Constitutional Law

This summary also appears under Litigation


Issues: Whether the plaintiff had "standing" to sue for pre-enforcement violations of his right to "commercial speech"; U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife; The "ripeness" doctrine; Reno v. Catholic Soc. Servs., Inc.; Lexmark Int'l, Inc. v. Static Control Components, Inc.; Susan B. Anthony List v. Driehaus; Carey v. Wolnitzek; "Injury in fact"; Babbitt v. United Farm Workers Nat'l Union; Steffel v. Thompson; Thompson v. Western States Med. Ctr.; Elrod v. Burns; The "threat of future enforcement"; Norton v. Ashcroft

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Kiser v. Reitz

e-Journal Number: 57972

Judge(s): Moore, Rogers, and Nixon


The district court erred by finding that the plaintiff-dentist did not have pre-enforcement standing to sue the Ohio Dental Board over regulations governing dentists' advertising because he demonstrated that he "suffered an injury in fact" - he faced a credible threat that the regulations would enforced against him, violating his First Amendment right to engage in commercial speech. Plaintiff-Kiser claimed that the Board's threat to enforce its regulations "'exert[ed] a chilling effect on his attempt to advertise'" because he wished to advertise that he performs "general dentistry" services, but the Board's regulations prohibited him from doing so. The court concluded that "Kiser's intended advertisement of his general dentistry and endodontic services - both of which he is licensed and qualified to perform - implicates a constitutional interest." His intended conduct also "arguably violates the Board's regulations." He alleged that "a credible threat of prosecution under the regulations exists." He claimed that "the Board has in the past threatened to enforce the regulations against him when he advertised or practiced general dentistry services in addition to endodontic specialty services." Also, certain letters from the Board implicitly threatened to enforce the regulations "if Kiser persisted in practicing or advertising outside the scope of his specialty." These factors created "a credible threat that Kiser will be subject to an enforcement action." Further, Kiser "alleged that it is likely that his 'injury will be redressed by a favorable decision.'" On remand, the district court "may issue a declaratory judgment that the regulations are unconstitutional or it may enjoin enforcement of the regulations against Kiser. Accordingly, Kiser's claim is ripe for adjudication, and he has standing to assert his claim in federal court." Reversed and remanded.


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