Professional Speech
abstract. Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical bases of professional speech and its application to controversial First Amendment questions.
First Amendment protection for professional speech rests on distinctive theoretical justifications, and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions should be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.
author.Associate-in-Law, Columbia Law School. Many thanks to Vince Blasi, Caroline Corbin, Bill Eskridge, David Fontana, Katherine Franke, Philip Genty, Kent Greenawalt, Sasha Greenawalt, Jamal Greene, Philip Hamburger, John Inazu, Renee Knake, Chip Lupu, Gillian Metzger, Henry Monaghan, Doug NeJaime, Burt Neuborne, David Partlett, Robert Post, David Pozen, Bill Simon, Alex Stein, Allison Tait, Kendall Thomas, Larry Tribe; and participants in workshops at Columbia Law School, University of North Carolina School of Law, Wayne State University Law School, Yale Law School, the 2015 Annual Conference of the Law & Society Association, and the Lavender Law National LGBT Bar Association Annual Conference 2015 for insightful comments and discussions.
Professionals speak; some speak a lot. Lawyers use verbal
communication to exercise their profession. So do psychologists. Medical advice
is dispensed via such communication as well. The list goes on. The content of
these communications, we intuitively assume, is protected. The scope of
protection, however, is elusive. At the same time, the state can regulate the
professions. Traditional forms of regulation include licensing requirements,
advertising regulations, and the imposition of professional malpractice
liability. But new forms of regulation go further: they target the content of
the communication between a professional and her client. Sometimes, such
regulation aligns with professional insights, but sometimes it contradicts
them. The resulting tension between state regulation of the professions and
professionals’ free speech interests remains underexplored. Recent cases involving professional speech1 have made this tension apparent. Can
the State of California and the State of New Jersey ban sexual orientation
change efforts (SOCE)?2 Can the State of South Dakota
require that abortion providers read to their patients a legislatively drafted
statement that does not correspond to the current state of medical science?3 In other words: do psychologists
have a First Amendment right to engage in conversion therapy? Do physicians
have a First Amendment right not to be compelled to make state-scripted,
erroneous claims about abortion to their patients? These examples represent potential
infringements on a professional’s right to free speech. But federal appellate
courts have taken opposing approaches to indistinguishable questions.4
What is strikingly—and perhaps somewhat
surprisingly—still absent from the case law and the legal literature is a
comprehensive theory of professional speech.5 The Supreme Court has never
identified, with any clear boundaries, the category of professional speech.
Nonetheless, it is implicit in a number of decisions involving
government-funded speech,6 commercial
speech,7
and other areas.8
This Article seeks to fill the lacuna left by courts and scholars by offering
an account of the doctrinal and theoretical bases of professional speech and
its application to controversial First Amendment questions. First Amendment protection for professional speech, I argue,
rests on distinctive theoretical justifications, and the key to understanding
professional speech lies in understanding the character of the so-called
“learned” professions. These learned professions, I submit, should be thought
of as knowledge communities, that is, communities whose principal raison d’être
is the generation and dissemination of knowledge.9
Conceptualizing the professions as knowledge communities not only informs the
theoretical justifications for First Amendment protection10
but also the limits of that protection, the permissibility of regulating the
professions, and the imposition and extent of tort liability for professional
malpractice.11
Imposing professional malpractice liability has never been found to offend the
First Amendment. Why that is so, however, merits further investigation.
Conceptualizing the learned professions as knowledge communities guides this
undertaking. Professionals speak not only for themselves but also as
members of a learned profession: they “assist[] individuals in making personal
choices based on the cumulative knowledge of the profession.”12
The professions as knowledge communities thus function in a way akin to what
Paul Horwitz calls “First Amendment institutions.”13 First Amendment scholars concerned
with professional speech have hinted at the connection between the professions
and institutions14
but have yet to provide a full explication. This Article takes on that task. My analysis abuts and engages the emerging institutionalist
First Amendment literature.15 In my account, it is the institutionalization of professional discourse
that builds the basis for the knowledge community. The subsequent dissemination
of that knowledge within the professional-client relationship ties the
individual professional back to the knowledge community. That the individual
professionals are bound together by the knowledge community is also the
underlying assumption of professional malpractice law, in which the knowledge
community’s standard of care determines the benchmark against which the
individual professional’s liability is assessed. This Article proceeds in four parts. Part I provides a
definition of professional speech, with particular attention to the role of the
learned professions as knowledge communities. It then situates professional
speech in the doctrinal context of the First Amendment. Commentators have
analyzed professional speech primarily in relation to—and by analogy
with—commercial speech,16 which has received increasingly
robust First Amendment protection.17
But the underlying comparison, I argue, is tenuous. The speech interests are
fundamentally different. The doctrinal fate of professional speech, therefore,
ought not to be tied to that of commercial speech. Part II undertakes a normative defense of First Amendment
protection for professional speech. The traditional justifications for speech
protection apply in a distinctive fashion to professional speech. Professional speech is unique in the way it
implicates the autonomy interests of both the speaker and the listener. I will
call “decisional autonomy interests” the interests of the listener who depends
on the information provided by a professional to make an informed decision.18
The professional-client relationship is typically characterized by an asymmetry
of knowledge. The client seeks the professional’s advice precisely because of
this asymmetry. At the same time, the agency of the listener requires that the
ultimate decision rest with her. The other autonomy interests are those of the
speakers, which I will call “professional autonomy interests.” The qualifier
“professional” signals that it is not the autonomy interest to freely express
one’s personal opinions that is at stake—as is the case in most free
speech theory—but rather to express one’s professional opinion as a member of the knowledge community. Turning then to marketplace considerations, I argue that the
classic notion of a “free trade in ideas”19
has little purchase as between the professional and the client. The
professional does not seek to subject her professional opinion to “the
competition of the market”20 when speaking
within the confines of the professional-client relationship. Yet, there is a
dimension to the marketplace idea in the professional speech context that is
generally underappreciated and comes into relief when the professions are
thought of as knowledge communities. Within the discourse of the knowledge
community itself—that is, outside the professional-client
relationship—a marketplace of ideas exists, which we might call an
epistemic marketplace. Professional standards are generated by testing insights
in that marketplace. The current state of the knowledge community’s discourse
provides the foundation for the professional’s advice. Finally, theories of democratic self-government also provide
a normative basis for the protection of professional speech. The information
that the knowledge community communicates to clients through individual
professionals cumulatively enhances the basis upon which public opinion is
formed. This is not simply a matter of enabling self-government through
ordinary deliberation by adding another opinion to the public discussion.
Rather, professionals contribute specialized, technical knowledge to which lay
citizens would not otherwise have access. It is precisely in their capacity as
members of knowledge communities that professionals enhance the process of self-governance,
and so as members of knowledge communities that they should enjoy First
Amendment protection. Part III considers the appropriate limits on professional
speech. It interrogates the extent to which the state may regulate the
professions’ educational and knowledge standards. It also considers the
interplay between the First Amendment and tort liability for professional
malpractice. In order to avoid malpractice liability, professionals must
exercise their profession according to the degree and skill of a well-qualified
professional. For example, the Restatement (Third) of the Law Governing Lawyers
states, “[A] lawyer who owes a duty of care must exercise the competence and
diligence normally exercised by lawyers in similar circumstances.”21
It is thus the knowledge community that determines the standard of care. This
Part engages contemporary tort scholarship that incorporates this insight by
focusing on the profession’s distinctive expertise.22 This emerging approach mirrors my
concern with granting deference to the knowledge community’s insights. The extent of tort liability, I argue, should be consistent
with the scope of protection of the knowledge community’s discourse under the
First Amendment. Only if liability and protection are coextensive can this
liability mechanism yield fair results. If liability is properly measured
against the standard of care determined by the profession, the knowledge
community’s formation of this standard should remain uncorrupted and its
application within the professional-client relationship should receive robust
First Amendment protection. Part IV applies this approach to controversial First
Amendment disputes, returning to the cases referenced at the outset. In so
doing, it considers how the theory of professional speech focused on knowledge
communities plays out in litigation terms, a question that traditionally
remains underexamined in the First Amendment literature. State regulation interacts with
knowledge communities’ insights in multiple and varied ways. It sometimes
reinforces professional knowledge, and it sometimes contradicts such knowledge.
The questions raised in cases challenging regulations that contradict
professional knowledge play out against the larger jurisprudential backdrop
concerning the role of legislative findings of fact. Whose knowledge should
state regulation rely on? The knowledge community theory of professional speech
provides a conceptual framework to assess this question. This theory of
professional speech, informed by the role of knowledge communities, thus allows
us to reconceptualize how we think about government involvement in professional
speech. Under this view, to borrow loosely from Alexander Meiklejohn, the First
Amendment is directed against the “mutilation of the thinking process” of the
knowledge community.23 When a lawyer advises a client, she engages in professional
speech. Likewise, when a physician advises a patient, she engages in
professional speech. Scholarship and case law seem to assume, almost
intuitively, that professional speech exists. But the instinct that
professional speech is distinctive as a category of speech, and the way in
which it is distinctive, is not sufficiently explained in the case law or First
Amendment theory. This Part first explores the character and function of the
professions before distinguishing professional speech from professionals’
private speech and from government speech. Throughout this Article, I argue
that the professions should be thought of as knowledge communities. The role of
knowledge communities defines the type of speech that ought to be protected
from outside—particularly, state—interference, and the extent to
which state regulation of the professions is permissible. This Part then situates professional
speech in First Amendment doctrine. The concept is implicit in numerous Supreme
Court decisions, though it is not identified as a separate category of speech.
