                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2016-SA-00110-SCT

ANDY BARLOW, D.C.

v.

MISSISSIPPI STATE BOARD OF
CHIROPRACTIC EXAMINERS


DATE OF JUDGMENT:                           03/20/2015
TRIAL JUDGE:                                HON. TOMIE T. GREEN
TRIAL COURT ATTORNEYS:                      LEYSER Q. HAYES
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    JOHN H. OTT
                                            TODD BRENTLEY OTT
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: LEYSER Q. HAYES
                                                WILLIAM JEFFREY JERNIGAN
                                                DAVID K. SCOTT
NATURE OF THE CASE:                         CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            RENDERED IN PART - 05/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.

       KING, JUSTICE, FOR THE COURT:

¶1.    Dr. Andy Barlow was disciplined by the Mississippi State Board of Chiropractic

Examiners for advertising in violation of the statutes governing chiropractors. Dr. Barlow

appealed to the circuit court, alleging that the statute governing chiropractic advertising had

been implicitly amended or repealed, that the statute governing chiropractic advertising
violated his First Amendment rights, and that the Board was without authority to assess the

costs of the investigation to him. The circuit court affirmed the Board, and Dr. Barlow

appealed to this Court, making the same arguments, as well as arguing that the circuit court

erred by failing to afford him a “de novo appeal.” Because Dr. Barlow’s arguments on

whether he should be disciplined lack merit, this Court affirms the judgments of the Board

and circuit court on those issues. However, because the Board lacked authority to directly

assess Dr. Barlow the costs of its investigation, this Court reverses the judgments of the

circuit court and Board on the issue of costs and renders judgment for Dr. Barlow on that

issue.

                        FACTS AND PROCEDURAL HISTORY

¶2.      Based upon two1 patient complaints against Dr. Andy Barlow, D.C., the Mississippi

State Board of Chiropractic Examiners brought a formal complaint against Dr. Barlow. The

complaint charged Dr. Barlow with several violations,2 including violations surrounding his

advertising.    The complaint alleged that Dr. Barlow advertised using professional

designations other than “chiropractor,” “doctor of chiropractic,” “D.C.,” or “chiropractic

physician” in violation of Mississippi Code Sections 73-6-25(1)(a) and 73-6-19(1)(b).

¶3.      At the hearing on the complaint, the advertisements, in which Dr. Barlow advertised




         1
       One of those patients did not attend the hearing, and the Board thus did not address
her complaints, and none are at issue in this appeal.
         2
        The Board found that clear and convincing evidence was not established for any of
the alleged violations, except for the advertising violations. The other violations are not at
issue in this appeal.

                                              2
as D.C., and also as DACNB,3 FACFN,4 and as a “Chiropractic Neurologist,” were entered

into evidence. Dr. Barlow and Dr. Patterson, the Board member assigned to investigate the

complaint, both testified that Dr. Barlow’s certifications in neurology required 1,600 hours

of continuing education to achieve. Dr. Patterson testified that “[h]aving a chiropractic

neurology degree would have – you would have a much better understanding of neurological

issues that may be going in the body and be able to recognize other issues.” The patient who

made the complaint stated that she was confused by the advertisements as a “board certified

chiropractic neurologist.” She noted that the emphasis was on “neurologist” and that

“chiropractic” seemed like a mere adjective.

¶4.    On March 31, 2014, the Board issued its final order. The Board concluded that “[t]he

clear and convincing evidence establishes cause to discipline the Respondent under Section

73-6-19(1)(b) for violations of Section 73-6-25(1)(a) by using professional designation in his

printed advertisements other than the term ‘chiropractor,’ ‘doctor of chiropractic,’ ‘D.C.,’ or

‘chiropractic physician.’” The Board ordered that “[a] monetary penalty is imposed upon the

Respondent in the amount of Five Hundred Dollars ($500.00).” It also ordered that “[t]he

Respondent shall pay to the Board the costs associated with its investigation and prosecution

of this matter in the amount of $3216.00.” On April 1, 2014, counsel for Dr. Barlow wrote

the Board and asked the Board to provide him with the legal authority for the Board’s

assessment of investigative expenses, and also noted that the order contained no breakdown



       3
        DANCB stands for “Diplomate of the American Chiropractic Neurology Board.”
       4
        FACFN stands for “Fellow of the American College of Functional Neurology.”

