January 26, 2001

NO. 4-99-0876

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

Plaintiff, Joseph Snell, a licensed chiropractor, appeals from a September 1999 circuit court order affirming sanctionsimposed against him by defendants, the Illinois Department of Professional Regulation (Department) and its then-director,Nikki M. Zollar, based on Snell's violation of section 26 of the Medical Practice Act of 1987 (Act) (225 ILCS 60/26 (WestSupp. 1999)). Snell argues that (1) the Department's decision was against the manifest weight of the evidence; and (2)section 26, as applied to him, violates his first amendment right to free speech. Because we agree with Snell's secondargument, we reverse.

I. BACKGROUND

In December 1996, the Department filed an administrative complaint against Snell, which alleged, inter alia, that Snellviolated the advertising provisions set forth in section 26 of the Act (225 ILCS 60/26 (West Supp. 1999)) by displaying inhis office waiting room a 27-page booklet entitled "Our Patients Speak" (hereafter booklet). Section 26(2) of the Actprovides, in pertinent part, that "[i]t is unlawful for any person licensed under this Act to use testimonials or claims ofsuperior quality of care to entice the public." 225 ILCS 60/26(2) (West Supp. 1999).

At a June 1997 administrative hearing, the evidence showed that the booklet contained preprinted forms entitled "MyChiropractic Story." Each form contained 14 questions addressed to Snell's past or current patients. The questionsincluded the following: (1) "What led to your decision to try chiropractic?" (2) "Did you have any doubts that chiropracticwould help you?" (3) "What were your first impressions of chiropractic, this office, and the doctor?" (4) "Is anyone else inyour family a chiropractic patient?" (5) "How has chiropractic helped them?" (6) "What would you recommend to otherswho are sick, suffering, or in pain?" (7) "How do you feel about chiropractic, now that you have enjoyed its benefits?" Theanswers to the questions were supplied by the patients in their own handwriting, and each form was accompanied by thephotograph and signature of the patient.

Following the hearing, the administrative law judge (ALJ) issued her ruling and found that the booklet containedtestimonials in violation of section 26 of the Act. Based upon this finding, the ALJ recommended that Snell bereprimanded, pay a $2,500 fine, and complete certain continuing education courses. In September 1997, the Department'smedical disciplinary board adopted the ALJ's findings of fact, conclusions of law, and recommendations, and ordered thatSnell pay a $2,500 fine.

Snell subsequently sought administrative review of the Department's decision by the circuit court. In September 1999, thecircuit court upheld the Department's decision. This appeal followed.

II. FIRST AMENDMENT CHALLENGE

Initially, we note that constitutional questions will not be considered where the case can be determined on other,nonconstitutional grounds. See People v. McDaniel 164 Ill. 2d 173, 180, 647 N.E.2d 266, 269 (1995); see also Lacny v.Police Board, 291 Ill. App. 3d 397, 400, 683 N.E.2d 1265, 1267 (1997). However, because it appears that defendantswould prevail on the merits of Snell's nonconstitutional claim, we address Snell's constitutional argument.

Snell argues that by prohibiting his use of the booklet, section 26 violates his first amendment right to free speech. Weagree.

A. Protection of Commercial Speech

Constitutional protection for commercial speech is a relatively recent development in the Supreme Court's first amendmentjurisprudence. Prior to the mid-1970s, the Supreme Court adhered to the broad rule that the Constitution imposes norestraint on governments with respect to commercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed.1262, 1265, 62 S. Ct. 920, 921 (1942). In 1976, the Court changed course in Virginia State Board of Pharmacy v. VirginiaCitizens Consumer Council, Inc., 425 U.S. 748, 761-62, 48 L. Ed. 2d 346, 358, 96 S. Ct. 1817, 1825-26 (1976), holdingthat purely commercial speech is entitled to first amendment protection from unwarranted governmental regulation. TheCourt expressed the belief that the free flow of commercial information is indispensable to the proper allocation ofresources in a free enterprise system because it informs the numerous private decisions that drive the system. VirginiaState Board of Pharmacy, 425 U.S. at 765, 48 L. Ed. 2d at 360, 96 S. Ct. at 1827.

