Am. Acad., 860 F.3d at 307–08 (“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 organi-
zation responsible for conferring specialist credentials on a particular dentist is not identified
in the advertisement.”); see also Byrum, 566 F.3d at 447.
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                                         No. 18-60144
its automotive services (not any professional engineering services), and at its
retail stores, which appear like any other store that performs automotive
services . . . .” Consequently, viewing the evidence in a light most favorable to
the non-moving party 11—here, Express—the use of Tire Engineers is not
inherently misleading under our precedent. 12

                                   2. Actually Misleading
       The district court separately determined that “[Express’s] use of ‘Tire
Engineers’ is also actually misleading to Mississippi consumers and is not pro-
tected by the First Amendment.” The court pointed to evidence from the tele-
phonic public opinion poll commissioned by the Board, including that “[a]lmost
half of the respondents (47.8%) believed that a company [using] the name ‘Tire
Engineers’ performs engineering services for tires.” The court ultimately con-
cluded that this “survey confirmed that Mississippi consumers are actually
deceived by the business name ‘Tire Engineers.’”

       Express maintains that Tire Engineers is not actually misleading



       11 The Board’s survey cuts both ways with respect to this court’s analysis of the term
“inherently misleading.” For example, researchers asked the following: “The company ‘Tire
Engineers’ advertises that it has ‘qualified personnel’ to repair tires. As a result of this adver-
tising how strongly do you expect the following[:] . . . That the company, Tire Engineers, is
performing engineering services.” Forty-four percent of those surveyed responded that they
“[n]ot [v]ery [s]trongly or [n]ot at all [e]xpect[ed]” Tire Engineers to perform such services or
that they were “unsure.” Additionally, though “[j]ust over one-half of all respondents with
an opinion, [fifty-five percent], suggested they believed a company that uses the name ‘Tire
Engineers’ performs engineering services for tires,” nearly forty-five percent of respondents
stated that they did not share this belief. While this suggests that the name is potentially
misleading, it also suggests that the name is not inherently—that is, its essential character
is not—misleading.
       12Conversely, because we review cross-motions for summary judgment independently,
we must also analyze this issue in a light most favorable to the Board. Such an exercise
involves dismissing, as the district court did, the findings of the Alabama, Florida, Georgia,
North Carolina, South Carolina, Tennessee, and Virginia agencies that “Tire Engineers” is
not inherently misleading. Even in such a case, however, the evidence is insufficient to sup-
port a conclusion that the name at issue is inherently misleading.
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                                       No. 18-60144
because the Board failed to submit evidence of “any actual consumer being
misled by the Tire Engineers trademark.” Express highlights a case that found
the use of the trade name “Cajun Boy” was not actually misleading because
“[t]he record contain[ed] no evidence of actual deception.” Piazza’s Seafood
World, LLC v. Odom, No. Civ. A. 04-690, 2004 WL 2998575, at *5 (E.D. La.
Dec. 23, 2004). We affirmed “the district court’s decision as to the Cajun
Statute essentially for the reasons stated by the district court.”                   Piazza’s
Seafood World, LLC v. Odom, 448 F.3d 744, 753 (5th Cir. 2006).

       In response, the Board asserts that “[a]mple and uncontradicted sum-
mary judgment evidence establishes that the name Tire Engineers actually
misleads Mississippi consumers into believing that the work done by Tire
Engineers is either performed by engineers or under the supervision of engin-
eers.” The Board contends that the survey evidence it submitted was sufficient
to sustain a finding that the public was actually misled by this commercial
speech. It defends, at some length, the survey methodology, ultimately con-
cluding that “[u]nder no evaluation of the record would [Express] be entitled to
summary judgment.”

       A review of Supreme Court and Fifth Circuit precedent shows that the
district court erred in deciding that the Tire Engineers name is actually mis-
leading. In Peel, a four-Justice plurality suggested that evidence of deception
is necessary to sustain a finding that commercial speech is actually
misleading—a conclusion that the concurring and dissenting justices did not
dispute. 13 Based on Peel, as well as our own precedent, Joe Conte Toyota,



       13 Peel, 496 U.S. at 106 (plurality opinion) (“Given the complete absence of any evi-
dence of deception in the present case, we must reject the contention that petitioner’s letter-
head is actually misleading.”). Additionally, three Justices in dissent appeared to adopt the
plurality’s “actually misleading” standard, although they took issue with other parts of the
plurality opinion. Id. at 120 (O’Connor, J., dissenting) (“The plurality in this case correctly
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                                       No. 18-60144
24 F.3d at 756, the Board was required to present evidence of deception.
Because it did not, the district court erred in concluding that the Tire Engin-
eers mark was actually misleading. 14 Given that the name is neither actually
nor inherently misleading, it enjoys limited First Amendment protections, as
discussed in Central Hudson.

