{ "id": 279658, "name": "JOSEPH SNELL, D.C., Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees", "name_abbreviation": "Snell v. Department of Professional Regulation", "decision_date": "2001-01-26", "docket_number": "No. 4-99-0876", "first_page": "972", "last_page": "983", "citations": [ { "type": "official", "cite": "318 Ill. App. 3d 972" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "514 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339650 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "487" }, { "page": "542" }, { "page": "1592" } ], "opinion_index": 0, "case_paths": [ "/us/514/0476-01" ] }, { "cite": "507 U.S. 761", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6238494 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "770-71" }, { "page": "555" }, { "page": "1800" }, { "page": "771" }, { "page": "555" }, { "page": "1800" } ], "opinion_index": 0, "case_paths": [ "/us/507/0761-01" ] }, { "cite": "370 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "68 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5810353 ], "year": 1977, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0579-01" ] }, { "cite": "607 N.E.2d 1226", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "1227-28" }, { "page": "1232" }, { "page": "1233" }, { "page": "1235-36", "parenthetical": "Heiple, J., concurring in part and dissenting in part" }, { "page": "1232-35" }, { "page": "1232", "parenthetical": "holding that categorical ban of the phrase \"family dentistry\" was an unconstitutional abridgement of free speech because the phrase was only potentially misleading" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820251 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "141" }, { "page": "151" }, { "page": "154" }, { "page": "158-60" }, { "page": "151-57" }, { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0138-01" ] }, { "cite": "433 U.S. 350", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179472 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "383", "parenthetical": "false, deceptive, or misleading advertising is subject to restraint" }, { "page": "835", "parenthetical": "false, deceptive, or misleading advertising is subject to restraint" }, { "page": "2709", "parenthetical": "false, deceptive, or misleading advertising is subject to restraint" } ], "opinion_index": 0, "case_paths": [ "/us/433/0350-01" ] }, { "cite": "665 N.E.2d 1346", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "1354" }, { "page": "1356" }, { "page": "1359", "parenthetical": "noting that the Supreme Court has upheld speech restrictions on such commonsense links and listing those cases" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57345 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "523" }, { "page": "528" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0510-01" ] }, { "cite": "527 U.S. 173", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248628 ], "weight": 15, "year": 1999, "pin_cites": [ { "page": "183-84" }, { "page": "174" }, { "page": "1930" }, { "page": "183-84" }, { "page": "174" }, { "page": "1930" }, { "page": "185" }, { "page": "175" }, { "page": "1931" }, { "page": "188" }, { "page": "177" }, { "page": "1932" }, { "page": "188" }, { "page": "177" }, { "page": "1932" } ], "opinion_index": 0, "case_paths": [ "/us/527/0173-01" ] }, { "cite": "455 U.S. 191", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304478 ], "weight": 9, "year": 1982, "pin_cites": [ { "page": "203" }, { "page": "74" }, { "page": "937" }, { "page": "203" }, { "page": "74" }, { "page": "937" }, { "page": "203" }, { "page": "74" }, { "page": "937", "parenthetical": "the State may not absolutely prohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive" } ], "opinion_index": 0, "case_paths": [ "/us/455/0191-01" ] }, { "cite": "447 U.S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186683 ], "weight": 9, "year": 1980, "pin_cites": [ { "page": "566" }, { "page": "351" }, { "page": "2351" }, { "page": "561-62" }, { "page": "348" }, { "page": "2349", "parenthetical": "commercial speech consists of \"expression related solely to the economic interests of the speaker and its audience\" and of \" 'speech proposing a commercial transaction' \"" }, { "page": "564" }, { "page": "350" }, { "page": "2350" } ], "opinion_index": 0, "case_paths": [ "/us/447/0557-01" ] }, { "cite": "436 U.S. 447", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490308 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "456" }, { "page": "453" }, { "page": "1918" }, { "page": "456" }, { "page": "453" }, { "page": "1918" } ], "opinion_index": 0, "case_paths": [ "/us/436/0447-01" ] }, { "cite": "492 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216467 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "477" }, { "page": "402" }, { "page": "3033" }, { "page": "480" }, { "page": "404" }, { "page": "3035" } ], "opinion_index": 0, "case_paths": [ "/us/492/0469-01" ] }, { "cite": "515 U.S. 618", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1564170 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "622-23", "parenthetical": "listing history and holdings of the Court's commercial speech cases" }, { "page": "548-49", "parenthetical": "listing history and holdings of the Court's commercial speech cases" }, { "page": "2375", "parenthetical": "listing