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DAVIS v. BOARD OF MED. EXAMINERS

September 23, 1980

Ken DAVIS, D.C. et al., Plaintiff,
v.
BOARD OF MEDICAL EXAMINERS, Defendant



The opinion of the court was delivered by: BIUNNO

This suit, which is before the court on motion for preliminary injunction, is brought to challenge the validity of N.J.S.A. 45:9-18, as amended by N.J.P.L.1977, c. 380, and the regulation adopted under the authority of N.J.S.A. 45:9-2, found at N.J.A.C. 13:35-6.13, adopted to take effect April 14, 1978. Declaratory judgment, injunction, money damages and attorneys fees are sought. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343(3) and 1343(4).

 The challenge presents two grounds. One is that these laws and regulations violate the First Amendment guarantee of free speech, which is made applicable to the States through the due process clause of the Fourteenth Amendment, see Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939); Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

 Plaintiffs are licensed to engage in the practice of chiropractic, and so are subject to regulation by the State, the function having been assigned to the N.J. State Board of Medical Examiners. No issue is raised or claim made, as the court understands the case, in respect to the State's authority to regulate the practice of chiropractic, see Semler v. Dental Examiners, 294 U.S. 608, 55 S. Ct. 570, 79 L. Ed. 1086 (1935); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Abelson's Inc. v. N.J. State Board of Optometrists, 5 N.J. 412, 75 A.2d 867 (1950); Head v. New Mexico Board, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963). Rather, the issues are much narrower.

 The free speech or First Amendment claims rest mainly on two recent decisions dealing with the subject. These are Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) dealing with newspaper publication by pharmacists of their retail prices for prepackaged prescription drugs; and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), dealing with newspaper publication by lawyers of their fees for which particular "routine services" would be performed.

 In both those cases, the challenged enactments were complete prohibitions against advertising by the regulated professional, operating indirectly through application of the disciplinary process to them. The enactments, there, as here, did not extend to unregulated activities as in the case of the obscenity law in Miller, supra.

 It should be observed, too, that New Jersey's Constitution also contains a free speech and free press guaranty, as follows:

 
"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." N.J.Const. 1844, Art. 1, par. 5; N.J.Const. 1947, Art. 1, par. 6;

 To the extent that this provision, as construed by New Jersey, provides less protection than the First Amendment, the latter must prevail as paramount law under the supremacy clause, U.S.Const. Art. VI, cl. 2. To the extent that this provision extends greater protection than all that the First Amendment does, the additional scope is a matter of State rather than federal law, and the State is free to take that course. See, Cooper v. California, 386 U.S. 58, at 62, 87 S. Ct. 788, at 791, 17 L. Ed. 2d 730 (1968); PruneYard, etc. v. Robins, 447 U.S. 74, 100 S. Ct. 2035, at 2040, 64 L. Ed. 2d 741 (1980).

 The Virginia and Bates decisions made it clear that since regulated professions were involved, neither one purported to forbid the regulation of commercial speech by professionals. In Virginia, for example, the court said:

 
"In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way". 425 U.S. at 770, 96 S. Ct. at 1830.

 In Bates, for another example, the court said:

 
"In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way." 433 U.S. at 383, 97 S. Ct. at 2708.

 To be sure, there was sharp disagreement with the majority's view that permissible regulation of professional commercial speech posed no particular problem. See the dissents on this point in Bates, by Chief Justice Burger, 433 U.S. at 386, 97 S. Ct. at 2710 and Mr. Justice Powell, ...


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