it please the court bill davis for the appellants like most states texas limits dental specialty advertising to the specialties recognized by the american dental association has done so since one nine hundred seventy one limiting the specialist term of art to the a d a s stringent criteria the plaintiff's complaint really here is that the eighty eight hasn't recognized their specialties but that does not make the texas rule and its numerous counterparts in other states on concert i'd like to start if i could with the first lady and the first prong of the central hudson test the question under that prong is whether the proposed beach is inherently misleading that category includes proposed speech that is devoid of intrinsic meaning the proposed beach fits into that category here because rule one away point five four is the only thing that gives specialist in dental advertising in texas any reliable meaning we know that from the plaintiff's own deposition testimony the plaintiffs testified to a broad range of what specialist missouri supreme court made in the parmalee versus missouri dental board case the regulations were similar in that they required a da specialty status to advertise as a specialist and the court said that without that link specialist would have no intrinsic meaning it would be in that court's words subjects subject to the whim of the users meaning a dentist could use that term in advertising however he thought appropriate and we know again from the deposition testimony that that include could include even a dentist to simply feels subjectively that he excels in a certain area and avoiding abuses enabled by the public's comparative lack of knowledge that's a rule in this context actually not advance that interest because there is no specialist and that in that category of dentistry and so the public has no way of no difference between the the more preferred and just in that area well there are nine categories of a t a i specialist and so consumers can look to that special a term of art and they have for forty five years in texas and in many other states and that's significant because just to take an illustration if there's a child who needs emergency dental care the last thing a parent needs to be worried about is what specialist means in a dental advertisement and also part of that is the nature of this kind of challenge  seems to me with the district judge determine is that the rule that texas is using is a passionate worst i'm not sure which one is overbroad it's not that you can't regulate in some way of those plenty of witnesses we're talking about it is giving useful information to the public that these people either more experienced they've been certified in some way other categories but least they are more on top of whatever their particular area  and others and you can come up with a regulation that require certain levels of of training or certification or whatever else that you can't regulate it is that you're over regulating  oh if you have a response to my rambling comment but i mean that's my sense of this case is that you regulation is too broad you can regulate but you're not doing it correctly and what this injunction  allowing is in these these four categories of specialty and if you could hear the quotes around my use of the word in those four categories where you cannot stop at least some useful information from going to the public without a better justification that is south of that i think your question really goes to two prongs the first prong of the fourth prong of the central hudson sest one of the things that harley court said was to permit this type of information to fro flow freely that is unregulated specialised advertisements would actually obscure useful information from the public because it would bury true specialist advertisements in a sea of whatever the dentist  thought was appropriate and so the consumer wouldn't be able to trust that on let me ask you which you understanding of this injunction you have three dentists and four associations or the reverse three dentist can advertise in their specialty a result of the injunction correct the i believe their side into the individual ok dentists but yes i never do it so far as the groups are concerned what is the effect on them the the the injunction isn't especially clear all we know from it is that enjoy it enjoins and for some of the rules as to these plaintiffs under the first amendment theory but it doesn't does it had been argued in this case of that allows anyone who is a member of one of those associations to advertise in there especially who is not a name plaintiff no i don't think that would be a permissible reading of the injunction for one thing because in the live complaint the plaintiffs and identifying the organizations and their membership know that even though the individual plaintiffs have achieved certain credentials most of the members for instance of the implant dentistry group haven't achieved the same credentials and so i don't think it could be read that way and there was no suggestion in the district court's order that the plaintiffs have shown that the facial relief would be appropriate because there is no circumstance in which the rule could be validly applied and in fact the plaintiffs i think would agree that the rule could be validly applied to someone who has absolutely no training as a specialist why isn't that the right app come to these particular dentists who do satisfy more extraordinary training in a specialty that is not a day in a five in this eighty eight what why can't why isn't this the right outcome so that it doesn't invalidate the will but allow special dentist to be able to  recognize as all right i think the answer is because the standards are not the same the a d a s standards require two to three years of reddest residency with hands on training and again i would point to the the plaintiff's testimony they are saying some of them saying that it requires a lot of education and testing and certification but others are saying actually you don't really have to take a test if you've been doing it a long time or if you just excel in an area you can be a specialist are there certain trends that you think are not  specialised you know we haven't we haven't so no we haven't attacked it on that ground but it goes to the point of lack of intrinsic meaning because once that once that link is broken from the a d f specialty criteria applied basis but the question isn't a really good thing can be such a floodgate state can't manage that the question is whether this line drawing exercise is constitutional any