history and holdings of the Court's commercial speech cases" }, { "page": "623" }, { "page": "549" }, { "page": "2375" } ], "opinion_index": 0, "case_paths": [ "/us/515/0618-01" ] }, { "cite": "425 U.S. 748", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182253 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "761-62" }, { "page": "358" }, { "page": "1825-26" }, { "page": "765" }, { "page": "360" }, { "page": "1827" } ], "opinion_index": 0, "case_paths": [ "/us/425/0748-01" ] }, { "cite": "316 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 368211 ], "weight": 3, "year": 1942, "pin_cites": [ { "page": "54" }, { "page": "1265" }, { "page": "921" } ], "opinion_index": 0, "case_paths": [ "/us/316/0052-01" ] }, { "cite": "683 N.E.2d 1265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1267" } ], "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456134 ], "year": 1997, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0397-01" ] }, { "cite": "647 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "164 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477055 ], "year": 1995, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0173-01" ] }, { "cite": "646 N.E.2d 949", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "955", "parenthetical": "public welfare system" } ], "opinion_index": 1 }, { "cite": "269 Ill. App. 3d 359", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365916 ], "year": 1994, "pin_cites": [ { "page": "368", "parenthetical": "public welfare system" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/269/0359-01" ] }, { "cite": "370 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "178-79", "parenthetical": "upholding advertising limitations on chiropractor, court determined that the public is particularly susceptible to advertising or promises of medical relief and that the State has a compelling interest to guard against potential abuse" } ], "opinion_index": 1 }, { "cite": "68 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5810353 ], "year": 1977, "pin_cites": [ { "page": "590-91" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/68/0579-01" ] }, { "cite": "607 N.E.2d 1226", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "1233" }, { "page": "1233" }, { "page": "1234" } ], "opinion_index": 1 }, { "cite": "154 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820251 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "154" }, { "page": "154" }, { "page": "155" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/154/0138-01" ] }, { "cite": "665 N.E.2d 1346", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "1352" }, { "page": "1353" }, { "page": "1353" } ], "opinion_index": 1 }, { "cite": "171 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57345 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "518" }, { "page": "519" }, { "page": "520" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/171/0510-01" ] }, { "cite": "527 U.S. 173", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248628 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "183-84" }, { "page": "174" }, { "page": "1930" }, { "page": "184" }, { "page": "175" }, { "page": "1930" } ], "opinion_index": 1, "case_paths": [ "/us/527/0173-01" ] }, { "cite": "447 U.S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186683 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "566" }, { "page": "351" }, { "page": "2351" } ], "opinion_index": 1, "case_paths": [ "/us/447/0557-01" ] } ], "analysis": { "cardinality": 1160, "char_count": 25381, "ocr_confidence": 0.743, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.2921479205930539 }, "sha256": "2b33c438e70fd80343a384c10bd3af5be17c6b2346459676d918a69981d7384d", "simhash": "1:c8529636378b5670", "word_count": 4109 }, "last_updated": "2023-07-14T16:02:38.722215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH SNELL, D.C., Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nPlaintiff, Joseph Snell, a licensed chiropractor, appeals from a September 1999 circuit court order affirming sanctions imposed against him by defendants, the Illinois Department of Professional Regulation (Department) and its then-director, Nikki M. Zollar, based on Snell\u2019s violation of section 26 of the Medical Practice Act of 1987 (Act) (225 ILCS 60/26 (West Supp. 1999)). Snell argues that (1) the Department\u2019s 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\u2019s second argument, we reverse.\nI. BACKGROUND\nIn December 1996, the Department filed an administrative complaint against Snell, which alleged, inter alia, that Snell violated the advertising provisions set forth in section 26 of the Act (225 ILCS 60/26 (West Supp. 1999)) by displaying in his office waiting room a 27-page booklet entitled \u201cOur Patients Speak\u201d (hereafter booklet). Section 26(2) of the Act provides, in pertinent part, that \u201c[i]t is unlawful for any person licensed under this Act to use testimonials or claims of superior quality of care to entice the public.\u201d 225 ILCS 60/26(2) (West Supp. 1999).\nAt a June 1997 administrative hearing, the evidence showed that the booklet contained preprinted forms entitled \u201cMy Chiropractic Story.\u201d Each form contained 14 questions addressed to Snell\u2019s past or current patients. The questions included the following: (1) \u201cWhat led to your decision to try chiropractic?