concurring in part and dissenting in part:
I concur in the majority opinion except for Part IV which holds that the Florida statutes in question violate the first amendment. Holding oneself out as a psychologist when one is not licensed to practice psychology is, in my view, inherently misleading and therefore not entitled to first amendment protection. I therefore dissent from the holding in Part IV of the majority opinion.
There is no doubt that commercial speech is protected by the first amendment, although somewhat less so than noncommercial speech. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985). But for commercial speech to come within the protection of the first amendment, it must not be misleading. Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 475, 109 S.Ct. 3028, 3032, 106 L.Ed.2d 388 (1989). “[W]hen the particular content or method of the advertising suggests that it is inherently misleading ... the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982).
The majority concludes that it is not inherently misleading for an unlicensed psychologist to hold himself or herself out as a “psychologist,” but only potentially so. It is this conclusion — central to the majority’s holding — with which I disagree.
The issue in this case focuses on what information is imparted to the public by the use of the term “psychologist.” The profession of psychology has been regulated by the State of Florida since 1957 except for a thirty-month period when the regulatory statutes lapsed under Florida’s sunset law. For many years, therefore, individuals permitted to call themselves psychologists have been licensed to practice psychology and, of course, possessed those qualifications which Florida required as a condition of licensure. They have been subject to regulation by the State and discipline by the State.
Holding oneself out as a professional not only suggests that the individual practices that particular profession but also suggests that the State has licensed the individual to practice that profession. It follows that advertising that one is a psychologist necessarily suggests to the general public that one is licensed by the state to practice that profession. Calling oneself a psychologist, therefore, is inherently misleading if such an individual is not currently licensed to practice psychology. If the possibility of deception is self-evident, the State does not need to survey the public or to produce evidence to justify its position. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 652, 105 S.Ct. 2265, 2282, 85 L.Ed.2d 652 (1985).
The cases principally relied upon by the majority—Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) and Parker v. Kentucky Bd. of Dentistry, 818 F.2d 504 (6th Cir.1987) — are distinguishable. Neither address the issue we confront today, namely, whether unlicensed “professionals” can advertise, contrary to state law, that they are in fact professionals.
A case more nearly on point is Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir.1988). In that case an organization composed of practicing account*1583ants, most of whom were not licensed certified public accountants (CPAs), challenged on first amendment grounds a Virginia statute that restricted the words unlicensed accountants could use in holding themselves out to the public, including the terms “certified public accountant, CPA, public accountant,” etc. Id. at 605. The court held that the statute was a “constitutionally permissible regulation of misleading commercial speech,” id. at 606, saying:
The state has an interest in assuring the public that only persons who have demonstrated their qualifications as certified public accountants and received a license can hold themselves out as certified public accountants. The Supreme Court has held that “advertising for professional services” may be prohibited “when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse.” R.M.J., 455 U.S. at 203, 102 S.Ct. at 937. We believe that use of the title “public accountant” by a non-CPA fairly could be characterized as inherently misleading, given the possibility, accurately stated by the district court, that “some members of the public would believe the title ... has the state’s imprimatur.”
The similarity of the title “public accountant” to “certified public accountant” is self-evident. In defining “misleading” for the purpose of the regulation of commercial speech, the Supreme Court has explained that when the possibility of deception is self-evident, the state need not survey the public. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 652-53, 105 S.Ct. 2265, 2282-83, 85 L.Ed.2d 652 (1985). Accordingly, the Board was not required to make an elaborate evidentiary showing at trial in order to establish the misleading nature of the regulated speech.
Id. at 605, 606.
Similarly, in the case at bar there is reason to believe that the use of the title “psychologist” bears the imprimatur of the State of Florida.
I acknowledge that Florida does not yet explicitly forbid the practice of psychology by anyone — regardless of their qualifications. The legislative concern, however, is clear from the statutes — it has found that the practice of psychology and the allied fields by unqualified persons presents a danger to “public health, safety and welfare.” Fla.Stat.Ann. §§ 490.002 and 491.-002. In concluding that plaintiffs’ use of the term “psychologist” is not inherently misleading, the majority reasons that the plaintiffs “are in fact psychologists and are permitted to practice that profession under current state law.” The Florida statutes define the term “psychologist” to mean one licensed as such, see Fla.Stat.Ann. § 490.-003, and fix minimum qualifications for persons seeking licensure. The legislature has made clear that no one else is qualified to practice the profession. In finding that the plaintiffs are in fact psychologists, the majority has substituted its judgment for that of the Florida legislature.
The majority’s finding that the plaintiffs are in fact psychologists is apparently based on the fact that they have some education in the field of psychology and elect to call themselves psychologists. By that reasoning one is in fact a lawyer if he has some education in the field and elects to call himself a lawyer. The Florida legislature has elected to regulate the profession, and as part of that regulatory scheme has decided who is qualified to practice psychology and who should and should not be called a psychologist. To say that the plaintiffs are permitted to practice their profession under current state law is true only in theory. To do so they must use some other title; they may not call themselves psychologists. The statutes in question are simply “title” acts that undertake to regulate the practice of a profession by prohibiting unqualified individuals from using titles associated with licensed professionals. Many states regulate professions pursuant to similar “title” acts.
*1584The majority acknowledges that Florida may constitutionally prohibit altogether the practice of psychology by unqualified individuals but holds that it may not, consistent with the first amendment, prohibit persons lacking a license from calling themselves psychologists. I do not understand the first amendment to mandate such a holding.