                                               3
of the costs assessed. In an undated letter, the Board responded that in assessing the

monetary penalty, the Board considers the cost of investigation. It stated that Dr. Barlow

committed at least five separate violations of Section 73-6-25(1). It concluded that “[i]f this

explanation is not satisfactory to you and Dr. Barlow, the Board can correct its Order to

reflect the full monetary penalty authorized by Section 73-6-19.”

¶5.    On April 24, 2014, Dr. Barlow appealed to the Hinds County Circuit Court. After

briefing on the issue, the circuit court entered an order affirming the decision of the Board

in full. It stated that “[i]t is not the position of this Court to act as a fact finder.” It continued

that

       [i]n this case, the Board believed the facts conclusively proved the Appellant’s
       discipline and subsequent monetary penalty was for good cause. Having
       reviewed the record and being otherwise thoroughly advised in the premises,
       the Court finds that the Board followed the statute, and likewise opines that
       Appellant’s disciplinary action was made in ‘good faith for cause’ and
       supported by substantial evidence.
               IT IS, THEREFORE, ORDERED and ADJUDGED that there was
       substantial evidence before the Board to support its order and that the Board’s
       order was not arbitrary and capricious, was not beyond the power of the
       administrative agency to make, nor did it violate some statutory or
       constitutional rights of the Appellant.

It consequently did not find error in the Board’s actions.

¶6.    Dr. Barlow appeals to this Court, raising several issues: 1) whether the circuit court

erred in failing to act as factfinder when Dr. Barlow was entitled to a “de novo appeal;” 2)

whether Section 73-6-25(1)(a) was amended or repealed by implication by Section 41-121-1,

et seq.; 3) whether Section 73-6-25(1)(a) impermissibly infringes on Dr. Barlow’s First

Amendment right to free speech; and 4) whether the Board’s decision, particularly regarding



                                                  4
costs assessed, was unsupported by substantial evidence, was arbitrary and capricious, was

beyond the scope or power granted the agency by the Legislature, and violated Barlow’s

statutory and constitutional rights.

                                        ANALYSIS

1. Standard of Review

¶7.    To be entitled to reversal of an agency decision, the aggrieved party must show that

1) the decision was not supported by substantial evidence, 2) the decision was arbitrary and

capricious, 3) the decision was beyond the power of the administrative agency, or 4) the

decision violated the party’s statutory or constitutional rights. Equifax, Inc. v. Miss. Dep’t

of Revenue, 125 So. 3d 36, 41 (Miss. 2013). “This Court reviews questions of law de novo.”

Id. We therefore review Dr. Barlow’s first three issues de novo, and his fourth to determine

whether the Board’s decision was supported by substantial evidence, was arbitrary and

capricious, was beyond the power of the agency, or violated Barlow’s rights.

2. De Novo Appeal

¶8.    The statutory provision regarding appeal from a disciplinary decision of the Board

provides that, within thirty days of the decision, the aggrieved party “shall have the right of

a de novo appeal to the circuit court.” Miss. Code Ann. § 73-6-19(5) (Rev. 2012). Dr.

Barlow contends that this “de novo appeal” requires the circuit court to act as factfinder on

the administrative record before it.

¶9.    In Equifax, this Court examined a statute that provided that the chancery court, in

appeals from the Mississippi State Tax Commission, “shall try the case de novo and conduct



                                              5
a full evidentiary judicial hearing on the issues raised.” Equifax, 125 So. 3d at 41 (quoting

Miss. Code Ann. § 27-77-7(4) (2005)). The Court found that, even though the law said “de

novo,” the

       petitioner must raise and prove one or more of the following: the agency’s
       decision was unsupported by substantial evidence, the agency’s decision was
       arbitrary and capricious, the agency’s decision was beyond the power of the
       administrative agency to make, and/or the agency’s decision violated the
       complaining party’s statutory or constitutional right.