\u201d (2) \u201cDid you have any doubts that chiropractic would help you?\u201d (3) \u201cWhat were your first impressions of chiropractic, this office, and the doctor?\u201d (4) \u201cIs anyone else in your family a chiropractic patient?\u201d (5) \u201cHow has chiropractic helped them?\u201d (6) \u201cWhat would you recommend to others who are sick, suffering, or in pain?\u201d (7) \u201cHow do you feel about chiropractic, now that you have enjoyed its benefits?\u201d The answers to the questions were supplied by the patients in their own handwriting, and each form was accompanied by the photograph and signature of the patient.\nFollowing the hearing, the administrative law judge (ALJ) issued her ruling and found that the booklet contained testimonials in violation of section 26 of the Act. Based upon this finding, the ALJ recommended that Snell be reprimanded, pay a $2,500 fine, and complete certain continuing education courses. In September 1997, the Department\u2019s medical disciplinary board adopted the ALJ\u2019s findings of fact, conclusions of law, and recommendations, and ordered that Snell pay a $2,500 fine.\nSnell subsequently sought administrative review of the Department\u2019s decision by the circuit court. In September 1999, the circuit court upheld the Department\u2019s decision. This appeal followed.\nII. FIRST AMENDMENT CHALLENGE\nInitially, 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 defendants would prevail on the merits of Snell\u2019s nonconstitutional claim, we address Snell\u2019s constitutional argument.\nSnell argues that by prohibiting his use of the booklet, section 26 violates his first amendment right to free speech. We agree.\nA. Protection of Commercial Speech\nConstitutional protection for commercial speech is a relatively recent development in the Supreme Court\u2019s first amendment jurisprudence. Prior to the mid-1970s, the Supreme Court adhered to the broad rule that the Constitution imposes no restraint 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. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-62, 48 L. Ed. 2d 346, 358, 96 S. Ct. 1817, 1825-26 (1976), holding that purely commercial speech is entitled to first amendment protection from unwarranted governmental regulation. The Court expressed the belief that the free flow of commercial information is indispensable to the proper allocation of resources in a free enterprise system because it informs the numerous private decisions that drive the system. Virginia State Board of Pharmacy, 425 U.S. at 765, 48 L. Ed. 2d at 360, 96 S. Ct. at 1827.\nThe Supreme Court has continued to define the appropriate constitutional protection afforded to commercial speech since its holding in Virginia State Board of Pharmacy. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 622-23, 132 L. Ed. 2d 541, 548-49, 115 S. Ct. 2371, 2375 (1995) (listing history and holdings of the Court\u2019s commercial speech cases). However, even today, first amendment protection of commercial speech is not absolute. \u201c \u2018 \u201c[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of [fjirst [a]mendment values,\u201d and is subject to \u201cmodes of regulation that might be impermissible in the realm of noncommercial expression.\u201d \u2019 \u201d Florida Bar, 515 U.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\u2019n, 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978).\nB. Central Hudson\u2019s Four-Part Test\nRestrictions on commercial speech are analyzed under the four-part test set out in Central Hudson Gas & Electric Corp. v. Public Service Comm\u2019n, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 351, 100 S. Ct. 2343, 2351 (1980): 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 absolutely prohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive. In addition, the Supreme Court has noted that the four parts of the Central Hudson test are not entirely discrete. Greater New Orleans Broadcasting Ass\u2019n v. United States, 527 U.S. 173, 183-84, 144 L. Ed. 2d 161, 174, 119 S. Ct. 1923, 1930 (1999). \u201cAll are important and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the [fjirst [a]mendment inquiry, but the answer to which may inform a judgment concerning the other three.\u201d Greater New Orleans Broadcasting, 527 U.S. at 183-84, 144 L. Ed. 2d at 174, 119 S. Ct. at 1930.\n\u201cAt the outset, we must determine whether the expression is protected by the [fjirst [a]mendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.\u201d\n1. The First Prong of the Central Hudson Test\nAt 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 \u201cexpression related solely to the economic interests of the speaker and its audience\u201d and of \u201c \u2018speech proposing a commercial transaction\u2019 \u201d), quoting Ohralik, 436 U.S. at 456, 56 L. Ed. 2d at 453, 98 S. Ct. at 1918.\nDefendants do not contend that the booklet is actually deceptive, misleading, false, or illegal. Indeed, at oral argument before this court, the Department conceded that the booklet itself is not deceptive, misleading, or false. Instead, the Department asserts that the testimonials in the booklet, like all testimonials, are \u201cinherently misleading.