Courts and scholars sometimes analogize professional speech to commercial
speech, which is increasingly receiving First Amendment protection from state
interference. While a heightened level of protection is desirable as a
doctrinal matter in the professional speech context as well, the underlying
analogy is tenuous. In questioning the analogy between commercial speech and
professional speech, I suggest that professional speech more than commercial
speech should receive robust First Amendment protection. The First Amendment fragments speech. We treat different
types of speech differently all the time.24
But to the extent we treat professional speech differently for different
professions—thus distinguishing between speakers engaged in arguably the
same type of speech—differential treatment is problematic. For example, why
should the speech of a lawyer be more protected than that of a physician?25 Nonetheless, the level of attention
afforded to the regulation of professional speech varies significantly across
professions. First Amendment questions surrounding lawyers’ professional
speech, for instance, remained largely unexplored until recently.26 Legislative interference with
physician speech, conversely, has received comparatively more attention.27
Unlike other analyses focused on specific professions,28
I aim to develop a broad conceptual approach to professional speech. Doing so
avoids creating professional speech silos within the First Amendment and the
subsequent problem of sorting professional speech into subcategories. A unified
approach to professional speech also shields some professions from being
“especially vulnerable to excess constriction by judges and juries too
concerned with the moral or social undesirability of those . . . carrying the
First Amendment claim.”29 Consider, for
example, the situation of reproductive health care providers. There may be less
desire to protect professional speech concerned with abortion—and more
tolerance for government demands to read inaccurate, legislatively drafted
scripts, compelled descriptions of mandatory ultrasounds and the
like—based on moral disapproval.30 But if professional speech is worthy
of protection as such, then the underlying topic of the speech is irrelevant to
its protection. A unified approach to professional speech, then, provides
protection for all professional speech. I submit that the kind of professional
speech worthy of protection, irrespective of the particular profession
involved, includes three core elements: (1) a knowledge community’s insights,
(2) communicated by a professional within the professional-client relationship,
(3) for the purpose of providing professional advice. The first element
concerns the role of knowledge communities; the second and third elements
distinguish the context and purpose. I will address these elements in turn. The connection to a knowledge community circumscribes the
type of communication rendered as professional advice. Not all occupations are
considered professions. There are certain core professions we intuitively think
of, medicine and law traditionally chief among them.31 Psychologists, dentists,
pharmacists, and accountants—to only name a few—are likely part of
the group as well. The list has expanded historically, and some occupations
that were once considered only marginally professionalized have now come to be
understood as professions.32 The process of professionalization
is contested, and I do not aim to offer my own theory. Rather, I am concerned
with the question of what First Amendment protection for professional speech
looks like once an occupation has attained professional status. Thus, for the
remainder of this Article, whatever the current debates are at the margins, I
am primarily concerned with the core professions. And although the clergy is
historically considered the third quintessential learned profession next to
medicine and law,33 I explicitly
exclude that group from my discussion of professions and professional speech.34 Definitions of “the professions” vary,35 but the most relevant defining
feature for present purposes—and one generally shared among the numerous
definitions—is their knowledge-based character.36 As we have already observed, the
professional-client relationship is asymmetric: the professional has knowledge
the client does not have, which leads the client to seek out her advice. The
reason the professional’s advice is valuable to the client is that she
possesses knowledge that the client lacks.37 Because the professions are knowledge-based, I contend that
they should be thought of as knowledge communities. Individual professionals
“may differ in their individual judgments about particular issues, [but] their
role as professionals traditionally implies their subscription to a body of
knowledge that is shared among their peers.”38
What are knowledge communities?39
I use the term to describe a network of individuals who share common knowledge
and experience as a result of training and practice.40
They are engaged in solving similar problems by drawing on a shared reservoir
of knowledge, which, at the same time, they help define and to which they
contribute. Their common understandings allow for the generation and exchange
of insights within the community. Consequently, members of knowledge
communities have shared notions of validity41
and a common way of knowing and reasoning (consider the old adage of “thinking
like a lawyer”).42
Additionally, the knowledge community shares certain norms and values:
professional norms. This is not to say that knowledge communities are
monolithic. But their shared notions of validity limit the range of acceptable
opinions found within them. The connection to a knowledge community is a distinctive
feature of the role of professionals. In a recent case, the Fourth Circuit
considered the question of professional speech protection for the “spiritual
counselor” (fortune teller) known as Psychic Sophie, who assertedly engaged in
providing predictive advice just like a lawyer.43
The Fourth Circuit, relying on Justice White’s concurrence in Lowe v. SEC, stated: “Professional
speech analysis applies . . . where a speaker ‘takes the affairs of a client
personally in hand and purports to exercise judgment on behalf of the client in
the light of the client’s individual needs and circumstances’ . . . .”44
This definition of professional speech allowed the court to conclude that
Psychic Sophie’s “activities fit comfortably within the confines of
professional speech analysis.”45 Whether or
not this assessment of her profession is accurate,46
it importantly lacks the connection to a knowledge community. First Amendment scholars concerned with professional speech
have hinted at the connection between the professions and institutions.47
This emerging institutionalist First Amendment literature is concerned with
colleges and universities, libraries, and the press.48
But knowledge communities, while related to these institutions, are in a sense
less “institutionalized.” Their most institutionalized incarnations are professional
associations. The Fourth Circuit, for example, invoked the presence or absence
of “accrediting institution[s] like a board of law examiners or medical
practitioners” in the Psychic Sophie case.49
Likewise, Justice Breyer in dissent once noted that when speech “is subject to
independent regulation by canons of the profession[s] . . . the government’s
own interest in forbidding that speech is diminished.”50
My account of the role of knowledge communities in the professional speech
context makes sense of these intuitions. But professional norms are generated
outside of these associations as well. Conferences and the professional
literature, for example, are sites of professional knowledge formation, even
though they are not necessarily embodied in specific institutions or
professional associations.51 Of course, professional associations have held, at one point
or another, positions they now consider erroneous or outdated. For instance,
the American Medical Association was at the forefront of the campaign to
criminalize abortion in the nineteenth century,52
and the American Psychological Association (APA) did not declassify
homosexuality as a mental disorder until 1973.53
But the professions themselves can and do revise their positions on the basis
of their ongoing intellectual development, as these examples attest.54
In adopting, changing, or updating these positions, the knowledge communities
use their own professional standards, elaborated by and through their own
community.55 Knowledge communities have specialized expertise and are
closest to those affected; they must have the freedom to work things out for
themselves. The professions as knowledge communities have a fundamental
interest in not having the state (or anyone else, for that matter) corrupt or
distort what amounts to the state of the art in their respective fields.56
This is the key feature of professional discourse and the limiting principle of
professional speech. The resulting benefit is the generation of insights within
the knowledge community that would not otherwise occur. As knowledge
communities, then, the professions should be granted deference.57 But where knowledge
communities—and, by extension, individual professionals—do not
possess such specialized knowledge or competence, such deference is not
required as a matter of professional speech. No amount of specialized training,
for instance, by itself makes a professional more competent to render value
judgments. The individual professional is linked to the knowledge
community in multiple ways. She “is understood to be acting under a commitment
to the ethical and intellectual principles governing the profession and is not
thought of as free to challenge the mode of discourse or the norms of the
profession while remaining within the parameters of the professional
discussion.”58
The individual professional thus serves as the conduit between the knowledge
community and the client. Malpractice liability likewise assumes this
connection in imposing the profession’s standard of care on the individual
professional.59 I will return to the role of
professional associations and state involvement in regulating the professions
in Part III. For now, conceptualizing the professions as knowledge communities
allows us to focus our discussion on professional speech as distinct from other
forms of speech. Turning to the second and third constitutive elements of
professional speech—(2) that it is communicated by a professional within
the professional-client relationship, (3) for the purpose of providing
professional advice—it is fundamentally important to recognize that
professional speech is not private speech. Daniel Halberstam and Robert Post
define professional speech as “‘speech . . . uttered in the course of
professional practice,’ as distinct from ‘speech . . . uttered by a professional.’”60 This definition crucially
distinguishes professional speech from private speech.61 The line between the professional’s private speech and
professional speech, then, can be drawn by considering the presence or absence
of a professional-client relationship. “Where the personal nexus between
professional and client does not exist, and a speaker does not purport to be
exercising judgment on behalf of any particular individual with whose
circumstances he is directly acquainted,”62
the speaker is not engaged in professional speech. When the professional’s
advice is distributed generally or to the public at large, outside of the
professional-client relationship, it is most likely not professional speech.63
Investment advice distributed to the general public, for example, does not
constitute professional speech;64 nor do books
on how to avoid probate,65 diet plans,66
or mushroom guides,67 even though
inaccurate information so disseminated may be harmful. When professionals speak
in such a manner, they act as ordinary citizens participating in public
discourse and accordingly enjoy ordinary First Amendment protection. The third element of professional speech—that it is for
the purpose of providing professional advice—constrains what the
professional may say in the context of the professional-client relationship,
and so helps distinguish professional speech from other kinds of speech a
professional might engage in, whether in public or private. It bears emphasis
that First Amendment protection for speech that is not professional advice is
unrelated to the speaker’s membership in a knowledge community.68 Although the speaker’s professional
training may inform the content of such speech, she is not disseminating the
knowledge community’s insights within a professional-client relationship for
the purpose of providing professional advice. In fact, in many instances, the
speaker may be articulating disagreement with the knowledge community’s
consensus, which the professional is not free to do when providing professional
advice.69 Post, for instance, recounts the “controversy over the safety
of dental amalgams.”70 There, a dentist questioned the
professional consensus that dental fillings containing certain substances were
safe. Although the dentist no doubt was informed by his professional
background, the expression of his opinion was entirely private speech.71
“Within public discourse,” Post explains, “traditional First Amendment doctrine
systematically transmutes claims of expert knowledge into assertions of
opinion.”72
Any non-dentist’s speech questioning the safety of such fillings would enjoy
the same First Amendment protection, though the public would probably ascribe
less persuasive force to a non-professional’s assessment of the matter.73 The same reasoning makes political statements
like “vote for Obama,” even if uttered within the context of a
professional-client relationship, not professional speech but the
professional’s private speech.74 It is not communicated for the purpose of
providing professional advice, and it is likely not connected to the insights
of the knowledge community—even if the knowledge community may have
reached a consensus that one candidate for public office will better serve
their interests than another.75 Another important distinction is between professional speech
and government speech. Professional speech must be communicated by a
professional, and professionals can operate in different institutional settings
with varying degrees of government involvement. The professional may be a
government employee, or a government program may fund the professional’s
service. Alternatively, the government sometimes seeks to have private
individuals disseminate its own message. Under the government speech doctrine,
“[t]he government alone may determine its message to the exclusion of all
others.”76 Just as the state can be
anti-smoking or anti-obesity, it may express a preference on abortion.77 Thus, when the state tries to enlist
a private speaker, a key concern is whether the message is attributed to the
state or the professional.78 As I have argued elsewhere, effective
control over speech should determine responsibility for the message.79 This, in turn, can distinguish government
speech from professional speech, and so mark the boundary up to which the state
can prescribe speech. When, for example, the state demands that physicians
communicate certain claims to their patients in materials of the physicians’
own design, the state effectively tries to obscure authorship even though it is
the state that retains effective control over the message communicated.80 Such speech, then, should be understood as
an attempt by the government to co-opt or dictate professional speech.