line drawing exercise will result in some in connection with that that will go to whether or not the advertising is misleading that's we're looking at on the central that's right judgments and any connection with whether or not it's misleading you talking about what it may lead a consumer to believe about that particular practitioner specialty based on the appetite right that's right and along those lines did you offer any empirical evidence or data that would suggest that such an ad would be misleading what do you offer in support of is we don't as we don't have in the words of the on backcourt this court and done again and careful scientific evidence but in footnote eight of that decision this court said that's not required and this goes to the third prong of central hudson the  advancement prong the supreme court in florida barbour says went forward explain that the government has a lot of leeway here and can rely soley on history consensus and common sense again footnote eight of substantial in interest the first bullet point on page twenty three of the state's brief and the plaintiff's own deposition testimony again supports that plaintiff's buck and huber testified that there has to be some organization or entity responsible for certifying specialist it only makes sense that texas has looked to the eighty a as most of the other states have done and limited specialty advertising to the eighty eight recognized specialties goes back and forth in your briefing as to the number of states and what is your best assessment of states who regulate in brewery close to the same way texas does not your biggest possible number give me what they want to tell me what is the right way to look at the answer or tell me why that's incorrect sure so the in the briefing we had non exhaustive list i think we got up to be if you combine our opening brief in the count is thirty four states that we cited that limit specialty advertising to the a t o recognize these there i think in preparing for argument we found a couple of more so i think the total comes to thirty six  that followed in a b a model but only ten states that up that had identical or in the courts where it's a similar rule and so here we have many more states than that and one of the other points that the longer court made in this is the eleventh circuit was that with a rule that goes back in that case thirty five years here we have forty five years it's not surprising that there won't be a lot of evidence about what went into the rule and that only makes sense in this context because otherwise plaintiffs could just look for a with rules and start picking them off under first amendment theories and that's not how the test is set up  that what central action requires us to do is not decide what is the manner that most fits within the stage argument that you're giving is now about a uniform way of all specialties reading a board of trustees versus fox case is that it's the states have a lot of leeway here and yes screening is one option disclaimer is another option but in the a p m case american cat academy of pain management case from the ninth circuit the court said that another way to not substantially burden protected speech and that's a paraphrase from the fox case is to allow a substantial amount of other speech in the same area and here that is what rules want to eight point five five point five six do they allow people to advertise the services they provide the credentials they've earned including in the plaintiff's organizations that allow them to name their practices in ways that show consumers what they practice i see my time's expired to yourself still answering my question i'm sorry you serious i'll still answer oh thank you your honor that's that's really near the end of my answer it's that the state has allowed a substantial amount of that the standard how do we know that the reed versus town of gilbert standard isn't the correct standard to be applied in this context and if we were to apply the read town of gilbert standard you can see lose so read versus town of gilbert believe was not even a commercial speech case and didn't mention central hudson and i think if there would be some dramatic changes to overhaul the central hudson framework for commercial speech we would know that from the supreme court and the first opinion from the court this term was per curiam decision involves versus oklahoma reminding courts that they have to leave it to the supreme court to change the law so i don't think there's any valid argument that anything other than central hudson applies or as several other circuits have concluded after if we were in strict scrutiny i i'm not prepared for that because strict scrutiny doesn't apply of but in fact ok the other question that i have is do you agree that you bear the burden of showing that it's misleading yes and what in the record points to that on the first prong the player's deposition testimony on the second prong that's uncontested we have substantial interest on the third prong history consensus and common sense on the fourth prong rules one zero eight point five five and  for the american academy of implant industry and the eight other plaintiffs in the case i want to address first the simple hudson intermediate scrutiny standard later i want to get to judge all right it's a question of downtown  first it puts the burden on the state to us to meet every element the burden is not on the plaintiffs we have a prohibition here not a restriction that involves a disclaimer or anything like that this is an al right prohibition on first amendment speech that historically has been accorded the term commercial speech simple hudson applies to assuring that no matter whether caleb gilbert does or not the first element is under central hudson all the cases of applied it is this week is the speech speech that's protected by the first minute and a test that you have to say is that lawful speech and is it not anesthesiology is lawful texas is what's called the clinton restate that is when you get your license to practice dentistry you can practice in any area so it's unlawful to practice in the field of implant policy for instance if you're a dentist license and licensed in texas and so advertising that you specialize in that area and that's the earlier you are in is perfectly legal texas does not certify you don't have the board does not have the authority to certify specialties so it is perfectly appropriate to decide the advertisement question for a second is perfectly appropriate for somebody to practice as a specialist  ant told you that you can use the term