\u201d We disagree.\nIn Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 523, 665 N.E.2d 1346, 1354 (1996), our supreme court noted that because the first amendment\u2019s concern for commercial speech is based on the informational function of advertising, the government may legitimately suppress commercial expression that is more likely to deceive the public than inform it. See Bates v. State Bar, 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).\nA \u201ctestimonial\u201d has been defined as \u201c[a] formed, or written statement testifying to a particular truth or fact\u201d (American Heritage Dictionary 1330 (1975)) and as \u201ca statement testifying to benefits received\u201d (Merriam-Webster\u2019s Collegiate Dictionary 1218 (10th ed. 1996)). Although testimonials have the potential to be misleading, there is nothing inherently misleading about them. Testimonials are not innately more likely to deceive the public than inform it. Indeed, the testimonials in Snell\u2019s booklet, which included candid patient comments such as (1) \u201cExamine all your options. See if a chiropractor or another specialist can help\u201d; (2) \u201c[Depending on the problem, I\u2019d suggest a consultation with a chiropractor\u201d; and (3) \u201c[chiropractic treatment helped my] wife 75%,\u201d are prime examples of testimonials that are neither misleading nor deceptive.\nBecause we conclude that the testimonials in the booklet are not inherently misleading, we further conclude that the booklet constitutes protected speech under the first amendment.\nIn 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 he violated 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)(1) (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, 607 N.E.2d at 1232. The dentist\u2019s ads represented, in pertinent part, that he provided \u201cquality dentistry.\u201d The supreme court concluded that the phrase \u201cquality dentistry\u201d implied superior quality, was inherently misleading, and thus could be prohibited by the State. Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233.\nEven assuming that the supreme court would still adhere to its view that a \u201cquality dentistry\u201d advertisement is inherently misleading (for a cogent discussion regarding why such an advertisement is not inherently misleading, see Ardt, 154 Ill. 2d at 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 Act prohibiting \u201cclaims of superior quality of care\u201d (Ill. Rev. Stat., ch. Ill, par. 2345(h)(1) (now 225 ILCS 25/45(h)(l) (West 1998))). Ardt, 154 Ill. 2d at 151-57, 607 N.E.2d at 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 26 of 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 \u201ctestimonials or claims of superior quality of care to entice the public.\u201d)\n2. The Second Prong of the Central Hudson Test\nThe second prong of the Central Hudson test asks whether the asserted governmental interest served by the speech restriction is substantial. Greater New Orleans Broadcasting, 527 U.S. at 185, 144 L. Ed. 2d at 175, 119 S. Ct. at 1931.\nDefendants contend that the State has \u201ca substantial interest in restricting physicians\u2019 commercial speech to that which is not misleading\u201d and which is helpful and informative to the potential consumer. We agree.\nThe 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 \u201cthe State has a very real and compelling interest in restricting the advertising of health-care services to those which are truthful, informative[,] and helpful to the potential consumer in making an intelligent decision.\u201d 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.\n3. The Third and Fourth Prongs of the Central Hudson Test\nThe third prong of the Central Hudson test asks whether the speech restriction directly and materially advances the asserted governmental interest. Greater New Orleans Broadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. \u201cThis burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.\u201d Edenfield v. Fane, 507 U.S. 761, 770-71, 123 L. Ed. 2d 543, 555, 113 S. Ct. 1792, 1800 (1993). Consequently, \u201cthe regulation may not be sustained if it provides only ineffective or remote support for the government\u2019s purpose.\u201d Central Hudson, 447 U.S. at 564, 65 L. Ed. 2d at 350, 100 S. Ct. at 2350. The Supreme Court has stressed that \u201cthis requirement [is] critical; otherwise, \u2018a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.\u2019 \u201d 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.\nThe fourth prong of the Central Hudson test complements the direct-advancement inquiry of the third part, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it. Greater New Orleans Broadcasting, 527 U.S. at 188, 144 L. Ed. 2d at 177, 119 S. Ct. at 1932. The government is not required to employ the least restrictive means conceivable, but the challenged regulation must be narrowly tailored such that the regulation and the asserted interest demonstrate \u201ca fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope \u2018is in proportion to the interest served.\u2019 \u201d 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.