According to the theory developed here, such prescriptions would constitute
inappropriate regulation of professional speech. But the situation is different
where state regulation permits professionals to disavow the state’s message. In
Planned Parenthood of Southeastern
Pennsylvania v. Casey, the state demanded that a certain message be
communicated,81 but the Court’s decision suggested that
disclaimers were permissible. The next section more closely examines the
doctrinal status of professional speech in light of Casey and other cases that concern government speech. Whether a “professional speech doctrine” currently exists is
subject to debate. The Fourth Circuit recently asserted that “[t]he Supreme
Court has recognized the regulation of occupational speech under the
‘professional speech’ doctrine at least since Justice Jackson’s concurrence in Thomas v. Collins,” a 1945 case.82
Similarly, some commentators point to Justice White’s concurrence in Lowe v. SEC as declaring the existence
of the professional speech doctrine.83
Others are more skeptical.84 Although the Supreme Court has never identified a category of
“professional speech” for First Amendment purposes, its existence is implicit
in a number of cases.85 The Court
most directly addressed the question of First Amendment protection for
professional speech in the joint opinion in Casey.86
But the concept is embedded in other decisions as well.87 With Casey—arguably
the most on-point treatment—as a starting point, the doctrinal basis of
professional speech appears indeterminate at best. But a wide-angle view
reveals that, despite the initial lack of clarity in Casey, the Court seems to have at least a hunch that speech
communicated by professionals in a professional-client relationship for the
purpose of providing professional advice is somehow distinctive. In Casey, the joint
opinion addressed the First Amendment in a somewhat cryptic paragraph: All that is left of petitioners’ argument is an
asserted First Amendment right of a physician not to provide information about
the risks of abortion, and childbirth, in a manner mandated by the State. To be
sure, the physician’s First Amendment rights not to speak are implicated . . .
but only as part of the practice of medicine, subject to reasonable licensing
and regulation by the State . . . . We see no constitutional infirmity in the
requirement that the physician provide the information mandated by the State
here.88 Scholars have been struggling to make sense of this.89
Some appellate courts have arguably taken this obscure statement as license to
espouse an exceedingly narrow view of professional speech.90
There is now marked and explicit disagreement among the circuits regarding its
proper interpretation.91 But beyond this puzzling paragraph, Casey hints at the doctrinal status of professional speech. The
joint opinion directly addressed government speech, compelled speech, and the
right to receive information (or not). The government, as the joint opinion and
Justice Stevens’s opinion agreed, may communicate its own preference with
respect to abortion.92 Regarding
compelled speech, the joint opinion found that the government may demand, as
part of obtaining the woman’s informed consent, that physicians distribute
state-drafted materials and make certain statements to their patients that are
“truthful and not misleading.”93 However, the
state neither required that the providers communicate this information as their
own—which could have made it more difficult for patients to attribute the
message to the state—nor prohibited the providers from expressing their
disagreement with the state’s policy. Moreover, there was a provision for
physicians to refrain from providing certain information if they deemed it
harmful to their patients.94 Finally, with
respect to the right to receive information or not, women could decline to view
the materials.95 As a matter of existing First Amendment doctrine, then, Casey may be read as suggesting that
while the government is free to express its own opinion, it may not enlist
(potentially unwilling) professionals as mouthpieces to disseminate its
message.96
Also in the abortion context, and pre-dating the Casey decision by a year, Rust v. Sullivan further illuminates the
doctrinal status of professional speech.97
Although Chief Justice Rehnquist framed the issue as concerning
“abortion-related activities,”98
thus apparently avoiding the specific question of professional speech,99
that is in fact what the case concerned.100
The Court noted that “[it] could be argued . . . that traditional relationships
such as that between doctor and patient should enjoy protection under the First
Amendment from Government regulation, even when subsidized by the Government.”101
But it did not resolve the question, suggesting that the regulations in
question “[did] not significantly impinge upon the doctor-patient
relationship.”102 The Chief
Justice gave the following reasons: first, the doctor was not compelled “to
represent as his own any opinion that he does not in fact hold;” second, the
professional relationship was not “sufficiently all encompassing” because it
“does not provide post-conception medical care” and consequently, “the doctor’s
silence with regard to abortion cannot reasonably be thought to mislead a
client into thinking that the doctor does not consider abortion an appropriate
option for her.”103 Finally,
“[t]he doctor [was] always free to make clear that advice regarding abortion is
simply beyond the scope of the program.”104 Justice Blackmun’s dissent rejected the “direct regulation of
dialogue between a pregnant woman and her physician.”105
In Justice Blackmun’s view, “the regulations impose[d] viewpoint-based
restrictions upon protected speech . . . .”106
Importantly for this discussion, Justice Blackmun framed the problem of
limiting the scope of advice in terms of both the patient’s expectations as
well as professional demands.107 Full,
comprehensive advice, in other words, was not only what a pregnant woman
expected of her physician—government-funded or not—but also what
the medical profession expected of its members. Rust anticipated the
points made in Casey with respect to
attribution of speech within government speech doctrine.108
Whether or not the Chief Justice appropriately characterized the extent of the
doctor-patient relationship, it is noteworthy that the Rust Court did acknowledge the possibility of First Amendment
protection in this professional context. Moreover, it is striking that the
Chief Justice suggested drawing an analogy between the doctor-patient
relationship and the treatment of universities under the First Amendment.109
This particular institutional analogy likely supports conceptualizing the
professions as knowledge communities. Several decisions concerning legal advice give further
doctrinal guidance on professional speech. In Legal Services Corp. v. Velazquez, the Court held unconstitutional
a restriction on providing legal advice that “prohibit[ed] legal representation
funded by recipients of [Legal Services Corporation (LSC)] moneys if the
representation involve[d] an effort to amend or otherwise challenge existing
welfare law.”110 As Justice Kennedy explained, “the
LSC program was designed to facilitate private speech, not to promote a
governmental message. Congress funded LSC grantees to provide attorneys to
represent the interests of indigent clients.”111
This makes the legal advice different from government speech—according to
Justice Kennedy, “[t]he lawyer is not the government’s speaker”112
and the legal advice is a form of private speech.113
Yet the Velazquez Court did recognize
that there is a professional dimension to this speech. The legal system depends
on the traditional role of the attorney,114
which includes “complete analysis of the case, full advice to the client, and proper presentation to the court.”115
Limiting the range of permissible speech “prohibits speech and expression upon
which courts must depend for the proper exercise of the judicial power.”116
In light of these statements, it is evident that the Court understands
professional speech to be distinct from government speech, even when funded by
the government. And, although the Court did not make the point explicitly, it
appeared to recognize the special import of professional speech—at least
that of a lawyer—as distinct from ordinary private speech. Finally, the two attorney speech cases from 2010, Milavetz v. United States117
and Holder v. Humanitarian Law Project,118
have implications “for those desiring advice about any other area of law where
Congress may decide to legislate away the attorney’s ability to advise her
client and the client’s right to receive that advice.”119
Milavetz concerned limitations on
attorney speech imposed by the Bankruptcy Abuse Prevention and Consumer
Protection Act (BAPCPA).120 The Act prohibits “debt relief
agencies”—which the Court held attorneys to be—from advising
clients “to incur more debt in contemplation of such person filing” for
bankruptcy under the applicable provisions.121
In Milavetz, the Court disagreed with
the Eighth Circuit’s characterization of the “statute as a broad, content-based
restriction on attorney-client communications that is not adequately tailored
to constrain only speech the Government has a substantial interest in
restricting.”122
As Justice Sotomayor explained, the phrase “in contemplation of bankruptcy”
indicates abusive conduct.123 So
understood, “advice to incur more debt because of bankruptcy . . . will
generally consist of advice to ‘load up’ on debt with the expectation of
obtaining its discharge—i.e.,
conduct that is abusive per se.”124
Importantly, Justice Sotomayor cited Rule 1.2(d) of the ABA Model Rules of
Professional Conduct in rejecting the claim that the BAPCPA provisions prohibit
frank discussion between lawyer and client.125
Under the crime-fraud provision, lawyers are not prohibited from discussing
fraudulent or criminal conduct, but they may not advise their clients to engage
in it. In other words, the Court looked to professional standards to provide
guidance on the scope of the Act’s prohibition as it concerned “attorney
speech.”126 The Court here demonstrated not only
an appreciation for the type of professional speech that occurs within the
lawyer-client relationship, but also for the role of the professional rules of
conduct in defining the scope of this relationship. The speech at issue in Holder
v. Humanitarian Law Project,127
by contrast, occurred outside the boundaries of the lawyer-client relationship;
the statute prohibited the formation of that relationship in the first place.128
Various domestic groups and individuals sought to provide information and
training to groups designated as “foreign terrorist organizations” on how to
assert their own legal claims.129 The Court
upheld the “material support” provision of the Antiterrorism and Effective
Death Penalty Act against a First Amendment challenge.130
In dictum, Chief Justice Roberts acknowledged that the decision does not
suggest “that any future applications of the material-support [for terrorism]
statute to speech or advocacy will survive First Amendment scrutiny.”131
Nonetheless, some commentators assert that the decision “is likely to have a
chilling effect on attorney advice.”132
The Court in this case allegedly underappreciated the role of attorneys who
provide “speech that constitutes legal ‘expert advice or assistance.’”133 In sum, all of these decisions hint
at the Court’s incipient conception of professional speech. While professional
speech is conceptualized as somehow distinctive, however, the Court lacks the
theoretical foundation to properly evaluate First Amendment protection of such
speech. Courts134 and scholars135 have analogized professional speech
to commercial speech. But, I argue, the analogy is tenuous; the underlying
speech interests are fundamentally different. The content of professional
speech, distinctively, is defined by the professional’s connection to the
knowledge community. Most prominently perhaps, Halberstam and Post each propose
and defend models that serve as a basis for the analogy. In doing so, however,
Halberstam reconceptualizes commercial speech doctrine itself; Post cautions
against its wholesale adoption. Halberstam advances the “bounded speech
institutions” model, and Post advances a professional speech variation of the
democratic self-government model. Both focus on the structure of the
communication. The doctrinal starting point for assessing commercial speech
remains the canonical, though increasingly criticized,136 Central
Hudson test.137 The Court has ostensibly relied on
this doctrinal basis in its expansion of First Amendment protection for
commercial speech.138 Writing at
the turn of the twenty-first century, Halberstam observed that the classic
position of minimal protection of commercial speech was beginning to appear in
flux.139
Since then, there has indeed been a considerable expansion of First Amendment
protection for commercial speech. The Court now affords what comes close to
strict scrutiny review in commercial speech cases.140 But the extent of protection should not be the primary reason
to analogize the two types of speech unless doctrine is tethered to theory.
