From the Ramblemuse Keith Grant Massage Politics Sheet

Indiana’s SB 320 Likely Vulnerable to Free Speech Challenge

With the ink barely dry on Indiana’s SB 320, a massage certification act, it appears that part of the act’s stipulations may violate first amendment protections on commercial speech. SB 320 is a title act, restricting the use of specific titles to those who are certified under the law. The is in contrast to a practice act, which makes it illegal to practice unless licensed by the state. Unfortunately, SB 320 restricts use of the generic, descriptive term “massage therapist”, making it difficult for those who legally practice massage but don’t wish to certify or meet the qualifications to certify to truthfully describe their practices. The Institute of Justice is taking on a similar title act in Texas, that prohibits use of the generic term “interior designer”.

In Zauderer V. Office Of Disciplinary Counsel (471 U.S. 626, 1985), the U.S. Supreme Court summarized the protection of commercial speech.

The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading or that proposes an illegal transaction. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

This Court reaffirmed this principle in Ibanez V. Florida Dept. Of Bus. & Prof. Reg. (No. 93-639 ,1994), a certiorari to the District Court Of Appeals of Florida, First District.

The State may ban such speech only if it is false, deceptive, or misleading. See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 . If it is not, the State can restrict it, but only upon a showing that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.

The issues, including specificity of title protections an “narrowness of tailoring” a discussed further in Miller v Stuart (No. 96-2068, 11th Circuit District Court, 1997) and Passions Video v Jay Nixon (No. 05-4053, 8th Circuit Court of Appeals, 2006). The latter case notes:

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” U.S. Const. amend I. The amendment applies to state and local governments through the Fourteenth Amendment. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561 (1980).

Indiana had the choice of passing a practice act, making the practice of massage illegal except for those licensed. By making the practice of massage otherwise illegal, a practice act would have fulfilled the “not false, deceptive, misleading, or illegal” requirements for regulating the generic title. In forgoing a practice act but then regulating the generic title, IN SB 320 set up an unnecessary conflict with the first amendment protections of commercial speech. SB 320 should have stuck with defining and protecting a recognizable title not in generic use — in short, a title that, in the commercial world, could have been trademarked. Legally consistent occupational regulation is clearly a still evolving art.

This entry was posted on Monday, May 21st, 2007 at 10:35 pm and is filed under Licensing and Legislation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.