specialist is that that's what they say yes you can advertise want to wait point five six i believe it is says you can every ties maybe five or so in the back of the airplane magazine when they got the pictures of the people who do the one day implants does is long as they don't use the word specialist that states not going to come after you or that you believe that you should be able to put the word specialists that yes i think there is not and is not unlawful to diminish with it do you know how many dentist there are who would organizational claims in exhibits twenty seven twenty eight twenty nine and i think thirty ive i i know twenty seven twenty eight twenty nine i left out the other when i copied them i don't know if it's thirty or twenty six but they four i think of each of the declarations hand many people that are members of the organization or for instance diplomats under the certifying board for their particular specialty in texas which specifically identified i have a question my question is a little bit difficult question was you know how many dentists there are who would so perform one of the non recognize specialties and otherwise is there somebody who does the implants only does implant that do anything else but implant and wants to be able to advertise that i do these implants and there passed my specialty but can't because of the texas border don't examine it i don't know how many in the whole state of texas each of our plaintiffs individual claims doctor hoover dr it's sort of no good lifestyle if we don't know i know there are so many people that are trying to hold themselves out that they're going to have to be pinning having ten people full time evaluate whether or not these people are really specialist  this that's not the only choices of the state but let me focus for a second on this release question i really want to get through my other pieces but this is important because this is the really these judge sparks the district judge did not do and as applied injunction as to only these people the only time the phrase as applied is mentioned is early on when he's deciding what our challenge is or he says we have facial and as applied challenges and then when he gets down to the issues the injunction he applies to invalidate the regulation across the board have to come in c for that i don't agree you're on a lot of but you would not state laws and injunctions and we've had a lot experience with this in the past two or three facially invalid even if it was only applied attacked as as applied in the district court so i don't agree i think it's entirely what i want to get past and i think that's a red herring frankly you're wrong and why are we talking about it because i it was dragged across the past and i had to cite something of they have to let me go back to the first factor the and the other piece of the first factor is the speech has to not be misleading saying you are a specialist in something hat do you consider it to be to be a specialist and they go through every one of them serious of simply the same thing by sight it takes training experience education and a testing regime of some sort to get you there every one of them says there so at the core issue of the specialist is clear it's not inherently misleading if any in the supreme court in peel said that if the majority opinion by the way this part  doesn't mean anything and the supreme court said look the fact that there may be reasons of certainty with respect to the term does not mean it's inherently misleading says i don't types i think two hundred two or one hundred two us reports  specifically what it says is that's it's not inherently misleading it's potentially misleading and we agree advertising is a specialist in anything is potentially misleading because you don't know somebody might just be out of law school for specialist if you and the ones that they do have you can't hold yourself out as that's against them you'd be in disciplinary violation well the easiest answer that doesn't do the central hudson that is we have a challenge they are with we're representing dentists not lawyers i don't know if there's a study out there that the state would point to with regard to bark at people in the bar for instance that would say it is misleading we have established if you say that you have to stick in the say general dentistry practice too even if you don't dr hilton for instance as an anesthesiologist is one of the plaintiffs he only does these nine areas and what exists here is a range of things dealing with your for organizational plaintive which may or may not have the rigor i don't know i don't know with more maybe this would all be that the  recognize more than a day but what i'm looking at is if in fact the speech the commercial speech that your party's your your clients want to make is largely permitted by this rule it's not  suggestion one way it may be and you're worried about the risk but you'd rather strike down the whole rule than see if you could do that i'm just wondering if it's all i'm saying is i would not belittle the stage interest here i'm not saying your intuitions that i've got a little in the rule suggests that you were running afoul of the implying that you were specialists there i want to come back there is nothing wrong under texas law with being a specialist in the  anesthesiology there is nothing wrong with it it's perfectly legal is being a specialist is not inherently misleading so saying you're a specialist in the implant apology in an advertisement it meets the first factor easily so they have to then come back on the third to act ok we have surveys we have studies we have anecdotal evidence to show that that creates confusion for consume kind of like your honor was talking about they have nothing so to say that they have met their burden on the third factor here is to eliminate the third fact there is no case that has ever said it is ok to have no basis in fact and it does serve any evidence and confusion for consumers none now it in the state bar situation the judge already mentioned i don't know whether they have studies i don't follow it closely enough we're certified so i want to keep the other people out from advertising that the specialists but i don't know so i can't address that this is a proof issue and they don't even remotely try now only other issues well hidden this goes kind of to the release the force element of of of  the simple hudson test requires that even if they meet the others and they don't meet they don't meet the standard when at all they don't come close but if they meet the others they have to show