Hi everyone!
No grants today, but two bits of news. First, the Court denied cert in Borgner v. Florida Bd. of Dentistry (02-165), but Justice Thomas, joined by Justice Ginsburg, dissented from the denial of cert, bemoaning the Court’s failure to take the opportunity to clarify the application of the First Amendment to commercial speech. Borgner, a dentist, advertises himself as a specialist in “implant dentistry,” but implant dentistry (and the organizations specializing in it, of which Borgner is a member) are not recognized by the American Dental Association or the Florida Board of Dentistry. (I hope never to know what an “implant dentist” does; it sounds painful.) Florida told Borgner that if he wanted to advertise as an “implant dentist” he had to include specific disclaimers in his ads. Borgner challenged these restrictions under the First Amendment, and the Eleventh Circuit upheld them under the Central Hudson standard for analyzing restrictions on commercial speech. Justices Thomas’s dissent questions whether the Eleventh Circuit’s conclusion is consistent with recent Supreme Court applications of Central Hudson, and further argues that lower courts need guidance on the permissibility and scope of state-mandated disclaimers. Look for this issue on the Court’s docket in future Terms.
Second, the Chief was absent from all of last week’s arguments. No word yet on whether he is on the bench this week.
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.