Id. Thus, the issues to be tried “de novo” under the statute are to be tried within the confines

of the deference given to agency decisions. The Court noted that confusion may stem from

the statute’s instruction to “try the case de novo” because “de novo” means “anew,” and

“anew” means a second time, afresh. Id. at 42. The Court explained that the court hearing

was actually the first hearing conducted before a judicial tribunal, thus “[i]n the absence of

a prior proceeding, no trial anew can occur.” Id. “In the absence of a prior proceeding, no

trial anew can occur. Thus, the instruction to ‘try the case de novo’ is misdirected.” Id.

¶10.   This concept applies with even more force to Section 73-6-19(5). The original

(nonjudicial) proceeding was before the Board. The appeal from the Board to the circuit

court is the first appeal. Thus, there can be no appeal “anew” in the absence of a prior appeal

and the instruction that the petitioner has a right to a “de novo appeal” is misdirected. The

appeal is for the limited purpose of examining whether the Board’s “decision was supported

by substantial evidence, was not arbitrary and capricious, was within the [Board’s] power to

make, and did not violate [Dr. Barlow’s] statutory and constitutional rights.” Id. Thus,

because Dr. Barlow was not entitled to have the circuit court act as factfinder on the



                                               6
administrative record before it, this issue is without merit.

3. The Effect of Section 41-121-1, et seq., on Section 73-6-25(1)(a)

¶11.   Section 73-6-25(1)(a) provides that “[t]he members of the chiropractic profession,

licensed or unlicensed, are hereby prohibited from . . . use of any other professional

designation other than the term ‘chiropractor,’ ‘doctor of chiropractic,’ ‘D.C.’ or

‘chiropractic physician[.]’” Miss. Code Ann. § 73-6-25(1)(a) (Rev. 2012).

¶12.   In 2012, the Legislature passed “The Patient’s Right to Informed Health Care Choices

Act.” Miss. Code Ann. § 41-121-1 (Rev. 2013). The Act states:

       The Legislature finds and declares that:

              (a) There are a multitude of professional degrees using the term
              “doctor,” including Medical Doctor (M.D.); Doctor of Osteopathic
              Medicine (D.O.); Doctor of Dental Surgery (D.D.S.); Doctor of
              Podiatric Medicine (D.P.M.); Doctor of Optometry (O.D.); Doctor of
              Chiropractic (D.C.); Doctor of Nursing Practice (D.N.P.); Doctor of
              Pharmacy (Pharm.D.); and other designations which may be used by
              health care practitioners.

              (b) Choosing a health care provider is one of the most important
              decisions a patient makes, which should be supported by full disclosure
              from their health care provider. There are differences regarding the
              training and qualifications required to earn the professional degrees
              described in and subject to this chapter. These differences often
              concern the training and skills necessary to correctly detect, diagnose,
              prevent and treat serious health care conditions.

              (c) There is a compelling state interest in patients being promptly and
              clearly informed of the actual training and qualifications of their health
              care practitioners who provide health care services. This chapter aims
              to provide public protection against potentially misleading and
              deceptive health care advertising that cause patients to have undue
              expectations regarding their medical treatments and outcomes.

Miss. Code Ann. § 41-121-3 (Rev. 2013). The Act goes on to define the categories of health


                                              7
care practitioners and includes “[p]ractitioners of chiropractic, signified by the letters ‘D.C.’

or the words chiropractor, doctor of chiropractic or chiropractic physician.” Miss. Code Ann.

§ 41-121-5 (c)(v) (Rev. 2013). The Act requires that “[a]n advertisement for health care

services that names a health care practitioner must identify the type of license held according

to the definitions under this chapter. The advertisement shall be free from any and all

deceptive or misleading information.” Miss. Code Ann. § 41-121-7(1) (Rev. 2013).

¶13.   Dr. Barlow argues that the provision in Section 41-121-3 providing for “a compelling

state interest in patients being promptly and clearly informed of the actual training and

qualifications of their health care practitioners” requires him to inform his patients of his

DACNB and other certifications, and thus implicitly repeals or amends the provision of

Section 73-6-25(1)(a) that restricts chiropractors to a short list of titles. The Board focuses

its rebuttal argument on the concept that Section 41-121-3 does not implicitly repeal or

amend Section 73-6-25. But this Court need not even perform that analysis, because Section

41-121-3 simply does not mean what Dr. Barlow claims it means.