                               3. Potentially Misleading
       The district court also determined that the name is potentially mislead-
ing, even under Central Hudson. Finding that the evidence in the record satis-
fied Central Hudson scrutiny, the court emphasized two harms remedied by
“[p]rohibiting [Express] from promoting itself as ‘Tire Engineers.’” “First, a
majority of Mississippians believe that the work performed by [Express] is of
the same skill, judgment, and quality associated with licensed, professional
engineers.” Second, “[Express’s] use of the name ‘Tire Engineers’ and its de-
scription of its employees as ‘tire engineers’ leads to confusion about the qual-
ifications and skill of actual licensed engineers.”

       Express contends that Tire Engineers is not potentially misleading
because “[i]t is apparent to all reasonable consumers who encounter the Tire
Engineers trademark in [the context of the company’s website and retail
stores] that the company provides routine automotive maintenance and
repair.” Additionally, even if the name is potentially misleading, Express
maintains that “a complete ban on the Tire Engineers name and mark is ‘more



notes that the statements in petitioner’s letterhead have not been shown actually to deceive
consumers . . . .”). In a concurring opinion, two other justices suggested that the “actually
misleading” standard requires proof that someone was actually misled by the speech.
Id. at 112 (Marshall, J., concurring).
       14Again, even when the evidence is independently viewed in a light most favorable to
the Board, there is no evidence in the record, including the affidavits of Josh Henderson, the
decisions of the other state agencies, the news articles and website captures, and the survey,
to support a holding of actual deception.
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                                  No. 18-60144
extensive than is necessary to serve [the Board’s] interest’” (quoting Am. Acad.,
860 F.3d at 306). Express instead asserts that “a simple point-of-sale dis-
claimer that ‘Tire Engineers does not employ professionally-licensed engineers
or provide engineering services’” (similar to that required by the state board in
Texas) would be “sufficient to serve the Board’s interest without suppressing
Tire Engineers’ speech.”

      Conversely, the Board avers that “[t]he district court correctly found the
name Tire Engineers to be potentially misleading and the State’s restriction to
be constitutional . . . .” The Board objects to Express’s claim that the name
Tire Engineers is not potentially misleading, pointing to evidence in the
record—including the telephonic survey and the extensive “use of the phrase
‘tire engineer’ to refer to actual engineers”—that seemingly indicates
otherwise.

      “Under Central Hudson, a restriction on commercial speech survives
First Amendment scrutiny if: (1) ‘the asserted governmental interest is sub-
stantial,’ (2) the regulation ‘directly advances’ that interest, and (3) the regu-
lation ‘is not more extensive than is necessary to serve that interest.’” Pub.
Citizen, 632 F.3d at 219 (quoting Thompson v. W. States Med. Ctr., 535 U.S.
357, 367 (2002)). “Each of these latter three inquiries must be answered in the
affirmative for the regulation to be found constitutional.” Thompson, 535 U.S.
at 367.

      As a threshold matter, the evidence in the record, particularly the tele-
phonic survey, is more than sufficient to support a determination that the Tire
Engineers trademark is potentially misleading. Turning, then, to the first
inquiry, the district court correctly held that the Board has a substantial
interest in “ensuring the accuracy of commercial information in the market-
place” (quoting Pub. Citizen, 632 F.3d at 220). The court also determined that

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                                  No. 18-60144
the Board has a substantial interest in “‘maintaining standards of ethical
conduct in the licensed professions’ and in the trust placed in those standards
by the public” (quoting Pub. Citizen, 632 F.3d at 220).

      Express does not appear to take issue with those conclusions. Accord-
ingly, the evidence in the record establishes that the asserted interests of the
Board are substantial.