The Supreme Court has continued to define the appropriate constitutional protection afforded to commercial speech sinceits holding in Virginia State Board of Pharmacy. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 622-23, 132 L. Ed. 2d541, 548-49, 115 S. Ct. 2371, 2375 (1995) (listing history and holdings of the Court's commercial speech cases). However,even today, first amendment protection of commercial speech is not absolute. "'"[C]ommercial speech [enjoys] a limitedmeasure of protection, commensurate with its subordinate position in the scale of [f]irst [a]mendment values," and issubject to "modes of regulation that might be impermissible in the realm of noncommercial expression."'" Florida Bar, 515U.S. at 623, 132 L. Ed. 2d at 549, 115 S. Ct. at 2375, quoting Board of Trustees of State University of New York v. Fox,492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct. 3028, 3033 (1989), quoting Ohralik v. Ohio State Bar Ass'n, 436U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978).

B. Central Hudson's Four-Part Test

Restrictions on commercial speech are analyzed under the four-part test set out in Central Hudson Gas & Electric Corp. v.Public Service Comm'n, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 351, 100 S. Ct. 2343, 2351 (1980):

"At the outset, we must determine whether the expression is protected by the [f]irst [a]mendment. For commercial speechto come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether theasserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether theregulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary toserve that interest."

In further refinement of the Central Hudson test, the Supreme Court in In re R.M.J., 455 U.S. 191, 203, 71 L. Ed. 2d 64, 74,102 S. Ct. 929, 937 (1982), held that while the State may entirely prohibit misleading advertising, it may not absolutelyprohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive. Inaddition, the Supreme Court has noted that the four parts of the Central Hudson test are not entirely discrete. Greater NewOrleans Broadcasting Ass'n, 527 U.S. 173, 183-84, 144 L. Ed. 2d 161, 174, 119 S. Ct. 1923, 1930 (1999). "All areimportant and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the [f]irst[a]mendment inquiry, but the answer to which may inform a judgment concerning the other three." Greater New OrleansBroadcasting, 527 U.S. at 183-84, 144 L. Ed. 2d at 174, 119 S. Ct. at 1930 (1999).

1. The First Prong of the Central Hudson Test

At the outset, we conclude that the booklet constitutes commercial speech. See Central Hudson, 447 U.S. at 561-62, 65 L.Ed. 2d at 348, 100 S. Ct. at 2349 (commercial speech consists of "expression related solely to the economic interests of thespeaker and its audience" and of "'speech proposing a commercial transaction'"), quoting Ohrelik, 436 U.S. at 456, 56 L.Ed. 2d at 453, 98 S. Ct. at 1918.

Defendants do not contend that the booklet is actually deceptive, misleading, false, or illegal. Indeed, at oral argumentbefore this court, the Department conceded that the booklet itself is not deceptive, misleading, or false. Instead, theDepartment asserts that the testimonials in the booklet, like all testimonials, are "inherently misleading." We disagree.

In Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 523, 665 N.E.2d 1346, 1354 (1996), our supremecourt noted that because the first amendment's concern for commercial speech is based on the informational function ofadvertising, the government may legitimately suppress commercial expression that is more likely to deceive the public thaninform it. See Bates v. State Bar of Arizona, 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709 (1977) (false,deceptive, or misleading advertising is subject to restraint).

A "testimonial" has been defined as "[a] formal or written statement testifying to a particular truth or fact" (AmericanHeritage Dictionary 1330 (1975)) and as "a statement testifying to benefits received" (Merriam-Webster's CollegiateDictionary 1218 (10th ed. 1998)). Although testimonials have the potential to be misleading, there is nothing inherentlymisleading about them. Testimonials are not innately more likely to deceive the public than inform it. Indeed, thetestimonials in Snell's booklet, which included candid patient comments such as (1) "Examine all your options. See if achiropractor or another specialist can help"; (2) "[D]epending on the problem, I'd suggest a consultation with a chiropractor"; and (3) "[chiropractic treatment helped my] wife 75%," are prime examples of testimonials that are neither misleadingnor deceptive. Because we conclude that the testimonials in the booklet are not inherently misleading, we furtherconclude that the booklet constitutes protected speech under the first amendment.