¶14.   The Act very clearly has the purpose of ensuring that patients can differentiate among

the different types of doctors. Indeed, the Act requires that advertisements must identify the

type of license held according to the Act’s definitions. Miss. Code Ann. § 41-121-7(1) (Rev.

2013). The only license that the record reveals that Dr. Barlow holds is a doctor of

chiropractic. His additional certifications are not licenses. Nor are they included in the Act’s

definitions, which identify only the category of “practitioners of chiropractic.” The Act in

no way requires that a practitioner reveal every certification he or she possesses. Taken to



                                               8
its logical conclusion, Dr. Barlow’s interpretation of Section 41-121-3 would even require

that he reveal his certification as a Diplomat of Pastoral Science from the Pastoral Medical

Association. Viewing the Act as a whole, instead of one sentence in isolation, it is very clear

that the purpose of the Act is for the various types of doctors to reveal the type of doctors

they are, i.e., to reveal the particular licenses they hold, so that a patient will not, for example,

show up to a dentist’s office for prenatal care. Because Section 41-121-3 is completely

consistent with Section 73-6-25, and because Dr. Barlow’s interpretation of Section 41-121-3

is simply incorrect, Section 41-121-3 clearly does not repeal or amend, implicitly or

otherwise, Section 73-6-25.

4. First Amendment

¶15.   Dr. Barlow argues that Section 73-6-25 impermissibly infringes on his First

Amendment right to free speech. First Amendment protection has been extended to

commercial speech. In re R.M.J., 455 U.S. 191, 199, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982).

The government may proscribe commercial speech that is misleading or related to unlawful

activity. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447

U.S. 557, 563-64, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). Specifically, advertising for

professional services presents special possibilities for deception due to the “public’s

comparative lack of knowledge, the limited ability of the professions to police themselves,

and the absence of any standardization in the ‘product.’” In re R.M.J., 455 U.S. at 202.

Thus, advertising for professional services is “especially susceptible to abuses that the States

have a legitimate interest in controlling.” Id. Therefore, “regulation – and imposition of



                                                 9
discipline – are permissible where the particular advertising is inherently likely to deceive

or where the record indicates that a particular form or method of advertising has in fact been

deceptive.” Id. If the advertising is not misleading, the State must assert a substantial

interest in regulating the speech, and the interference “must be in proportion to the interest

served.” Id.

¶16.   In this case, the testimony of three witnesses, the patient, and Drs. Patterson and

Rutherford, evinced that the advertisements at issue were misleading. Dr. Barlow did not

define the acronyms he placed behind his name, and he referred to himself as a “chiropractic

neurologist,” which the witnesses testified led to confusion for patients that they were seeing

a medical doctor. Because evidence exists that the advertisements at issue were actually

misleading, this Court need not analyze the issue further. Based on the specific facts of this

case, the discipline for the advertisements did not violate Dr. Barlow’s First Amendment

rights.5

       5
         We do not hold that Section 73-6-25 may never infringe upon First Amendment
rights, but simply that it does not do so in this particular case. We note that the United States
Supreme Court has frowned upon absolute restrictions on advertising regarding
certifications. “[T]he States may not place an absolute prohibition on certain types of
potentially misleading information, e.g., a listing of areas of practice, if the information also
may be presented in way that is not deceptive.” Id. at 203; see also Peel v. Attorney
Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed.
2d 83 (1990) (plurality opinion) (finding an absolute bar on lawyer advertising a certification
violated the First Amendment, where there was no showing that the burden on the bar
association of distinguishing between certifying boards that are bona fide and those that are
bogus would be significant, and where there was “a complete absence of any evidence of
deception in the present case.”); see also American Acad. of Pain Mgmt. v. Joseph, 353
F.3d 1099 (9th Cir. 2004) (California legislature could regulate which medical professionals
could use the designation “board certified” by determining which boards met certain
qualifications; the court noted that the legislature did not ban medical professionals from
advertising that they had a certification from a nonqualifying board or organization; the