      The district court noted that to satisfy the “directly advances” inquiry,
the Board was required to “demonstrate that the harms it recites are real and
that its restriction will in fact alleviate them to a material degree” (quoting
Pub. Citizen, 632 F.3d at 221). In determining that the restriction did directly
advance the substantial interests of the Board, the court pointed to evidence
from the public opinion survey showing that Mississippians are misled con-
cerning whether Tire Engineers “(1) uses actual tire engineers to perform its
services, (2) is offering engineering services, and/or (3) performs its work with
the level of skill and training of an actual engineer.” The court concluded that
“[p]rohibiting [Express] from advertising itself as ‘Tire Engineers’ would allevi-
ate each of these three separate harms to a material degree.” Because Express
does not dispute the court’s determination on this point, the evidence supports
a holding that the ban directly advances the Board’s asserted interest.

      The final inquiry is whether the regulation is “‘more extensive than is
necessary to serve’” the identified interest. Pub. Citizen, 632 F.3d at 219 (quot-
ing Thompson, 535 U.S. at 367). “‘[T]he free flow of commercial information is
valuable enough to justify imposing on would-be regulators the costs of dis-
tinguishing . . . the harmless from the harmful . . . .’” Bd. of Trs. of State Univ.
of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (quoting Shapero v. Ky. Bar Ass’n,
486 U.S. 466, 478 (1988)). The means employed by the government actor need
not be the “least restrictive means,” but it must be “narrowly tailored to achieve

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                                        No. 18-60144
the desired objective.” Id.

       In Byrum, 566 F.3d at 449, concerning the terms “interior design” and
“interior designer,” we held that “the State could have eliminated any consti-
tutional challenge here by not limiting use of the terms ‘interior design’ and
‘interior designer’ but by allowing only designers who satisfy its licensing qual-
ifications to represent themselves as ‘licensed’ interior designers.” See also
Am. Acad., 860 F.3d at 311–12. Further, this court and others have identified
“[s]ufficient disclaimers [as] a means to address consumer deception.” 15 This
remedy seemingly derives from Peel, Bates, and earlier Supreme Court cases
that “described various regulatory safeguards which the state may impose in
place of [a] total ban on commercial speech.” Abramson, 949 F.2d at 1577.

       The record does not support the need for a total ban on the use of Tire
Engineers. Evidence offered by both parties, particularly when viewed in the
light most favorable to Express as the non-moving party, demonstrates that
other states with similar statutes have not challenged the use of the trade-
mark. 16 Thus, despite claims to the contrary, the Board is an outlier in this
respect, and it fails to address why alternative, less-restrictive means, such as
a disclaimer, would not accomplish its stated goal of protecting the public. The
Board thereby fails to satisfy the required burden of demonstrating a reasona-
ble fit between its regulation and the constitutionally-protected speech.

       Accordingly, the district court erred in ruling for the Board. 17                   The


       15  Am. Acad., 860 F.3d at 311; Abramson v. Gonzalez, 949 F.2d 1567, 1575–78 (11th
Cir. 1992) (finding unconstitutional a Florida law regulating the use of the term “psycholo-
gist”); see also Peel, 496 U.S. at 110; Bates v. State Bar of Ariz., 433 U.S. 350, 384 (1977).
       16These states include Alabama, Georgia, Florida, North Carolina, South Carolina,
Tennessee, and Virginia. Texas permitted Express to use the Tire Engineers name and mark
provided it “affix[es] a physical disclaimer on each Texas location indicating it neither offers
nor provides engineering services in the state of Texas.”
       17   Moreover, an independent review of the record—this time considering the evidence
                                              14
    Case: 18-60144       Document: 00514841512          Page: 15     Date Filed: 02/19/2019



                                       No. 18-60144
summary judgment is REVERSED, and judgment is RENDERED for
Express. 18




in a light most favorable to the Board—still yields the conclusion that the means employed
were more restrictive than necessary to achieve the Board’s desired ends. We are not, how-
ever, “suggest[ing] that the Board may not impose appropriate restrictions in [this] area.”
Am. Acad., 860 F.3d at 312. “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 dif-
ferent evidence.” Pub. Citizen, 632 F.3d at 221.
       18We do not reach the issue of whether Sorrell v. IMS Health Inc., 564 U.S. 552 (2011),
altered the commercial speech analysis because the Board’s ban fails to meet the traditional
scrutiny test outlined in Central Hudson.
                                             15