This requires “a deeper kinship between the two forms of communication.”141
For Halberstam, this deeper kinship is rooted in the “paradigm of bounded
speech institutions.”142 Both
professional and commercial speech in this model can be seen as “relational” or
“bounded speech institutions,” though Halberstam acknowledges that “the
relationship between physician and patient and the duties attendant to that
relationship are substantially deeper than those between vendor and purchaser.”143
He makes an (ostensibly descriptive) institutional or structural argument,
suggesting that the Court may be seen as implementing a
constitutional theory of bounded speech institutions, based on its perception
of various socially defined relationships between interlocutors and,
accordingly, rendering contextual judgments about the extent of government
intervention that is both necessary for and compatible with the preservation of
the particular institution.144 With respect to both professional and
commercial speech “[t]he boundaries of the discourse . . . may be policed, but,
conversely, as long as the speaker remains within the boundary of the
institution, the speaker would be engaged in protected speech.”145 In other words, state regulation
serves a definitional purpose—mapping the boundaries of discourse. While
speakers remain within those bounds, interference with their speech is
impermissible.146 The
so-bounded communicative relationships are subject to “contextual First
Amendment review that is specifically centered around the social relation, as
opposed to an abstract review such as that traditionally applied to the
street-corner speaker.”147 Under this model, in both the
professional and the commercial speech contexts, “[t]he government may neither
suppress the speech entirely nor remodel the institution to its liking.”148 Conceptually, it seems plausible to view both commercial and
professional speech in this way. But, while I agree with the differentiation
between speech within and outside of a bounded discourse and with awarding
First Amendment protection accordingly, I do not embrace the suggested parallel
between commercial and professional speech. The “bounded speech institutions”
model assumes the equal position of professional and commercial speech in
contrast to political or private speech, which is traditionally unbounded.149
However, it does not sufficiently account for the differences between
professional and commercial speech. In order to do so, such a structural view
is not enough.150 The bounded discourse approach encompasses
the individual professional-client relationship, but, in doing so, undervalues
the role of the professional’s connection to the knowledge community. In terms
of content, the individual professional serves as a conduit for the knowledge
community’s insights. The content of the communication and its relation to the body
of knowledge possessed by a knowledge community is distinctive in the professional speech context. So is the
imposition of professional malpractice liability and its relation to the
professional standard of care. This unique relationship with the knowledge
community demands a thicker account of the communication. Thus, the analogy
falls short if it is based solely on the structural “bounded speech
institutions” model. It explains why the state may impose liability as a
structural boundary, but it does not define the content of the boundedness.
This makes Halberstam’s model conceptually useful, but ultimately incomplete.
To establish a theoretical basis for evaluating professional speech, this model
should be supplemented with the theory of knowledge communities. Post, in setting up the commercial speech-professional speech
analogy, focuses on three distinctive features of commercial speech: first, the
concern about the flow of information to the public; second, the value attached
only to truthful, non-misleading information (and, consequently, the
application of content- and viewpoint-based regulations); and third, the
permissibility of disclosure requirements based on the emphasis on the public’s
right to receive truthful and non-misleading information.151
These three features, in Post’s assessment, closely track the concerns in the professional
speech context. In contrast to speech as part of public discourse, the focus of
commercial speech, like that of professional speech, is its informational
value.152
The knowledge-enhancing character of both types of speech provides the link to
the democratic self-government values underlying the First Amendment.153
However, Post offers two distinctions between commercial
speech and professional speech, which complicates the analogy.154
The first concerns dissemination of commercial information to the public at
large as opposed to the dissemination of professional information only to the
client. In an age of sophisticated, highly personalized advertising, however,
this characterization of the dissemination of commercial speech may no longer
be descriptively accurate.155 The second
distinction lies in the presupposed equality of the speaker and the listener in
commercial speech and their relative inequality in professional speech. Of
course, extensive psychological research on the part of advertisers makes the
speaker and the listener unequal in the commercial speech context as well.
Product placement, subconscious messaging, and the like give a distinct
advantage to commercial speakers over their audiences. The Court may have
originally had it right in assuming the vulnerability of consumers, though not
because the consumer “lacks sophistication,”156
but because the advertiser has an overabundance of it.157
Thus, Post rightly cautions against pushing the analogy.158 The commercial speech analogy, then,
while initially appealing, falls short. It lacks descriptive accuracy and
analytical force on numerous counts. A preferable approach, therefore,
considers the theoretical justifications for protecting professional speech on
its own merits. Conceptualizing the learned professions as knowledge
communities allows us to rethink professional speech in light of the
traditional theoretical justifications for First Amendment protection.
Professional speech as a distinctive form of speech is worthy of First
Amendment protection. Situating professional speech within the standard
theoretical accounts illustrates the unique ways in which this type of speech
intersects with the underlying interests. While some scholars have emphasized
the democratic self-government justification for protecting professional
speech,159
this Part suggests that other First Amendment theories, based on autonomy
interests and the marketplace of ideas, also justify—in a way distinct
from other speech contexts—First Amendment protection for professional speech.
Without taking a position on which of these traditional theories best justifies
First Amendment protection,160 and without
ascribing any particular ranking to them,161 I suggest that professional speech
interests sound in all standard theories. With respect to autonomy interests,
the role of the professions as knowledge communities reframes the importance of
professional autonomy. Although the emphasis is traditionally on the listener
when the informational value of the communication is at issue, the speaker’s
autonomy interests are implicated as well. Likewise, the knowledge community
idea reframes the application of the marketplace theory. The individual
professional, under this view, is closely connected to the marketplace of ideas
that may be found within the discourse of the profession. Finally, with respect
to democratic self-government, the knowledge community concept influences the
application of that theory of First Amendment protection for speech. Its effect
can be seen in two directions. First, it explains how the individual client can
benefit from professional advice directly and how the knowledge basis of the
entire community can be enhanced by the individual professional’s communication
of the knowledge community’s insights to one client. Second, by providing a
close link between the individual professional and the knowledge community, it
brings together the individual focus of those who favor a participatory
perspective of democratic self-government with those who would focus on the
role of the collective.162 The autonomy interests implicated by professional speech are
somewhat distinct from other speech contexts.163
I will call “decisional autonomy interests” the interests of the listener who
needs the information to make an informed decision.164
Decisional autonomy in the professional speech context is very different from
the commercial speech context. While commercial speech targets the autonomy of
the listener to make commercial choices—thereby contributing to the
ability to make independent decisions—the target of professional speech
is much more closely connected to the self, at times concerning the physical or
psychological integrity of the listener’s own person. Moreover, the speaker pays for the speech in the
commercial speech context (though, of course, the goal of commercial speech is
often to persuade the consumer to buy a product or service) whereas it is the listener who pays for the speech in the professional
speech context, indicating that the economic interests do not align. In
professional speech, by contrast with commercial speech, payment for services
is secondary to the knowledge-based nature of the service provided.165
The other autonomy interests are
those of the speakers, which I will call “professional autonomy interests.” The
qualifier “professional” signals that it is not so much the autonomy interest
to freely express one’s personal opinions—as is the case in free speech
theory concerning public discourse—but rather to communicate insights of
the knowledge community as a member of the profession. The professional relationship is typically characterized by
an asymmetry of knowledge. Clients seek professionals’ advice precisely because
of this asymmetry. “Clients are presumed to be dependent upon professional
judgment and unable themselves independently to evaluate its quality.”166
This is not unique to the learned professions. As Kathleen Sullivan has pointed
out, “Lawyers know far more about law than their clients, but information
asymmetry creates moral hazards (such as the incentive to lie about the gravity
of a problem) for auto mechanics as well.”167
These hazards are exacerbated when the client’s personal health or freedom or
significant financial interests are at stake. Thus, “the government may
properly try to shield the client from the professional’s incompetence or abuse
of trust.”168 The listener’s interests are only served if the professional
communicates information that is accurate (under the knowledge community’s
current assessment), reliable, and personally tailored to the specific
situation of the listener. The client’s agency requires that the ultimate decision
rest with her. The nature of the professional-client relationship gives rise to
fiduciary duties.169 To bridge
the knowledge gap, and to ensure the protection of the client’s decisional
autonomy interests, the professional has to communicate all information
necessary to make an informed decision to the client. Thus, the interest in full disclosure
is linked to the autonomy interests of those seeking the advice of
professionals. To the extent that this is facilitated by an informed consent
requirement, as in the medical context, the potential for corruption of the
information by outside interference is particularly troublesome. As Justice
Stevens pointed out in his opinion in Casey,
“Decisional autonomy must limit the State’s power to inject into a woman’s most
personal deliberations its own views of what is best.”170 But while this concern is perhaps most
obvious in cases involving bodily integrity,171 other forms of professional advice should
be equally uncorrupted for the same reason. Concerns regarding the agency of
the listener obtain in all professional speech contexts. To the extent autonomy interests matter in professional
speech, the focus tends to be on the listener’s interests.172
But the speaker’s autonomy interests are also at stake. Some commentators fall
back solely on the professional’s personal autonomy interests.173
Professionals as individuals of course have a First Amendment right to speak
their own mind in public discourse, perhaps even challenging the knowledge
community’s insights.174 But this is
not a primary concern in the professional speech context. Quite to the
contrary, there is an expectation within the professional-client relationship
that the professional does not
challenge the knowledge community’s insights in dispensing professional advice.175 The professional not only speaks for herself, but also as a
member of a learned profession—that is, the knowledge community. And that
community has an interest of its own. Only if the community remains autonomous
can it develop and refine the specialized knowledge that is its essence and the
source of its social value. The professional speaker has a unique autonomy
interest in communicating her message according to the standards of the
profession to which she belongs, precisely in order to uphold the integrity of
its knowledge community. Physicians, for instance, should not be compelled to
speak in a way that undermines their profession’s scientific insights. This goes beyond the structural interest in protecting the
“bounded speech institutions.”176 It also concerns the content of the communication. While some commentators assert that
the professional’s autonomy interests guard against compelled speech “on
matters of religion, politics, and values,”177 the professional autonomy interests reach
much further. Corrupting the content of a communication to a client within the
professional-client relationship fundamentally concerns the professional
autonomy interests of the professional. This is an interest that goes to the identity
of the professional as a member of a profession,178 rather than the professional’s individual
autonomy interest, which is entirely unrelated to her professional role.
