The First Amendment and… dentistry?

For converged communicators in MMC3200 (Law and Ethics in Communication), an interesting and complex case that shows how the First Amendment is still a major battleground in law. This one comes from Sasha Volokh, writing for the Washington Post (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/31/the-surprising-free-speech-angle-and-easy-workaround-in-the-dental-examiners-antitrust-case/).

This case is complicated, involving antitrust law and several other branches far beyond the scope of MMC3200. Don’t worry: There’s no need for you to obsess about the details of this case. But it raises some interesting First Amendment issues. The case springs from an unusual dispute between the North Carolina Board of Dental Examiners and the Federal Trade Commission, which sounds weird enough.

One of the issues involved is that whitening teeth without a license is considered illegal in North Carolina. When the state threatened to sue persons who were practicing unlicensed tooth-whitening, they complained, and the FTC ordered the state board to stop sending these letters. That sounds simple. But there’s an interesting First Amendment viewpoint in play here. As Volokh puts it:

“Is it really clear that (even core) governmental entities lack First Amendment (whether free speech or petition) rights? What if a state wanted to express a particular message, like opposition to a particular federal policy, and Congress wanted to prohibit it from doing so: is it obvious that the state can’t assert a First Amendment right to express its view?”

This aspect of the law has apparently not been examined in depth in past cases. Converged communicators who read Chapter 1 well can probably guess the ultimate destination of this case, which potentially involves a broad federal issue. That’s the U.S. Supreme Court.

 

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