                                               10
5. Costs

¶17.   Dr. Barlow argues that the Board’s assessment of a $3,216 fee for “the costs

associated with its investigation and prosecution of this matter” was beyond the Board’s

statutory authority, and was not supported by substantial evidence. The Board makes several

arguments in response. First, it argues that the Board is allowed to consider the costs of

investigation in determining the amount of penalties. Second, the Board alleges in its brief

that Dr. Barlow committed at least eight violations, and that for each of these the Board was

allowed to assess a $500-$1,000 penalty, thus the total of $3,216 was less than what it was

allowed to assess. Third, the Board seems to argue that it offered in its letter to correct the

terminology in its order, and that Dr. Barlow should have allowed it to do so and wrongly

prevented it from doing so by filing his appeal. Dr. Barlow is correct that the Board lacked

authority to directly assess him the costs of the investigation, and each of the Board’s

arguments will be addressed below.

¶18.   The governing statute allows the Board to assess monetary penalties for violations

found.6 However, it does not explicitly allow the Board to assess the costs of the


legislature had simply prohibited them from using the words “board certified” in that case).
Barlow did not place evidence other than his own testimony in the record that this
certification was indeed a reliable certification from a bona fide organization. Under the
particular facts of this specific case, we simply cannot find a First Amendment violation.
       6
        The statute provides that, in lieu of revocation, suspension, or cancellation of a
license, the Board may levy

       (a) For the first violation, a monetary penalty of not less than Five Hundred
       Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for each
       violation.
       (b) For the second and each subsequent violation, a monetary penalty of not

                                              11
investigation to the party disciplined. The Legislature has clearly and explicitly allowed the

governing bodies of many professions to recoup the costs of an investigation.7 While it is

problematic that the Board may be discouraged from investigating if it cannot recoup fees,

and while it is entirely possible that the lack of authority for the chiropractic board, as well

as for several other professional boards, to recoup those fees may be a mere oversight by the

Legislature, this Court cannot read that authority into the statute where it does not exist.8 The

Legislature has shown that, when it wants to specifically provide that a professional

governing body can recoup investigatory costs, it is perfectly willing to do so.

¶19.   The Board argues that in assessing a penalty for each violation, it is allowed to



       less than One Thousand Dollars ($1,000.00) nor more than Two Thousand
       Five Hundred Dollars ($2,500.00) for each violation.

Miss. Code Ann. § 73-6-19(6) (Rev. 2012).
       7
        The Legislature has specifically provided that the governing bodies of many
professions may recoup the costs of an investigatory proceeding from the party disciplined.
See, e.g., Miss. Code Ann. § 73-1-29(7) (architects); Miss. Code Ann. § 73-2-16(8)
(landscape architects); Miss. Code Ann. § 73-4-19(7) (auctioneers); Miss. Code Ann. § 73-9-
61(4)(d) (dentists); Miss. Code Ann. § 73-11-57(6)(d) (funeral services providers); Miss.
Code Ann. § 73-13-37(7) (engineers); Miss. Code Ann. §§ 73-13-89 & 73-13-37 (land
surveyors); Miss. Code Ann. § 73-17-15(1)(b) (nursing home administrators); Miss. Code
Ann. § 73-21-103(1)(d)(iii) (pharmacists); Miss. Code Ann. § 73-23-64(7) (physical
therapists); Miss. Code Ann. § 73-25-30 (physicians); Miss. Code Ann. § 73-33-11(5) (public
accountants); Miss. Code Ann. § 73-42-34(3) (athlete agents); Miss. Code Ann. § 73-53-
23(7) (social workers); Miss. Code Ann. §§ 73-54-29 & 73-53-23 (marriage and family
therapists); Miss. Code Ann. § 73-63-43(7) (geologists); Miss. Code Ann. § 73-67-27(3)(d)
(massage therapists); Miss. Code Ann. § 73-73-31(8) (interior designers); Miss. Code Ann.
§ 73-75-19(2) (behavior analysts).
       8
       To the extent this may be an oversight by the Legislature, we encourage the
Legislature to update the statute; however, this Court cannot add to the statute what the
Legislature did not provide.