Conceptualizing the professional as a member of a knowledge community brings
the autonomy interest in articulating the uncorrupted insights of the knowledge
community into focus. In the realm of professional speech, the classic Holmesian
notion of a “free trade in ideas”179
would seem to have little purchase.180
While “the best test of truth is the power of the thought to get itself
accepted in the competition of the market,”181
the professional does not seek to subject her professional opinion to this test
when speaking within the confines of the professional-client relationship.182 The pragmatic dimension of the
market metaphor does not apply: experience and truth in the current assessment
of the knowledge community are quite obviously located with the professional,
making it inapposite “to capture the idea that truth must be experimentally
determined from the properties of experience itself.”183
Indeed, the state may ensure that clients seeking professional advice are not
harmed by “false” ideas by way of imposing professional malpractice liability.184
Thus, the classic marketplace paradigm is inapplicable to professional speech
within the professional-client relationship. Nonetheless, there is another facet to the idea of the
marketplace theory as applied to professional speech.185
Although scholars have observed that professional speech is distinct from other
speech, “which generally treats the truth as just ‘another opinion,’”186
the details remain underexplored. As Paul Horwitz has put it, in the professional
speech context, “expertise based on a body of specialized knowledge is the very
basis of the value and legitimacy of the speech.”187
It is here that the considerations underlying professional speech intersect
with those underlying scientific and academic speech.188
There exists a marketplace of ideas internal to each profession.
The issue here is the formation of professional knowledge (rather than, as we
saw with the autonomy justification, its dissemination). Within the discourse
of the profession, the acceptance of professional insights will depend on the
rules established by the profession. Scientific insights, for example, will be
subjected to peer review and hypotheses will be subjected to the test of
falsification.189 These
internal processes serve a purpose akin to that of the Holmesian marketplace of
ideas. But, to the extent that such a marketplace of ideas exists as what we
might call an epistemic marketplace, and that professional standards are
generated by testing insights on that marketplace, nonprofessionals do not
participate in it. The current state of the art provides the foundation of the
professional’s advice (though current debates within the field may influence
what counts as a defensible professional position).190
As knowledge communities, then, the professions should be awarded deference. As Post notes, the marketplace theory
“requires the protection only of speech that communicates ideas and that is
embedded in the kinds of social practices that produce truth.”191 It
is the professional’s connection to the knowledge community that makes the
marketplace theory relevant. If the account offered here is an accurate
portrayal of the formation of professional knowledge within the knowledge
community, the step from the community to the individual professional follows
straightforwardly. In reciprocal fashion, the individual professional’s
interest lies in preserving the integrity of the knowledge community’s
insights, just as the knowledge community’s interest lies in having the
individual professional communicate its insights correctly. While this
complements the professional autonomy interests, as just described,192
the focus of this theory is on preserving the integrity of the search for
truth—that is, the formation of professional knowledge—within the
discourse of the knowledge community. Focusing on the informational value of professional speech,
the democratic self-government theory would find such speech worthy of First
Amendment protection because it “cognitively empowers public opinion” and thus
“serves the value of democratic competence.”193
(This idea is also reflected in the commercial speech analogy, as discussed
earlier.)194
But the democratic self-government value of professional speech might be
greater still. Professionals supply information to clients that not only concerns
the clients’ own lives but may also “require collective action to change rights
and responsibilities in society.”195
For example, courts196 and scholars197
have emphasized the role of lawyers in democratic self-government. Other
professionals, too, may contribute to expanding the knowledge base upon which
citizens can make informed decisions. Yet the democratic self-government theory builds on some
debatable assumptions. It may seem questionable whether a client or patient
would, in fact, be primarily concerned with the policy implications of the
professional advice she receives. Is the lawyer’s client really thinking about
broad questions of access to justice? Is the physician’s patient really
thinking about health policy? Or are both primarily concerned with having their
individual problems solved? While these questions are sometimes acknowledged in
the literature, the abstract possibility of taking political action based on
the individualized professional advice received appears sufficient to justify
applying the theory to professional speech.198 Within the theory of democratic self-government, two distinct
strands arguably stand in opposition to each other: one emphasizes the
“safeguarding of collective processes”; the other emphasizes individual rights.199
Conceptualizing individual professionals as part of the larger knowledge
community—as conduits communicating the knowledge community’s insights,
and thus as trustees for the speech of others—reconciles the two
democratic self-government approaches in the professional speech context. The
close connection between the individual professional and the knowledge
community links the individual role of the professional and the collective role
of the knowledge community to which the professional belongs. *** As this Part has demonstrated, the
traditional theoretical justifications for First Amendment protection apply to
professional speech in a unique way. All standard theories suggest that
professional speech deserves robust First Amendment protection. This Part considers the appropriate limits on professional
speech. The state may regulate the professions, but “[b]eing a member of a
regulated profession does not . . . result in a surrender of First Amendment
rights.”200
And as Eugene Volokh has noted, “it’s far from clear that the government should
be completely free to regulate professionals’ speech to their clients.”201
Therefore, it is worth unpacking what state regulation of the professions means
and determining when such regulation directly and impermissibly affects
professional speech. Section III.A briefly considers the history of regulating the
learned professions. Initially self-regulating, the professions developed a set
of norms that solidified over time. State involvement in professional
regulation followed. Turning to three typical kinds of regulations—namely
concerning advertising, access to the profession, and unauthorized
practice—I will demonstrate that professional speech concerns do not
ordinarily arise in these contexts. These types of regulations do not generally
concern the body of professional knowledge that forms the repository for
individual professionals’ advice to clients and its subsequent communication.
Thus, while these types of regulations may have far-reaching consequences, they
do not implicate professional speech interests as defined here.202 This makes the importance of
distinguishing between regulation of the profession
and regulation of professional speech
palpable. Section III.B then turns to the interplay between the First
Amendment and tort liability for professional malpractice. The tort regime in
this context functions as a form of regulation.203
The imposition of malpractice liability has never been found to offend the
First Amendment. But the conventional answer as to why that is so is
unsatisfactory. Stated in an oversimplified way, the argument is that the state
may regulate the professions, and the permissibility of regulation is
incompatible with the First Amendment.204 There is an expansive body of literature on professional
malpractice law—its effects on professionals and clients, larger policy
implications, and possible need for reform. All of this is well beyond the
scope of this discussion. My point here is relatively narrow and conceptual.
Professionals may be held liable for “unprofessional” speech—that is,
speech within the professional-client relationship, for the purpose of
providing professional advice, that fails accurately to communicate the
knowledge community’s insights. The liability scheme thus draws on
the same body of professional knowledge that I have argued deserves First
Amendment protection. If liability is appropriately allocated against this
benchmark, the liability scheme normatively supports—rather than
undermines—protection of professional speech. In order to achieve fair
results under this scheme, professionals may be held liable only under a
standard that is exclusively determined by the profession. It follows that the
knowledge community’s insights and their communication to the client by the
individual professional must remain uncorrupted. State regulation of the professions is not incompatible with
protecting professional speech. Maintaining a focus on the role of knowledge
communities, this section outlines the extent of permissible regulation of the
professions in light of its history. The historical perspective illuminates the
nexus between licensing, state power, and regulation of professions and
professionals. There is a long history of self-regulation of knowledge
communities.205
Traditionally, certain professions themselves created barriers to entry into
the profession, policed membership, and established a distinct professional
“culture.” This culture then solidified into a set of professional norms,
enforced by professional bodies overseeing the standards of entry and
membership. The state assumed some of these functions over time, either taking
on the role of regulator directly or through its interaction with professional
associations.206
Licensing requirements for law and medicine in the United States likely date
back to the founding period,207 although
there was a noticeable retreat from licensing in the Jacksonian era.208
The relationship between the regulated professions and the regulating state
generally remained one of collaboration; in the case of licensing, for
instance, state involvement was overwhelmingly welcomed—even “eagerly
sought”209—by
the professions.210 There are now numerous ways in which the state regulates the
professions. For example, “[t]he medical and legal professions . . . have long
been subject to licensing and supervision by the State ‘for the protection of
society,’ and the Court has indicated that such regulations would be upheld if
they ‘have a rational connection with the applicant’s fitness or capacity to
practice’ the profession.”211 I will
consider briefly three prototypical areas of state regulation of the
professions: advertising, access to the profession, and unauthorized practice.
None of them, as the following discussion demonstrates, directly address the
types of professional speech issues with which I am concerned. Therefore, they
do not constitute “limits on professional speech” in the strict sense of the
term. The takeaway is simple, but important: protecting professional speech
does not make state regulation of the professions impossible. One prominent context in which professional regulation as a
matter of free speech has been litigated in the past has been advertising.212
In a series of cases, the Supreme Court has dealt with questions of advertising
and solicitation regulations for professional services, such as legal services,213
accounting services,214 and dental215
or medical services.216 The gist of
these decisions is that professional advertising is largely—though not
uniformly217—protected
as a matter of commercial speech.218
Advertising for professional services is commercial speech, and
“[c]onstitutional protection for attorney advertising, and for commercial
speech generally, is of recent vintage.”219 Historically, professional ethics prohibited advertising, and
courts consistently deferred to professional ethics in upholding advertising
restrictions. As Walter Gellhorn noted in the mid-1970s, “[t]he unethicality of
advertising has long been an article of faith among professionals, and the
courts have generally shared this faith.”220
This deference to professional norms was long-standing. Chief Justice Hughes,
in a 1935 case involving dentists’ advertising, stated: “What is generally
called the ‘ethics’ of the profession is but the consensus of expert opinion as
to the necessity of such standards.”221 But, as Kathleen Sullivan observed, “[t]he decisions
upholding professional ethics regulations against First Amendment challenges
are difficult to square with the Court’s other advertising decisions.”222
And Chief Justice Hughes’s statement—that professional ethics are part of
the profession’s expert opinion—goes too far. No specialized knowledge is
needed for the question of whether advertising for professional services is
appropriate; it is a purely economic question. As a matter of institutional
competence, courts can rely on their own expertise in economic matters.223
This helps us understand why courts have turned away from
their earlier deference to professional norms prohibiting advertising and why,
in embracing commercial speech protection for advertising against
professionals’ wishes, they have nevertheless begun to regulate professional
speech. On matters of regulation that do not directly concern the specialized knowledge
of knowledge communities that constitutes the basis for professional advice,
professional speech protection should not require broad deference to the
profession. The professional advertising her services is not speaking as part
of the knowledge community to transmit advice to a client. She speaks only as a
private commercial actor. Professional advertising, like commercial
advertising, thus is properly reviewed as a matter of commercial speech.224 Beyond advertising, the state may determine educational and
other fitness standards for the profession. Imposing limits on access to a
profession by establishing educational standards or licensing and certification
requirements does not affect professional speech directly. To be sure, there is
a long-recognized tension between restricting access to ensure competent advice
and restricting access in order to limit competition.225
And there certainly is potential for abuse.226
“On the one side is the need to preserve the integrity of professional
knowledge; on the other side is the fact that professional knowledge sometimes
reflects sociological prerogatives of class and power that should be
disciplined by democratic political purposes.”227
Indeed, some have pointed out that “there is a large body of historical,
economic, and sociological literature that suggests that the primary motivation
for professional licensing laws is economic self-interest.”228
Without taking a position on the extent of self-interest in professional
licensing, it seems relatively unproblematic from a First Amendment perspective
to permit some form of access control.229 Sometimes, First Amendment problems can arise if access to
the profession is denied because of the content of an applicant’s speech. One
prominent example is the case of George Anastaplo, whose bar application was
denied by the Illinois Bar due to his refusal to answer questions regarding his
views on the Communist party.230 (He famously
argued his own case before the Supreme Court, lost in a 5-4 decision, and
became a law professor instead.)231
But the types of First Amendment problems arising here are different from those
in the professional speech context. Here, it is not the knowledge community’s
specialized knowledge that the state interferes with but rather the individual
professional’s opinion.232 Thus, an
appropriate shield against such restrictions may be found in the professional’s
individual First Amendment rights. Finally, unauthorized practice regulations raise issues
similar to regulations concerning access to the profession. First Amendment
challenges to unauthorized practice rules—complicated by definitional
opacity233—have
mainly centered on the question of whether individuals may disseminate certain
“information” (as distinct from professional “advice”). Here, unlike in the professional
speech context, however, regulation polices the formation of a
professional-client relationship rather than the communication of professional
advice within such a relationship. The state regulations just discussed establish the boundaries
of professional-client discourse without directly affecting its content.