In so concluding, we note that Ardt v. Illinois Department of Professional Regulation, 154 Ill. 2d 138, 607 N.E.2d 1226(1992), does not require a different result. In that case, the Department disciplined a dentist, in part, on the ground that heviolated section 45 of the Illinois Dental Practice Act, which prohibits claims of superior quality of care (Ill. Rev. Stat.1987, ch. 111, par. 2345(h) (now 225 ILCS 25/45(h)(1) (West 1998))). Ardt, 154 Ill. 2d at 141, 607 N.E.2d at 1227-28. The dentist responded that the provision contravened his first amendment right to free speech. Ardt, 154 Ill. 2d at 151, 607N.E.2d at 1232. The dentist's ads represented, in pertinent part, that he provided "quality dentistry." The supreme courtconcluded that the phrase "quality dentistry" implied superior quality, was inherently misleading, and thus could beprohibited by the State. Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233.

Even assuming that the supreme court would still adhere to its view that a "quality dentistry" advertisement is inherentlymisleading (for a cogent discussion regarding why such an advertisement is not inherently misleading, see Ardt, 154 Ill. 2dat 158-60, 607 N.E.2d at 1235-36 (Heiple, J., concurring in part and dissenting in part)), Ardt is inapposite. In that case,the supreme court specifically addressed a challenge to that portion of section 45 of the Illinois Dental Practice Actprohibiting "claims of superior quality of care" (Ill. Rev. Stat., ch. 111, par. 2345(h)(1) (now 225 ILCS 25/45 (h)(1) (West1998))). Ardt, 154 Ill. 2d at 151-57, 607 N.E.2d 1232-35. Unlike the present case, the Ardt court did not have before it,and, thus, did not address, any challenge to the portion of section 45 that prohibits the use of testimonials. (Both section 26of the Act (225 ILCS 60/26(2) (West Supp. 1999)) and section 45 of the Illinois Dental Practice Act (225 ILCS 25/45(West 1998)) prohibit "testimonials or claims of superior quality of care to entice the public.")

2. The Second Prong of the Central Hudson Test

The second prong of the Central Hudson test asks whether the asserted governmental interest served by the speechrestriction is substantial. Greater New Orleans Broadcasting, 527 U.S. at 185, 144 L. Ed. 2d at 175, 119 S. Ct. at 1931.

Defendants contend that the State has "a substantial interest in restricting physicians' commercial speech to that which isnot misleading" and which is helpful and informative to the potential consumer. We agree.

The State has a substantial interest in regulating the medical profession. Desnick, 171 Ill. 2d at 528, 665 N.E.2d at 1356. Our supreme court has also recognized that "the State has a very real and compelling interest in restricting the advertisingof health-care services to those which are truthful, informative[,] and helpful to the potential consumer in making anintelligent decision." Talsky v. Department of Registration & Education, 68 Ill. 2d 579, 591, 370 N.E.2d 173, 179 (1977).Accordingly, we conclude that defendants have satisfied the second prong of Central Hudson.

3. The Third and Fourth Prongs of the Central Hudson Test

The third prong of the Central Hudson test asks whether the speech restriction directly and materially advances the assertedgovernmental interest. Greater New Orleans Broadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. "Thisburden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction oncommercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to amaterial degree." Edenfield v. Fane, 507 U.S. 761, 770-71, 123 L. Ed. 2d 543, 555, 113 S. Ct. 1792, 1800 (1993). Consequently, "the regulation may not be sustained if it provides only ineffective or remote support for the government'spurpose." Central Hudson, 447 U.S. at 564, 65 L. Ed. 2d at 350, 100 S. Ct. at 2350. The Supreme Court has stressed that"this requirement [is] critical; otherwise, 'a State could with ease restrict commercial speech in the service of otherobjectives that could not themselves justify a burden on commercial expression.'" Rubin v. Coors Brewing Co., 514 U.S.476, 487, 131 L. Ed. 2d 532, 542, 115 S. Ct. 1585, 1592 (1995), quoting Edenfield, 507 U.S. at 771, 123 L. Ed. 2d at 555,113 S. Ct. at 1800.

The fourth prong of the Central Hudson test complements the direct-advancement inquiry of the third part, asking whetherthe speech restriction is not more extensive than necessary to serve the interests that support it. Greater New OrleansBroadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. The government is not required to employ theleast restrictive means conceivable, but the challenged regulation must be narrowly tailored such that the regulation and theasserted interest demonstrate "a fit that is not necessarily perfect, but reasonable; that represents not necessarily the singlebest disposition but one whose scope 'is in proportion to the interest served'." Fox, 492 U.S. at 480, 106 L. Ed. 2d at 404,109 S. Ct. at 3035, quoting In re R.M.J. 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937.