that it's narrowly tailored to fit the situation the problem and the way they typically could do that would say well we have a disclaimer here let me just cite so not recognized borst specialist in their plan policy not recognized by the idea that might be a disclaimer they might be able stablish we are conceding they could that they might be able to do that that's narrow tailoring they might go beyond just parchments and there he also mentioned they might be able to go back and say for instance we're going to have a neutral standards for boards that certify there's a something called the american board of dental specialties which is essentially these were people that the worms nations they didn't have mutual standards that test whether there's a borne out that they didn't do that that's the problem we are trying to solve for evermore the said he said it's an unconstitutional restriction on plaintiffs first and then i might and then the next paragraph it said it's joined from forcing to the extent to prevent prohibits plaintiffs that went back and checked this because you in the middle did that thing that was sort of perhaps a red herring but not and that makes me want to ask you about if if we disagree with you that he facially the judge spatially enjoying this did you fail to do a cross appeal you told us that you're an appellate specialist several times where you require to do a cross appeal as the state says and i the other one of those cases this is with regard to the territory judgment in heller stand there was no cross petition from the people who had made the as applied challenge and yet a supreme court justice briar's of majority opinion says we can make was unconstitutional he says he they affirmed that the district court having made it facially valid they did not on their own all of a sudden make actually invalid in the supreme court i just think that's not the way the law and i think period that's what those cases use invalid period i think it is over reading the declaratory judgment for he can only issue an injunction for the plants themselves but just for the declaratory judgment part it is over reading his state with the just to follow up briefly on that point the judgment granted only i supplied relief across a few of the choir because that would be changing the judgement and the main point here is there's nothing in the district court order that says the plaintiffs met their burden to show that the rule could never of valid apply and so the district court could not have properly granted facial release if i could go to the first prong of central hudson we're not arguing that this relates to illegal activity or it's on lawful lawful to practice in all of these areas of dentistry but that is fundamentally different from practicing as a specialist because by using that specialised term of art you are telling the public that you have achieved special recognition by the oldest dental organization in the country and the one that the federal government looks to in its regulations or briefs and again that most of the states look to that's different from just practicing as a general position i think the most important point of that decision appears on page four forty nine the court says there that the state could have eliminated any constitutional challenge here by not limiting the terms interior designer interior designer but by allowing designers to satisfy its licensing requalification is to represent themselves as licensed interior designers that's analogous to what we have here we're not saying that a dentist can't call him or herself a dentist we're just saying that they can't use that specialist term that for decades has been reserved for something else out of date answer judge southwick hypothetical i think there could be a question for the board depending on what the advertisement exactly said but we know from rule one zero eight point five five that what you could say is john smith general dentist implants i your looking at the whole purpose of central hodgin which is to allow honest legal information to be given to the public truthful information given to the public it seems to me the state certainly has a good interest the eighty a gold standard that's what it is maybe it's not all is one way to draw the line but if you don't draw the line there it seems to me the state has to allow truthful information to get public and i don't think you disagree that somebody can practice in one of these areas there's not a specialty why can't the public be i think the public can be told that how can they do that under your regime that's too strong a word under this regulation they didn't they didn't do that under rules one o eight point five five and five six so they can as long as they say general dentist because they haven't met the specific we just talked about you just entering a judge or raj question they can't say i soly do implants nice only do one of these other non special age and that's truthful information that was certainly let someone know this is maybe doing it wrong every day but nonetheless he's learning from from doing it you know what i tried when i was trying to say is it's unclear whether that so language could be construed as implying specialization i don't know that it could be but whatever like from what you quoted it probably would be struck down by the agency because it is implying  you're saying that i'm specializing lives or i don't i don't know that that's true your honor because saying that you soley practice one particular area of dentistry isn't saying that you are a specialist and that is the term that consumers can look to and currently in for the past four decades trust to mean something that has reliable standards behind it and again i think the analysis is similar to what the ninth circuit engaged  in the a p m case hear that because dentists can say that their general dentist but they practice in this area or these two areas or whatever and they have achieve certifications from or certificates from whatever boards they want to say they can name their practices in ways that shows consumers what they offer that's not burning substantially more speech than necessary i see my time's expired they had are part of a step on the state side in this i'm just curious what is there an amicus from the other side for your side that says keep these restrictions  who are on the a d a s list of the nine specialties and they have pointed out that the reason they trust the a b a standards is because those are really tough standards and for its members to meet those standards they have to go through a lot of schooling