Friedman et al. v. Rogers et al.
440 U.S. 1 (1979)

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U.S. Supreme Court

Friedman et al. v. Rogers et al., 440 U.S. 1 (1979)

Friedman et al. v. Rogers et al.

No. 77-1163

Argued November 8, 1978

Decided February 21, 1979*

440 U.S. 1


Section 5.13(d) of the Texas Optometry Act prohibits the practice of optometry under a trade name, and § 2.02 requires that four of the six members of the Texas Optometry Board, which regulates the practice of optometry in the State, be members of the Texas Optometric Association (TOA), a professional organization of optometrists. Rogers, a Board member but ineligible for membership in TOA because of noncompliance with the code of ethics required for membership, brought an action challenging the constitutionality of these provisions. A three-judge District Court held that § 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause of the Fourteenth Amendment, but that § 5.13(d) is an unconstitutional restriction of the "free flow of commercial information" under the First Amendment. Held:

1. Section 5.13(d) is constitutional. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, and Bates v. State Bar of Arizona, 433 U. S. 350, distinguished. Pp. 440 U. S. 8-16.

(a) The use of a trade name in connection with optometrical practice conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time

Page 440 U. S. 2

by associations formed in the minds of the public between the name and some standard of price or quality. Because these ill-defined associations of trade names with price and quality information can be manipulated by the users.of trade names, there is a significant possibility that trade names will be used to mislead the public. Pp. 440 U. S. 11-13.

(b) The State's interest in protecting the public from such deceptive and misleading use of optometrical trade names is substantial and well demonstrated in this case, and the prohibition against the use of trade names is a constitutionally permissible regulation in furtherance of this interest. Rather than stifling commercial speech, such prohibition ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past. Pp. 440 U. S. 13-16.

2. Section 2.02 is also constitutional. Pp. 440 U. S. 17-19.

(a) The history of the Texas Optometry Act shows that such provision is related reasonably to the State's legitimate purpose of securing a regulatory board that will administer the Act faithfully. Pp. 440 U. S. 17-18.

(b) While Rogers has a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Texas Optometry Board, his challenge to the fairness of the Board does not arise from any disciplinary proceeding against him. Gibson v. Berryhill, 411 U. S. 564, and Wall v. American Optometric Assn., 379 F.Supp. 175 (ND Ga.), summarily aff'd sub nom. Wall v. Hardwick, 419 U.S. 888, distinguished. Pp. 440 U. S. 18-19.

438 F.Supp. 428, affirmed in part and reversed and remanded in part.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined, and in Part III of which MARSHALL and BLACKMUN, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post p. 440 U. S. 19.

Page 440 U. S. 3

Primary Holding
The First Amendment does not prevent states from prohibiting optometrists from advertising and practicing under their trade names.
A Texas law prohibited optometrists from advertising and practicing under trade names. Optometrists brought a First Amendment challenge to the law on the grounds that it restricted their free speech rights.



  • Lewis Franklin Powell, Jr. (Author)
  • Warren Earl Burger
  • William Joseph Brennan, Jr.
  • Potter Stewart
  • Byron Raymond White
  • William Hubbs Rehnquist
  • John Paul Stevens

Trade names have no inherent meaning and do not describe the price and nature of the services associated with them until consumers start to form associations between the trade names and a certain level of price or quality. This creates the potential for users of trade names to manipulate information and mislead the public, since the link between the expression and content is tenuous. Trade names are a form of commercial speech that are specifically related to business, so the First Amendment is not implicated to any degree beyond the limited protections for commercial speech.

Concurrence/Dissent In Part

  • Harry Andrew Blackmun (Author)
  • Thurgood Marshall

Case Commentary

The Court seemed concerned about the danger of confusing consumers, which is a key issue in trade names and trademarks. This is because names can be transferred through successive holders of a business, who may not provide the same quality. Consumers may be misled to expect the same quality.

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