Defendants baldly assert that (1) the restriction "protects the public from deceptive commercial speech" and "from beingmisled by any claims of beneficial results"; (2) section 26 "is limited in scope and prohibits only a discrete f[or]m ofadvertising that is inherently misleading"; and (3) the restriction is "narrowly drawn to advance Illinois' substantial interestin restricting the advertising of health[-]care services to that which is informative and helpful to the potential consumer inmaking an intelligent decision."

The record before us contains no anecdotal accounts of actual harm to potential consumers of chiropractic who were misledor deceived by the booklet's testimonials. In addition, defendants do not point to any studies or empirical evidencesuggesting that the testimonials in the booklet, or any other types of testimonials, mislead or deceive potential consumers. Defendants correctly point out that speech restrictions have been upheld on "commonsense links" between the harms theState seeks to prevent and the State's speech restriction. See Desnick, 171 Ill. 2d at 533, 665 N.E.2d at 1359 (noting thatthe Supreme Court has upheld speech restrictions on such commonsense links and listing those cases). However, we fail tosee any commonsense link between a categorical ban on testimonials, which, as we earlier concluded, are not inherentlymisleading, and the purported harms the State seeks to prevent. In our judgment, such an outright ban does not directly andmaterially advance the State's substantial interests. See R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937 (theState may not absolutely prohibit potentially misleading advertising if the information may also be presented in a way thatis not deceptive).

In addition, we conclude that section 26, by banning testimonials outright, sacrifices an intolerable amount of truthfulspeech about lawful conduct. We further conclude that the complete ban on testimonials is not in proportion to the State'sadmittedly important interests and is unnecessarily and disproportionately broad in the scope of communication it prohibits. See Ardt, 154 Ill. 2d at 152, 607 N.E.2d at 1232 (holding that categorical ban of the phrase "family dentistry" was anunconstitutional abridgement of free speech because the phrase was only potentially misleading); see also Bailey v.Morales, 190 F.3d 320, 324-25 (5th Cir. 1999) (holding unconstitutional a Texas law prohibiting chiropractors fromsoliciting as patients individuals with a special need for chiropractic services arising out of an accident or preexistingcondition, in part, because the law was not reasonably tailored to the harm the State sought to prevent). In sum, if atestimonial is not misleading, not false, and not deceptive, then a governmental ban of it falls afoul of the first amendment.

For all of the above reasons, we hold that by prohibiting Snell's use of the booklet, section 26 of the Act violates Snell'sfirst amendment right to free speech. Accordingly, we reverse the circuit court's decision upholding the Department'sdecision.

III. CONCLUSION

For the reasons stated, we reverse the circuit court's decision.

Reversed.

MYERSCOUGH, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent because I am unable to reconcile the majority's decision with Illinois Supreme Court precedent.

State regulation of commercial speech is permissible by means of appropriate time, place, and manner restrictions andwhere such speech is false or misleading. Desnick, 171 Ill. 2d at 518, 665 N.E.2d at 1352. Further, the overbreadthdoctrine, traditionally utilized in analyzing challenges to a regulation's constitutionality, does not apply to commercialspeech challenges. Desnick, 171 Ill. 2d at 519, 665 N.E.2d at 1353. Thus, the challenging party may not simply attack theregulation's validity, claiming that it infringes protected speech of others even if it might constitutionally be applied to him. Rather, he must claim that the acts that are the subject of the litigation fall outside what a properly drawn regulation couldcover. Desnick, 171 Ill. 2d at 520, 665 N.E.2d at 1353. A challenge to the application of a commercial speech restriction isanalyzed under the four-part framework set out in Central Hudson, 447 U.S. at 566, 65 L. Ed. 2d at 351, 100 S. Ct. at 2351.

Unlike the majority, I conclude that the first prong of the Central Hudson test is dispositive in this matter. The UnitedStates Supreme Court did note in a recent case that "[t]he four parts of the Central Hudson test are not entirely discrete" andthat "[a]ll are important and, to a certain extent, interrelated." Greater New Orleans Broadcasting, 527 U.S. at 183-84, 144L. Ed. 2d at 174, 119 S. Ct. at 1930. However, the parties there agreed that the speech at issue was not misleading. GreaterNew Orleans Broadcasting, 527 U.S. at 184, 144 L. Ed. 2d at 175, 119 S. Ct. at 1930. I conclude that the testimonials atissue here are "inherently misleading" for purposes of the Central Hudson test when viewed in light of the Supreme Courtof Illinois' decision in Ardt.