                                               12
consider the costs of its investigation. The Board has wide discretion in determining what

penalty, between $500 and $1,000, to assess. Certainly, the Board may consider its costs

when determining the penalty, and this Court recognizes the Board’s right so to do. But, by

the very plain language of the Board’s final order, that is not what occurred here. It simply

did not make the findings in this case to support that the costs were part of the penalty

assessed. The Board assessed Dr. Barlow a $500 penalty under the statute, and then

separately charged him a $3,216 fee that was specifically described as serving to recoup the

costs associated with the investigation. The fee was explicitly and specifically separated

from the statutory penalty the Board dealt Dr. Barlow.9 Thus, it is clear that this was not a

penalty within which the Board considered its costs. It was a fee separate and apart from the

penalty assessed.

¶20.   Second, the Board essentially argues that the penalty is harmless error, because it is

less than what it could have assessed Dr. Barlow for his at least eight violations. The

problem with this argument is that the Board made utterly no findings in its order or

otherwise as to how many violations Dr. Barlow committed. In fact, it explicitly fined him

for only one violation, by assessing the $500 penalty, and only one $500 penalty. In its

undated letter to Dr. Barlow, the Board claimed that Dr. Barlow had committed at least five

violations. Now, in its brief on appeal, that number has changed again to at least eight




       9
       It even stated that Dr. Barlow “must pay the monetary penalty and costs assessed
herein within thirty (30) working days following the date of the entry of this Final Order.”
(Emphasis added.)

                                             13
violations. Yet, the findings of fact must govern,10 and the findings of fact do not quantify

the number of violations. Thus, this Court cannot know for certain how many violations the

Board found at its hearing, and the penalty the Board assessed indicates it found only one.

This argument therefore fails.

¶21.   The Board also alleges that Dr. Barlow should have told it that he wanted it to correct

the terminology in its order. Dr. Barlow had thirty days to appeal the order. Miss. Code

Ann. § 73-6-19(5) (Rev. 2012). He appealed the order to the circuit court on the twenty-

fourth day, so he certainly was not rushing to circumvent Board action. Moreover, the record

contains no indication as to the date the Board asked Dr. Barlow to request a correction to

its final order. It may be that the letter was sent after he had filed his appeal. The Board

cannot claim the benefit of an undated letter, with no indication in the record as to when the

letter was sent and/or received. Moreover, the argument that Dr. Barlow was required to

request that the Board correct its order, especially when the order was clear in the first place,

is spurious.

¶22.   Because assessing the costs of investigation to Dr. Barlow was beyond the power of

the Board, and because the order clearly and specifically stated that the $3,216 fee was for

costs of the investigation, specifically distinguishing the fee from the statutory monetary

penalty assessed, and because the Board failed to make any findings regarding the number

of violations committed by Dr. Barlow (which is especially noteworthy given that the Board



       10
          The changing number of violations alleged by the Board over the course of this
litigation, from no specified number to at least five to at least eight, illustrates why the
administrative record and findings of fact must govern.

                                               14
has since changed its argument from Dr. Barlow having committed at least five violations

to Dr. Barlow having committed at least eight violations), this Court reverses and renders the

$3,216 assessed to Dr. Barlow in this case.

                                      CONCLUSION

¶23.   This Court affirms the judgments of the Board and circuit court in part, and reverses

and renders in part. Dr. Barlow’s arguments regarding the standard of review of the circuit

court, the implicit repeal of Section 73-6-25, and the violation of his First Amendment rights

are all without merit. However, the Board did not have the authority to impose the costs of

the investigation directly on Dr. Barlow and this Court reverses and renders the $3,216

assessment in favor of Dr. Barlow.

¶24. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

    WALLER, C.J., RANDOLPH, P.J., KITCHENS, COLEMAN, MAXWELL,
BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J.

       DICKINSON, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶25.   A commercial advertisement may be false or—as in the case before us—truthful. A

factfinder may find a truthful advertisement to be actually misleading where it actually has

misled one or more members of the public. The factfinder may find the same advertisement

to be potentially misleading where no person actually claims to have been misled.

¶26.   For reasons unexplained by the United States Supreme Court, the First Amendment

provides protection for truthful advertisements that are potentially misleading, but no

protection where a single, random person—whether reasonably or not—claims to have been



                                              15
misled.11 In other words, the Supreme Court has concluded that identical speech in identical

contexts receives varying degrees of protection from the First Amendment based solely upon

a single random individual’s subjective confusion.

