THE BUNDESVERFASSUNGSGERICHT AND DENTIST ADVERTISING

In case you missed it: German dentists now have an easier time of advertising in the yellow pages and in the internet. Earlier this month, the German Constitutional Court [Bundesverfassungsgericht] agreed with two dentists who sought to overturn two fines (4000 and 1500 Marks) meted by the "professional district court for dentistry" (Bezirksberufsgericht fuer Zahnaerzte) for "advertising that is unworthy of the profession." The decision is here (in German). The internet advertising in question was apparently a colorful home page with personal information on the dentists (including hobbies), depictions of the tools used by the dentists, descriptions of various procedures, and the claim that "regional dialects" are spoken in this particular practice. The state-level professional dentistry court sided with the lower court and ruled that the dentists included elements in their advertising that had nothing to do with dentistry itself but rather aimed at encouraging "sympathetic emotions" in prospective clients. The yellow pages advertising listed the practices under the heading "Dentists: implantology," a category that is apparently not fully recognized by the professional organizations.

In overturning these fines, the German Constitutional Court is self-consciously defending the internet as a medium worthy of constitutional expression and setting reasoned constitutional limits on the professional associations' ability to regulate their members' advertising activities. As far as I understand these limits, they consist on the one hand of a respect for the freedom of individuals to pursue their line of work (Berufsfreiheit) even when professional norms may be bent in the process, and, on the other, the requirement that professional associations provide reasoned justifications for their restrictions on members' advertising activities.

Earlier this year, the German Constitutional Court ruled in a similar case concerning image advertising by a lawyer, and an internet ad for a private clinic.

This line of cases is interesting for several reasons. If one were thinking about the court's constituency, for example, one might think that the court is alienating established professional organizations and appealing to less tradition-minded members of the professions. To the extent that German professional regulation is seen to be restrictive of economic development, perhaps one could argue that the Court is extending protection to individuals who are likely to challenge the professional organizations and thus more likely to bring creative energies to the German economy. In addition, I would be interested to know if there is a european unity backdrop to these questions (I have no idea if there is; it's just a thought). Finally, the fact that these cases all involve commercial advertising means that the German court is following a trajectory that U.S. constitutional law has also followed: loosening professional restraints on their members in order to protect free speech values. I don't know a lot about these kinds of cases in U.S. law, so I don't want to make too much out of the comparison, but perhaps it's worth some reflection why this kind of development might occur in both U.S. and German constitutional law. The German courts do not cite U.S. case law in any of these opinions, so I'm not arguing that there is a direct influence. Still, a cynic might argue that there is a race to the bottom in professional standards -- or, perhaps, less a race than a gradual, international erosion.