The majority has discussed why it believes Ardt is not dispositive here; however, I conclude that Ardt requires affirmanceof the circuit court. Section 26 of the Act regulates advertising and prohibits chiropractors from utilizing testimonials orclaims of superior quality to entice the public. 225 ILCS 60/26 (West Supp. 1999). In Ardt, the court applied this samelanguage and concluded that a dentist's advertisement promoting "'quality dentistry for all family needs and all ages'" wasinherently misleading because the statement could not be measured or tested empirically. Ardt, 154 Ill. 2d at 154, 607N.E.2d at 1233. I find particularly applicable the court's statement:

"Whether the quality of any one dentist's services is superior to that of his colleaguesis a matter of opinion for the dentist's patients to decide after treatment. Prior totreatment they should not be misled by advertising which might prove to make an emptyclaim." (Emphasis added.) Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233.

See also Talsky, 68 Ill. 2d at 590-91, 370 N.E.2d at 178-79 (upholding advertising limitations on chiropractor, courtdetermined that the public is particularly susceptible to advertising or promises of medical relief and that the State has acompelling interest to guard against potential abuse).

Each of the "chiropractic stories" contained in the booklet were favorable and supportive of Snell and his practice. Snellelicited praise with questions directly related to the benefits received by the patient and with questions that asked patients to"describe [their] results, including time involved." He elicited statements such as the following: "little to zero pain--tookthree months"; "Severe pain disappeared after a couple treatments and only slight discomfort was left after several weeks";"Pain decreased in about 2 weeks. In about 6 weeks all pain was gone"; and "Just after 2 mo. I feel 100% better than I didwhen I came to Dr. Snell."

Other questions seemed designed to elicit testimonials. Question No. 12 asks: "What would you recommend to others whoare sick, suffering, or in pain?" Some of the answers included: "Chiropractic can help you feel healthier and more alive";"Try a chiropractor. They may be able to help"; "Go see Dr. Snell"; "I would tell them to go to Dr. Snell right away"; "Iwould send them to Dr. Snell right away"; "I would send them to Dr. Snell"; "Go to Snell Chiropractic Center. It helpedme with my pain!"

Finally, some of the requests for information were phrased so as to assume a favorable response or an expression ofappreciation. Question No. 11 asks: "How do you feel about chiropractic, now that you have enjoyed its benefits?" Answers to this inquiry included the following: "I believe in the ability of a chiropractor to make a person feel 100%better" and "I feel great about it. I have never felt so good in my life."

Like the advertisement of "quality dentistry" at issue in Ardt, these statements cannot be measured or tested empirically. Further, "testimonials," particularly when assembled as they were in this case, imply to Snell's waiting room patients thatthe treatment advertised is 100% or nearly 100% effective for all persons and is superior to other methods. No unfavorabletestimonials were made available in the waiting room. Since the Supreme Court of Illinois found the phrase "qualitydentistry" to be inherently misleading, I am led to the same conclusion with respect to the testimonials and statementscontained in the booklet. I find the testimonials at issue here to be even more misleading than using the phrase "qualitydentistry" in an advertisement. Since inherently misleading commercial speech may be completely prohibited, I would endthe analysis there. Ardt, 154 Ill. 2d at 155, 607 N.E.2d at 1234.

As an additional matter, I note that the majority opinion, taken to its logical conclusion, would require the Department topresent evidence to show that a particular testimonial is deceptive, misleading, or false in order to bar its use. Ardt did notimpose a similar duty upon the Department to establish that the public was actually misled by the phrase "quality dentistry." The majority places an impossible burden on the Department, requiring it to question the particular chiropractor's clients toascertain the effect that a certain testimonial had upon them. Such a requirement fails to recognize the scope of thelegislative power in this area. The State has a substantial interest in regulating the medical profession, and in carrying outthat interest it has the power to draw lines, to classify. It is not only inevitable but necessary in the management of themedical profession that lines be drawn. See Jacobson v. Department of Public Aid, 269 Ill. App. 3d 359, 368, 646 N.E.2d949, 955 (1994) (public welfare system). I would find that the ban on the testimonials at issue here does not violate thefirst amendment.