RESPONDENT:Rogers et al
LOCATION:Magoffin Avenue, El Paso
DOCKET NO.: 77-1163
DECIDED BY: Burger Court (1975-1981)
CITATION: 440 US 1 (1979)
ARGUED: Nov 08, 1978
DECIDED: Feb 21, 1979
Dorothy Prengler – for E
Larry Niemann – for Texas Optometric Association, Inc
Robert Q. Keith –
Media for Friedman et al. v. Rogers et al
Audio Transcription for Opinion Announcement – February 21, 1979 in Friedman et al. v. Rogers et al
Warren E. Burger:
The judgment and opinion in No. 1163, 64, and 86, Friedman against Rogers will be announced by Mr. Justice Powell.
Lewis F. Powell, Jr.:
This case is here on appeal and cross-appeal from the United States District Court for the Eastern District of Texas.
The District Court invalidated a section of the Texas Optometry Act that prohibited the practice of optometry under a trade name.
It held that the restriction violated First Amendment rights of commercial speech.
The court rejected however a due process attack on another section of the Act requiring that three of the five members of the Texas Optometry Board be drawn for membership of a particular professional organization.
In recent decisions, this Court has recognized that commercial speech enjoys a measure of First Amendment protection.
But the Court also has emphasized that the distinctive characteristics of commercial speech make it permissible for a state to regulate such speech in a manner that would not be appropriate for other forms of speech.
We think that the Texas prohibition of the practice of optometry under a trade name is an example of permissible regulation.
The prohibition, the possibilities for abuse and deception attended upon issues of trade names where viewed as serious by the Texas legislature.
The record in this case includes a number of examples of such abuse.
The Texas restriction is addressed primarily to the problems of false and misleading information and has only a most limited effect on information that can be conveyed to consumers.
Since we conclude that the Texas law is a legitimate exercise of state authority, we reverse the decision of the District Court.
The Texas legislature also acted lawfully in requiring that a majority of the state’s regulatory board be drawn from members of a professional organization, an organization that had standards consistent with the rules committed by the legislature to the board to enforce.
We therefore affirm the Court’s decision sustaining that provision.
Mr. Justice Blackmun with whom Mr. Justice Marshall joined has filed a separate opinion concurring in the judgment with respect to the membership requirement but dissenting from the decision with respect to the trade name.
Warren E. Burger:
Thank you Mr. Justice Powell.