\nDefendants baldly assert that (1) the restriction \u201cprotects the public from deceptive commercial speech\u201d and \u201cfrom being misled by any claims of beneficial results\u201d; (2) section 26 \u201cis limited in scope and prohibits only a discrete [form] of advertising that is inherently misleading\u201d; and (3) the restriction is \u201cnarrowly drawn to advance Illinois\u2019 substantial interest in restricting the advertising of health[-] care services to that which is informative and helpful to the potential consumer in making an intelligent decision.\u201d\nThe record before us contains no anecdotal accounts of actual harm to potential consumers of chiropractic who were misled or deceived by the booklet\u2019s testimonials. In addition, defendants do not point to any studies or empirical evidence suggesting 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 \u201ccommonsense links\u201d between the harms the State seeks to prevent and the State\u2019s speech restriction. See Desnick, 171 Ill. 2d at 533, 665 N.E.2d at 1359 (noting that the Supreme Court has upheld speech restrictions on such commonsense links and listing those cases). However, we fail to see any commonsense link between a categorical ban on testimonials, which, as we earlier concluded, are not inherently misleading, and the purported harms the State seeks to prevent. In our judgment, such an outright ban does not directly and materially advance the State\u2019s substantial interests. See R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937 (the State may not absolutely prohibit potentially misleading advertising if the information may also be presented in a way that is not deceptive).\nIn addition, we conclude that section 26, by banning testimonials outright, sacrifices an intolerable amount of truthful speech about lawful conduct. We further conclude that the complete ban on testimonials is not in proportion to the State\u2019s admittedly 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 \u201cfamily dentistry\u201d was an unconstitutional abridgement of free speech because the phrase was only potentially misleading); see also Bailey v. Morales, 190 E3d 320, 324-25 (5th Cir. 1999) (holding unconstitutional a Texas law prohibiting chiropractors from soliciting as patients individuals with a special need for chiropractic services arising out of an accident or preexisting condition, in part, because the law was not reasonably tailored to the harm the State sought to prevent). In sum, if a testimonial is not misleading, not false, and not deceptive, then a governmental ban of it falls afoul of the first amendment.\nFor all of the above reasons, we hold that by prohibiting Snell\u2019s use of the booklet, section 26 of the Act violates Snell\u2019s first amendment right to free speech. Accordingly, we reverse the circuit court\u2019s decision upholding the Department\u2019s decision.\nIII. CONCLUSION\nFor the reasons stated, we reverse the circuit court\u2019s decision.\nReversed.\nMYERSCOUGH, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent because I am unable to reconcile the majority\u2019s decision with Illinois Supreme Court precedent.\nState regulation of commercial speech is permissible by means of appropriate time, place, and manner restrictions and where such speech is false or misleading. Desnick, 171 Ill. 2d at 518, 665 N.E.2d at 1352. Further, the overbreadth doctrine, traditionally utilized in analyzing challenges to a regulation\u2019s constitutionality, does not apply to commercial speech challenges. Desnick, 171 Ill. 2d at 519, 665 N.E.2d at 1353. Thus, the challenging party may not simply attack the regulation\u2019s 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 could cover. Desnick, 171 Ill. 2d at 520, 665 N.E.2d at 1353. A challenge to the application of a commercial speech restriction is analyzed 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.\nUnlike the majority, I conclude that the first prong of the Central Hudson test is dispositive in this matter. The United States Supreme Court did note in a recent case that \u201c[t]he four parts of the Central Hudson test are not entirely discrete\u201d and that \u201c[a]ll are important and, to a certain extent, interrelated.\u201d Greater New Orleans Broadcasting, 527 U.S. at 183-84, 144 L. Ed. 2d at 174, 119 S. Ct. at 1930. However, the parties there agreed that the speech at issue was not misleading. Greater New Orleans Broadcasting, 527 U.S. at 184, 144 L. Ed. 2d at 175,119 S. Ct. at 1930. I conclude that the testimonials at issue here are \u201cinherently misleading\u201d for purposes of the Central Hudson test when viewed in light of the Supreme Court of Illinois\u2019 decision in Ardt.\nThe majority has discussed why it believes Ardt is not dispositive here; however, I conclude that Ardt requires affirmance of the circuit court. Section 26 of the Act regulates advertising and prohibits chiropractors from utilizing testimonials or claims of superior quality to entice the public. 225 ILCS 60/26 (West Supp. 1999). In Ardt, the court applied this same language and concluded that a dentist\u2019s advertisement promoting \u201c \u2018quality dentistry for all family needs and all ages\u2019 \u201d was inherently misleading because the statement could not be measured or tested empirically. Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233. I find particularly applicable the court\u2019s statement:\n\u201cWhether the quality of any one dentist\u2019s services is superior to that of his colleagues is a matter of opinion for the dentist\u2019s patients to decide after treatment. Prior to treatment they should not be misled by advertising which might prove to make an empty claim.\u201d (Emphasis added.) Ardt, 154 Ill. 2d at 154, 607 N.E.2d at 1233.\nSee also Talsky, 68 Ill. 2d at 590-91, 370 N.E.2d at 178-79 (upholding advertising limitations on chiropractor, court determined that the public is particularly susceptible to advertising or promises of medical relief and that the State has a compelling interest to guard against potential abuse).\nEach of the \u201cchiropractic stories\u201d contained in the booklet was favorable and supportive of Snell and his practice. Snell elicited praise with questions directly related to the benefits received by the patient and with questions that asked patients to \u201cdescribe [their] results, including time involved.\u201d He elicited statements such as the following: \u201clittle to zero pain \u2014 took three months\u201d; \u201cSevere pain disappeared after a couple treatments and only slight discomfort was left after several weeks\u201d; \u201cPain decreased in about 2 weeks. In about 6 weeks all pain was gone\u201d; and \u201cJust after 2 mo. I feel 100% better than I did when I came to Dr. Snell.\u201d\nOther questions seemed designed to elicit testimonials. Question No. 12 asks: \u201cWhat would you recommend to others who are sick, suffering, or in pain?\u201d Some of the answers included: \u201cChiropractic can help you feel healthier and more alive\u201d; \u201cTry a chiropractor. They may be able to help\u201d; \u201cGo see Dr. Snell\u201d; \u201cI would tell them to go to Dr. Snell right away\u201d; \u201cI would send them to Dr. Snell right away\u201d; \u201cI would send them, to Dr. Snell\u201d; \u201cGo to Snell Chiropractic Center. It helped me with my pain!\u201d\nFinally, some of the requests for information were phrased so as to assume a favorable response or an expression of appreciation. Question No. 11 asks: \u201cHow do you feel about chiropractic, now that you have enjoyed its benefits?\u201d Answers to this inquiry included the following: \u201cI believe in the ability of a chiropractor to make a person feel 100% better\u201d and \u201cI feel great about it. I have never felt so good in my fife.\u201d\nLike the advertisement of \u201cquality dentistry\u201d at issue in Ardt, these statements cannot be measured or tested empirically. Further, \u201ctestimonials,\u201d particularly when assembled as they were in this case, imply to Snell\u2019s waiting room patients that the treatment advertised is 100% or nearly 100% effective for all persons and is superior to other methods. No unfavorable testimonials were made available in the waiting room. Since the Supreme Court of Illinois found the phrase \u201cquality dentistry\u201d to be inherently misleading, I am led to the same conclusion with respect to the testimonials and statements contained in the booklet. I find the testimonials at issue here to be even more misleading than using the phrase \u201cquality dentistry\u201d in an advertisement. Since inherently misleading commercial speech may be completely prohibited, I would end the analysis there. Ardt, 154 Ill. 2d at 155, 607 N.E.2d at 1234.\nAs an additional matter, I note that the majority opinion, taken to its logical conclusion, would require the Department to present evidence to show that a particular testimonial is deceptive, misleading, or false in order to bar its use. Ardt did not impose a similar duty upon the Department to establish that the public was actually misled by the phrase \u201cquality dentistry.\u201d The majority places an impossible burden on the Department, requiring it to question the particular chiropractor\u2019s clients to ascertain the effect that a certain testimonial had upon them. Such a requirement fails to recognize the scope of the legislative power in this area. The State has a substantial interest in regulating the medical profession, and in carrying out that interest it has the power to draw lines, to classify. It is not only inevitable but necessary in the management of the medical profession that lines be drawn. See Jacobson v. Department of Public Aid, 269 Ill. App. 3d 359, 368, 646 N.E.2d 949, 955 (1994) (public welfare system). I would find that the ban on the testimonials at issue here does not violate the first amendment.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Robert G. Kirehner (argued), of Lerner & Kirchner, of Champaign, for appellant.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Jan E. Hughes (argued), Assistant Attorney General, of counsel), for appellee." ], "corrections": "", "head_matter": "JOSEPH SNELL, D.C., Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees.\nFourth District\nNo. 4\u201499\u20140876\nArgued July 19, 2000.\nOpinion filed January 26, 2001.\nCOOK, J., dissenting.\nRobert G. Kirehner (argued), of Lerner & Kirchner, of Champaign, for appellant.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Jan E. Hughes (argued), Assistant Attorney General, of counsel), for appellee." }, "file_name": "0972-01", "first_page_order": 992, "last_page_order": 1003 }