Structurally, they define the speakers’ “social roles” within the “specific
communicative relationship.”234 In this
respect, Halberstam correctly observes that “government regulation is not
invariably destructive of communicative interests, but may indeed foster the
communicative relationship and assist in institutionalizing the bounded
discourse.”235
In other words, “content-based government regulation may enhance, rather than
compromise, the speech practice.”236
Yet, as already discussed, this structural understanding does not go far enough
in determining the substance of the bounded discourse—the knowledge
community’s insights provide this dimension. In sum, then, state regulation may
limit access to the professions or what professionals may do in certain
circumstances. The wishes of the professions in these respects may be laudable
or not. But as long as state regulation remains disconnected from the knowledge
that forms the basis of the professionals’ advice, it does not pose the type of
First Amendment professional speech problems I am concerned with here. State
regulation of the professions is far from unproblematic, but the problems that
arise are not of the same kind as those directly concerning professional
speech—that is, the communication of the knowledge community’s insights,
within the professional-client relationship, for the purpose of providing
professional advice. The mere fact that the state may regulate the professions
therefore has little bearing on the question of First Amendment protection for
professional speech. The tort regime directly addresses harms caused by “unprofessional”
speech, that is, bad professional advice. Conventionally, the relationship
between the First Amendment and professional malpractice liability—in
this case, medical malpractice—is framed as follows: Medical activity that consists primarily of speech
does not automatically deserve First Amendment protection. There are instances
when speech essentially amounts to the practice of medicine and could be
considered a regulated activity. For example, physician advice regarding the
necessity or wisdom of a particular surgical procedure could give rise to
malpractice liability, which many would agree has few First Amendment
implications even though the advice is itself speech.237 But this common framing is not entirely
accurate in light of the role the knowledge community plays. Juxtaposing professional speech
protection and professional malpractice liability leads to conceptual
inaccuracy. It is an exaggeration to assert that professional speech is
not—and ought not be—protected because the professional is subject
to tort liability for “unprofessional” speech. The contrast between permissible
regulation and protection is not as stark as it is commonly portrayed—and
the two are certainly not irreconcilable.238 In fact, as already indicated, they are
complementary. Protection and liability are best conceptualized as two sides of
the same coin, and the substantive content of both is determined by the
insights of the knowledge community. It is correctly understood that “[m]alpractice law protects
the vulnerability of clients by requiring professionals to maintain strict
standards of expert knowledge.”239 But the
imposition of liability for professional malpractice is not actually the same
as regulation of the profession, or even a limit on professional speech in the
strict sense of that term. Malpractice liability ensures that the
professional’s speech accurately communicates the knowledge community’s
insights within the professional-client relationship. On the flip side,
“unprofessional” speech is unprotected.240
Post explains the connection between malpractice liability
and professional knowledge as follows: [M]alpractice law outside of public discourse
rigorously polices the authority of disciplinary knowledge. It underwrites the
competence of experts. Doctors, dentists, lawyers, or architects who offer what
authoritative professional standards would regard as incompetent advice to
their clients face strict legal regulation. In such contexts, law stands as a
surety for the disciplinary truth of expert pronouncements. By guaranteeing
that clients can plan to rely on expert professional judgment, law endows such
communication with the status of knowledge.241
Post’s presentation is compelling. But it has
some unstated premises. In particular, for his gloss to be correct, the
knowledge community must decide for itself what “disciplinary truth” is, and
any outside interference with their determination ought to be met with great
skepticism. This is already implicit in the way malpractice liability
works. The standard of care against which a given professional is judged to
determine malpractice liability is whether she has exercised the profession
according to the degree and skill of a well-qualified professional. A lawyer
“must exercise the competence and diligence normally exercised by lawyers in
similar circumstances.”242 Likewise, “a doctor commits
malpractice when he treats a patient in a way that deviates from the norms
established by the medical profession.”243
It is thus the knowledge community that determines the standard of care.
Moreover, only the knowledge community’s specific insights matter. Deference is
thus awarded to the core knowledge, not to peripheral interests.244 This mirrors conceptually the First
Amendment interests of the knowledge community and its members. There may be variations as to who constitutes the appropriate
reference group (i.e. whether a national standard or a local standard is
applied as the baseline).245 But the
technical approach is generally the same: a professional standard is juxtaposed
against the individual professional’s activities.246
The imposition of liability does not encompass which specific advice may be
given. It only asks whether the advice rendered is appropriate as a matter of
professional care.247 As one
commentator points out in the medical malpractice context, “the medical
profession single-handedly determines the entries into treatment-related
liability for malpractice.”248 The extent of liability under the
common law should be congruent with the scope of protection of the knowledge
community’s discourse under the First Amendment. Only if liability and
protection are coextensive can this liability mechanism yield fair results. If
liability is properly measured against the standard of care determined by the
profession, the knowledge community’s formation of this standard should remain
uncorrupted and its application within the professional-client relationship
should receive robust First Amendment protection. Post hinted at this mechanism
in asserting that “we should expect to see First Amendment coverage triggered
whenever government seeks . . . to disrupt the communication of accurate expert
knowledge.”249 Independent of the professional malpractice claim, a separate
cause of action exists in the medical context based on the physician’s duty to
inform the patient of relevant information relating to the treatment.250
There is a troubling history of paternalism in the medical profession that
limited the amount of information shared with patients.251 But the last century has seen the
recognition of patients’ autonomy interests and, as a result, significant
changes in the doctor-patient relationship.252
“Autonomy soon became the driving principle used to resolve issues within
medicine,”253
and, with it, “informed consent doctrine . . . driven in large part by a desire
to combat the paternalism of medicine.”254 The doctrinal origins of informed consent are often traced to
a 1914 New York Court of Appeals decision authored by then-Judge Cardozo in which
he stated: “Every human being of adult years and sound mind has a right to
determine what shall be done with his own body . . . .”255
The real turn toward information, however, occurred in decisions from the
1970s. In Canterbury v. Spence,
emblematic of the trend, the D.C. Circuit emphasized the need for information
in self-determination.256 Accordingly,
this shift was accompanied by a shift in the treatment of informed consent from
sounding in battery to negligence.257
There is continued debate over whether the current tort
paradigm appropriately accounts for patients’ interests, or whether it
continues to be too physician-centric.258
Courts have adopted a negligence approach to informed consent with “the
principle of self-determination as the bedrock of modern informed consent
doctrine.”259
But the variations that persist tend to value either the physician’s role or
the patient’s autonomy more heavily.260
The two standards are the reasonable patient standard and the reasonable
physician standard.261 With respect to the First Amendment, then,
“[a]ny physician who has been held liable for failure to obtain the informed
consent of his patient could argue that the law impairs his autonomy because it
requires him to speak in ways that he would prefer not to.”262
But here, too, the knowledge community’s standards limit the extent to which a
physician could reasonably assert such a thing. This is because “the scope of
disclosure is bound only by what is material to medical, as opposed to
non-medical, interests. Cabining the information that physicians must disclose
to that which is material to patients’ medical
decisions avoids holding physicians accountable for matters that go beyond
their expertise.”263 It
is again the knowledge community’s professional knowledge that circumscribes
the relevant information.264
And it is therefore necessary to keep the knowledge community’s
information-formation process free from outside interference. Thus, imposing an
informed consent requirement does not technically restrict the professional’s
First Amendment rights if appropriate disclosure is considered a part of
medically necessary information flow within the doctor-patient relationship. It
is “unprofessional” speech—or “unprofessional” silence—that is
punished. When state
regulation directly targets “unprofessional” speech as a matter of tort
liability, as discussed in the previous Part, it ensures that information
consistent with the knowledge community’s insights is conveyed. As long as
state regulation reinforces the knowledge community’s insights—which it
does when the knowledge community’s standard is applied as the liability
benchmark—no significant problems arise. State regulation delineates the
professional-client relationship. And state regulation appropriately tracks
concerns related to safeguarding the flow of accurate information from the
knowledge community through the conduit of the individual professional.265 As is well understood in the literature,
“[g]overnment regulation and licensing of the profession as well as the legal
enforcement of professional norms thus may assist in establishing the trust
that patients can place in their physicians.”266 Indeed, “content-based government
regulation may enhance, rather than compromise, the speech practice.”267 But this is only true as long as the
regulation mirrors, and does not contradict, professional norms. When the state
overreaches, significant problems arise. This is the fundamental problem with
new types of state regulation we are seeing now. This Part demonstrates how the
knowledge community-focused theory of professional speech works when applied to
controversial First Amendment questions, returning to the cases referenced at
the outset.268 Some of these regulations directly target
and attempt to alter the core of the knowledge community’s insights and their
communication from professional to client. The following three sections