¶27.   In 1982, the Supreme Court held that “[t]ruthful advertising related to lawful activities

is entitled to the protections of the First Amendment,” and “States may not place an absolute

prohibition on certain types of potentially misleading information, e.g., a listing of areas of

practice, if the information also may be presented in a way that is not deceptive.”12

¶28.   When the Legislature enacted Mississippi Code Section 73-6-25, it did what the

United States Supreme Court has said it cannot do. Regardless of truth, legality, disclaimers,

or whether anyone actually has been misled, Section 73-6-25 imposes an absolute prohibition

against chiropractors using any professional designation other than those listed in the

statute.13 Thus, the Legislature has crafted a statute lacking adequate consideration for the

First Amendment concerns it creates.



       11
          In re R.M.J., 455 U.S. 191, 203, 102 S. Ct. 929, 937, 71 L. Ed. 2d 64 (1982)
(“Misleading advertising may be prohibited entirely. But the States may not place an
absolute prohibition on certain types of potentially misleading information.”); see also Peel
v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U.S. 91, 100–1, 110 S. Ct.
2281, 2288, 110 L. Ed. 2d 82 (1990) (“The facts stated on petitioner’s letterhead are true and
verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and
that three States have licensed him to practice law. There is no contention that any potential
client or person was actually misled or deceived by petitioner’s stationery.”).
       12
            In re R.M.J., 455 U.S. at 203 (emphasis added).
       13
         Miss. Code Ann. § 73-6-25(1)(a) (Rev. 2012) (“The members of the chiropractic
profession, licensed or unlicensed, are hereby prohibited from: (a) Making . . . use of any
other professional designation other than the term ‘chiropractor,’ ‘doctor of chiropractic,’
‘D.C.’ or ‘chiropractic physician. . . . .’”) (emphasis added).

                                              16
¶29.   According to In Re R.M.J., a statute may not ban truthful advertisements which have

not misled anyone, nor may it ban truthful advertisements with appropriate disclaimers. But

here, Section 73-6-25 survives by the skin of its teeth. Dr. Barlow’s advertising related to

a lawful activity—operating a chiropractic practice—and nothing suggests he lacked the

expertise he claimed, or that he does not possess the professional designation in his

advertisement: “Chiropractic Neurologist.” In fact, the Board’s own investigator testified

that Dr. Barlow’s “chiropractic neurology degree” required him to take an additional 1,600

hours of continuing education above that required of a Doctor of Chiropractic, and that a

person with “a chiropractic neurology degree would have -- you would have a much better

understanding of neurological issues that may be going in the body and be able to recognize

other issues.” And Dr. Barlow provided uncontradicted testimony that his area of expertise

included chiropractic neurology. So the question is whether Dr. Barlow’s “[t]ruthful

advertising related to lawful activities is entitled to the protections of the First

Amendment,”14 preventing the State from placing an absolute ban on it.

¶30.   One would think so. But, for reasons unapparent and seemingly inexplicable, the

United States Supreme Court has held that while “States may not place an absolute

prohibition on certain types of potentially misleading information,”15 they may place an

absolute prohibition on the exact same truthful commercial speech related to a lawful activity




       14
            In re R.M.J., 455 U.S. at 203.
       15
            Id.

                                             17
if it has actually misled or confused some customer or patient.16

¶31.   Here, the Board heard testimony from a single patient that Dr. Barlow’s advertisement

had confused her.      For that reason, and that reason alone, Section 73-6-25 is not

unconstitutional as applied in this case.       In other words, but for one individual’s

subjective—and arguably unreasonable—confusion, this statute as applied in this case would

violate the First Amendment because it does not allow for appropriate disclaimers to truthful

advertisements that potentially are misleading.

       COLEMAN, J., JOINS THIS OPINION.




       16
          Id. (“Misleading advertising may be prohibited entirely. But the States may not
place an absolute prohibition on certain types of potentially misleading information.”); see
also Peel, 496 U.S. at 100–1 (“The facts stated on petitioner’s letterhead are true and
verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and
that three States have licensed him to practice law. There is no contention that any potential
client or person was actually misled or deceived by petitioner’s stationery.”).

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