illustrate a spectrum of regulations that defer to the professional standard,
(partially) codify the professional standard, or compel professionals to speak
in a manner that contradicts the professional standards of the knowledge
community (or prohibits the professional from communicating the knowledge
community’s insights). These forms of regulatory interaction between
legislatures and knowledge communities suggest that state regulation of the
professions can sometimes be supportive of professional speech rights and
sometimes be in tension with them. The types of facts
relevant in professional speech cases—as in a variety of other constitutional
cases that turn on questions of fact—“are not of the ‘whodunit’ variety
of what happened between the parties. They are instead more generalized facts
about the world: Is a partial-birth abortion ever medically necessary?”269
Or, in the professional speech context, is legal advice to load up on debt in
anticipation of bankruptcy always fraudulent? Is SOCE therapy harmful? Does
terminating a pregnancy result in an increased risk of suicide? The crux lies
in determining whose knowledge we should rely on to provide answers. The following discussion is embedded in a larger
jurisprudential context. A long-standing typology distinguishes between
legislative and adjudicative facts.270
Legislative facts are not only the facts found by legislatures in enacting
legislation but also the facts that adjudicative bodies find to apply beyond
the confines of a particular case.271
The distinction has important implications for the questions of fact review
that come into sharp relief when findings of fact deviate from the knowledge
community’s insights. The following discussion considers how First Amendment
theory plays out in litigation, a problem that has not traditionally received
much attention from First Amendment theorists. In doing so, it takes into
account important aspects of procedure surrounding the litigation of First
Amendment claims.272 In Milavetz, the Court upheld the
Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) relying in
part on the grounds that it aligned with the profession’s own definition of
permissible communication within the lawyer-client relationship.273 Interpreting the restriction on attorney
speech from the perspective of the knowledge community ensured that professional
speech concerns did not arise. From the First
Amendment perspective, this approach constitutionalizes the professional
standard. This happens in other doctrinal areas as well. In Sixth Amendment
doctrine, for instance, the right to effective counsel to a certain degree constitutionalizes
professional standards.274 Thus, in Padilla v. Kentucky, the Court noted that “[t]he weight of
prevailing professional norms supports the view that counsel must advise her
client regarding the risk of deportation.”275 Beyond applying professional standards in
effective counsel cases,276 this conceptual approach aligns speech
regulations in a manner consistent with First Amendment protection of
professional speech. This “constitutionaliz[ation] of individuals’ professional
roles”277 goes beyond delineating the
professional-client relationship. It gives the relationship substantive content
by deferring to the knowledge community’s insights. It also has
procedural implications.278 Here, it is important to note as a
threshold matter that the Supreme Court “never set forth a general test to
determine when a procedural safeguard is required by the First Amendment.”279 Yet “[t]he institutional characteristics of
the American judicial system are . . . of central
importance in realizing the constitutional guarantees.”280 Reconceptualizing the role of the
professions as knowledge communities, and advancing a theory of professional
speech as I propose, has significant implications for the allocation of
authority in the judicial process. The integrity of
professional advice is protected by the First Amendment, as well as by ordinary
tort law, which subjects “unprofessional” advice to malpractice liability. But
whereas in an ordinary tort law case the jury verdict is conclusive, First
Amendment protection of the professional standard gives the professional
potentially valuable legal protection. At a procedural level,
constitutionalizing the professional standard hands important questions to the
judge. On review, these questions are subject to independent assessment of the
facts by the court. The resulting procedural allocation of fact review takes
account of the interest in maintaining the integrity of professional speech.281 Ultimately, the knowledge community-focused
theory of professional speech results in a significant shift of decision-making
and review authority to the judge. This gives procedural protections to the
professional who speaks in accordance with the knowledge community’s insights,
but does not protect the professional who fails to do so. The justification for contracting the jury’s role flows
directly from the First Amendment interests underlying professional speech,
discussed in Part II. The fundamental interest lies in accurately communicating
the knowledge community’s insights to a client seeking professional advice.
Whether speech is protected as professional speech rests on whether it
accurately conveys the knowledge community’s insights. California’s SOCE
ban282 and similar legislation modeled after it283 arguably “tread[] on ill-defined areas of
First Amendment law.”284 Following the Supreme Court’s denial of
certiorari in the California cases upholding the ban against First Amendment
challenges, the ban will go into effect,285 and legislatures elsewhere may be
emboldened to enact similar legislation.286 The Ninth Circuit
held the SOCE ban to regulate conduct rather than speech.287 Following the Ninth Circuit, a federal
district court in New Jersey likewise concluded that that state’s SOCE ban does
not regulate speech but conduct.288 However, “the ‘conduct-speech’ distinction
is likely to be more misleading than helpful here. When the government
restricts professionals from speaking to their clients, it’s restricting
speech, not conduct.”289 Creating a circuit split on the issue, the
Third Circuit disagreed with the Ninth Circuit in holding that conversion
therapy is speech.290 I contend that the Ninth Circuit and the
Third Circuit rightly upheld the respective SOCE bans, though for the wrong
reasons.291
Under my account, the activity regulated by the SOCE legislation—“talk
therapy”—is speech.292 But as professional speech, it is a
specific kind of speech. It is the speech that communicates a knowledge
community’s insights within a professional-client relationship for the purpose
of providing professional advice. The California and
New Jersey legislatures enacted their findings by referring to various
professional organizations’ statements on SOCE.293 Nonetheless, the codification approach is
not entirely unproblematic. For one, there is the problem of legislative
findings.294 The bill passed by the California
legislature entangles the factual and normative elements typical for
legislative findings: “Being lesbian, gay, or bisexual is not a disease,
disorder, illness, deficiency, or shortcoming. The major professional
associations of mental health practitioners and researchers in the United
States have recognized this fact for nearly 40 years.”295 Instead of deferring entirely to the
knowledge community, the legislature adopts a factual assertion as the premise
underlying the legislation. In this instance, the premise is shared by the
knowledge community, but it is conceivable that a legislature may enact as a
legislative finding a position that has not yet reached majority status or
consensus within the knowledge community. In the most egregious instances, as
discussed in the next section, the legislative findings may be diametrically
opposed to the knowledge community’s insights. Some suggest that
there is no consensus within the “psychological establishment” regarding the
harms of talk-therapy SOCE.296 Thus, “[a]ccounting only for clinical
evidence of SOCE’s harmfulness could, at least at this point, rationalize only
a ban on physical interventions like aversion therapy . . . .”297 But it is difficult for both legislatures
and courts to evaluate the scientific literature and determine whether a
consensus exists.Here, the more
workable approach is to defer to the knowledge community. Indeed, the APA
follows a broad definition of harm caused by SOCE therapy.298 The legislature may rightly defer to that
professional standard. As a corollary, we would also expect tort liability for
licensed professionals who engage in conversion therapy.299 Yet the codification approach may prove
inefficient. In order to accurately reflect the knowledge community’s insights,
the statute has to be flexible over time, since the knowledge community’s
insights might change.300 Consider here also
the ban’s limited scope. In addition to the legislature having to choose among
scientific opinions that may not be entirely clear within the profession, the
legislation’s limited scope might raise concerns. If the knowledge community
deems conversion therapy harmful for everyone, limiting the ban to minors may
not properly reflect the knowledge community’s insights.301 On the one hand, the underinclusiveness
resulting from the law’s limited reach might be seen as First Amendment protective:
less speech is restricted. On the other hand, under the knowledge
communities-centered theory of professional speech I offer, it raises the
problem of selective enactment. Under my account of coextensive liability and
protection, consider an adult patient who receives conversion therapy, which is
not prohibited by the legislation. The adult later suffers adverse effects and
sues the mental health provider for malpractice. Given the statute’s limited
reach, the mental health provider might invoke the First Amendment as a
defense. But if the First Amendment is properly understood as protecting the
knowledge community’s insights and their subsequent communication and if
malpractice liability properly mirrors that understanding by sanctioning
“unprofessional” speech, the limited scope of the statute should be of no help
to the mental health provider. How would the theory
of professional speech offered here play out in practice? Consider first the
example in which a licensed mental health provider (a) wants to engage in
conversion therapy—attempting to use the First Amendment as a sword (as
in Pickup)—or (b) engages in
conversion therapy and, under the ban, faces revocation of her license and
attempts to use the First Amendment as a shield. Consider then a second example
in which a licensed psychologist engages in conversion therapy and is sued for
malpractice by a patient.302 In the two scenarios set out in the first example, the
procedural story would play out as follows: In (a), the licensed mental health
provider would argue that SOCE is protected under the First Amendment. The
question of First Amendment coverage is one for the judge. If professional
speech coverage is determined by deference to the knowledge community, the
judge will not find that SOCE is protected under the First Amendment as a
matter of professional speech. In scenario (b), the licensed mental health
provider would argue that revocation of the license is impermissible because
the SOCE ban infringes on her First Amendment rights, and the subsequent events
would unfold as in scenario (a). The shift to the judge is mirrored in the malpractice
example. Only “unprofessional” speech is subject to malpractice liability.
Professional speech—that is, communication of the knowledge community’s
insights within the professional-client relationship for the purpose of
providing professional advice—however, is not. The most
problematic—and, under this theory of professional speech, most likely
impermissible—type of regulation is one in which the state either demands
that the professional communicate information that is incompatible with the
knowledge community’s insights or prohibits the professional from communicating
the knowledge community’s insights.303 In addition to offending the individual
professional’s interest in communicating accurate and relevant professional
information, these types of regulation also offend the knowledge community’s
interests in having its insights disseminated accurately by members of the
profession.304 An example of compelling the professional
to convey inaccurate information is the informed consent requirement at issue
in the Planned Parenthood Minnesota,
North Dakota, South Dakota v. Rounds
litigation, in which physicians have to inform patients of an “[i]ncreased risk
of . . . suicide.”305 An example of the state prohibiting the
professional from communicating accurate information to the client is on
display in the medical marijuana cases. Similar problems arise when the state
determines what constitutes relevant information, such as in the mandatory
ultrasound cases, or attempts to proscribe some information as irrelevant, a
constellation that recently arose in Florida, where doctors are prohibited from
inquiring about gun use or ownership. I address these examples in turn. The suicide advisory
at issue in the Rounds litigation
represents a recent instance of direct state interference with the knowledge
community’s insights. A South Dakota statute requires “the disclosure to
patients seeking abortions of an increased risk of suicide ideation and
suicide.”306 The district court and a panel of the
Eighth Circuit held that the suicide advisory infringed doctors’ First
Amendment rights.307 The South Dakota statute required doctors
to disclose “all known medical risks of abortion.”308 The Eighth Circuit panel emphasized the importance
of the word “known.” It crucially noted: “Legislatures have ‘wide discretion to
pass legislation in areas where there is medical and scientific uncertainty,’
but the suicide advisory asserts certainty on the issue of medical and
scientific knowledge where none exists.”309 What is “known” as a matter of professional
knowledge is for the knowledge community to decide, not the state legislature. On partial rehearing
en banc, limited to the issue of the suicide advisory, however, the Eighth
Circuit reversed, holding that the required disclosure of increased risk of
suicide ideation and suicide was truthful, non-misleading, and relevant.310 The en banc plurality stressed the state’s
ability to regulate in the face of “medical and scientific uncertainty,”311 relying on Gonzales v. Carhart,312 and demand that physicians provide the
suicide advisory.313 But two separate concurrences interpreted
the plurality’s opinion to “require only a disclosure as to relative risk that the
physician can adapt to fit his or her professional opinion of the
conflicting medical research on this contentious subject”314 and that “the physician [is] free to
augment that description [of the relative risks as reflected in the
peer-reviewed literature] based on his or
her professional judgment.”315 The concurrences thus give somewhat more
weight to professional knowledge and deference to the individual professional. One critic of Rounds II suggests that “the Eighth
Circuit should have performed a more robust First Amendment inquiry, calibrated
toward ensuring clinically and professionally appropriate speech within the
doctor-patient relationship.”316 Doing so would have required the court to
anchor its inquiry in a theory of professional speech. My theory would allow it
to do so. Under the theory I propose, the knowledge community’s insights are
the first element of professional speech. In deciding whether the speech is
protected by the First Amendment, the judge would have to determine whether the
knowledge community’s insights are being communicated. The suicide advisory
controversy also illustrates the problem of using terminology in legislative
fact-finding that may be inconsistent with the knowledge community’s usage. The
South Dakota statute “used ‘risk factor’ in a manner inconsistent with its
medical meaning, leaving doctors ‘to guess as to the meaning the legislature
intended to give to the phrase.’”317 The district court noted that “the
legislative drafters ‘may not have fully understood the meaning of this phrase
as used in the medical profession.’”318 Deference to the profession avoids
confusion as to the meaning of terms of art within the discourse of the
knowledge community. The contemporaneous reproductive
rights controversy over mandatory ultrasounds, while compelling doctors to
speak in a state-mandated manner, is slightly different in that it does not
require the disclosure of false
information.319 Rather, it demands the communication of irrelevant information toward an
arguably nonscientific ideological end (dissuading women from obtaining an
otherwise legal professional service).320 As compelled ideological speech, it
suggests proper First Amendment analysis should be based on the principles set
forth in Wooley v. Maynard321 and West
Virginia State Board of Education v. Barnette.322 But the Fifth Circuit upheld a Texas
mandatory ultrasound and sonogram statute as “the epitome of truthful,
non-misleading information” that can be required by the state in the course of
regulating medical practice.323 The Fourth Circuit, by contrast, struck
down a similar piece of North Carolina legislation.324 Judge Wilkinson did note that “[t]his
compelled speech . . . is a regulation of the medical profession.”325 Nonetheless, it “extend[s] well beyond” the
measures the state has ordinarily employed to ensure informed consent.326 In the end, the Fourth Circuit rejected the
regulation as compelled speech violating the First Amendment. In so doing, the
court “borrow[ed] a heightened intermediate scrutiny standard used in certain
commercial speech cases.”327 Yet, as discussed in Section I.C above,
that analogy is unsatisfactory. Thus, while the Fourth Circuit reaches the
right outcome in the case, it does so on feeble theoretical footing. The Texas
and North Carolina mandatory ultrasound regulations represent precisely the new
type of aggressive state regulation directly targeting professional-client
communications. Under the knowledge community-focused theory of professional
speech, the professional is to decide what is relevant professional
information. The knowledge community’s insights not only determine what
accurate information is, but also what is relevant in any given situation
according to the specific circumstances of the client. The flip side of
compelling professionals to make statements that do not correspond to the knowledge
community’s insights is prohibiting them from giving accurate advice. One
prominent example involves the threat to “prosecute physicians, revoke their
prescription licenses, and deny them participation in Medicare and Medicaid for
recommending medical marijuana.”328 Prohibiting this type of professional
communication raised the question of the extent to which regulation of
professional speech is permissible under the First Amendment.329 The district court held that “the First
Amendment protects physician-patient communication up until the point that it
becomes criminal . . . .”330 Therefore, “[t]he First Amendment allows
physicians to discuss and advocate medical marijuana, even though use of
marijuana itself is illegal.”331 The Ninth Circuit affirmed.332 Under the theory of
professional speech advanced here, communication about the medical benefits of
marijuana use would be protected as a matter of professional speech. Even if
insights regarding the benefits of marijuana were not uniformly shared within
the knowledge community,333 communicating them within the
physician-patient relationship does not offend the knowledge community’s
insights in the way communicating erroneous statements does. This highlights
the difference between unclear (or emerging and as yet untested) insights and
false (tested and rejected) assertions. It is for the knowledge community to
decide the content of its insights rather than for the state to determine them.
The legislatively enshrined Rounds
suicide advisory thus patently offends the professional knowledge formation and
dissemination process. So does the classification of marijuana as a drug listed
in Schedule I of the Controlled Substances Act, according to which it has “no
currently accepted medical use.”334 Just as the state
may not decide for professionals what constitutes relevant information and
compel them to communicate it (as in the mandatory ultrasound example), the
state may not decide in their stead what constitutes irrelevant information and prohibit professionals from communicating
it. The State of Florida, for instance, prohibits doctors from asking questions
about guns as a matter of course.335 The Eleventh Circuit held this restriction
on a professional’s speech to be constitutional as “a legitimate regulation of
professional conduct.”336 Just as the state may impose malpractice
liability “for all manner of activity that the state deems bad medicine,”337 it may decide “that good medical care does
not require inquiry . . . regarding firearms when unnecessary to a patient’s
care.”338 Under the court’s view, it is thus up to
the state to determine what constitutes appropriate care. But it is misleading
to assert, as the Eleventh Circuit did, that the state imposes liability for
activities that the state deems bad
medicine. Rather, the state’s imposition of liability should track what the knowledge community deems bad medicine.339 Applying the knowledge community-focused
theory of professional speech proposed here, the state legislature
impermissibly deemed all routine inquiries concerning firearms to be
irrelevant. Under this theory, it is for the professional to decide—based
on the knowledge community’s insights—what constitutes relevant
information within the professional-client relationship. These examples illustrate how the exchange of information
between a client and a professional suffers in the face of regulatory
overreach. A focus on the role of the knowledge community’s body of knowledge
brings the attendant distortions into sharp relief. As demonstrated above, the
fundamental defect in these types of regulation is the direct state
interference with the content of the body of professional knowledge itself. As noted at the outset, some professionals speak a lot: “Most
of what many lawyers, investment advisors, accountants, psychotherapists, and
even doctors do is speech.”340 It is
therefore all the more troubling that there has not yet been a comprehensive
theory of professional speech advanced in the courts and the legal literature.
Understanding the nature of the professions as knowledge communities allows us
to reconceptualize this type of speech. State regulation interacts with knowledge communities’
insights in multiple and varied ways. Sometimes it aligns with professional
insights; sometimes it contradicts them. If state regulation aims to interfere
with and alter professional knowledge, the First Amendment should protect the
client’s as well as the professional’s interest in accurate communication of
the knowledge community’s insights when a professional speaks.Introduction
I. situating
professional speech
A. What
Is Professional Speech?
1. The
Role of Knowledge Communities
2. Distinguishing
Private Speech
3. Distinguishing
Government Speech
B. Professional
Speech in First Amendment Doctrine
C. The Commercial
Speech Analogy
II. theorizing
professional speech
A. Autonomy
Interests
1. Decisional
Autonomy Interests
2. Professional
Autonomy Interests
B. Marketplace
Interests
C. Democratic
Self-Government Interests
III. limiting professional speech
A. Regulation
of the Professions
B. Tort
Liability
1. Professional
Malpractice
2. Informed
Consent
IV. when professions speak
A. Deference to the
Professional Standard
B. Codification of the
Professional Standard
C. Compelled Speech
Contradicting the Professional Standard
Conclusion
Following Daniel Halberstam and Robert Post, I will refer to “professional speech” as speech “uttered in the course of professional practice” as distinct from “speech . . . uttered by a professional.” Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. Pa. L. Rev. 771, 843 (1999); Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 947 [hereinafter Post, Informed Consent to Abortion].
See Pickup v. Brown (Pickup I), 728 F.3d 1042 (9th Cir. 2013) (upholding the California law prohibiting licensed mental health providers from providing SOCE therapy to children under eighteen against a First Amendment challenge), aff’d, remanded, and reh’g denied, 740 F.3d 1208 (9th Cir. 2014), cert. denied, 134 S. Ct. 2871 (2014); King v. Christie (King I), 981 F. Supp. 2d 296 (D.N.J. 2013) (upholding the New Jersey conversion therapy ban), aff’d sub nom., King v. Governor of N.J. (King II), 767 F.3d 216 (3d Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015); see also Doe v. Christie, 33 F. Supp. 3d 518 (D.N.J. 2014) (same).
See Halberstam, supra note 1, at 772 (“[W]e still have . . . no paradigm for the First Amendment rights of attorneys, physicians, or financial advisers when they communicate with their clients.”); id. at 834-35 (“[T]he Supreme Court and lower courts have rarely addressed the First Amendment contours of a professional’s freedom to speak to a client. Accordingly, courts have failed to develop a general method for reviewing restrictions on professional speech.”); Post, Informed Consent to Abortion, supra note 1, at 947 (explicitly abstaining from offering a comprehensive theory of the “constitutional status of professional speech”); Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation Altering Utterances,” and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1342-43 (2005) (“[C]ourts need to develop First Amendment standards to judge the constitutionality of laws that restrict professionals’ speech to clients.”).
See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (lawyer direct mailing to victims); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) (lawyer in-person solicitation); Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (newspaper advertisements for legal services); Bigelow v. Virginia, 421 U.S. 809 (1975) (advertising for abortion services).
Paul Horwitz, First Amendment Institutions 247-54 (2012) (discussing professional speech within “the borderlands of institutionalism”). Halberstam appears to make a similar proposal when he speaks about “First Amendment protection of relational speech institutions,” Halberstam, supra note 1, at 851, although he does not consider professional associations but rather the bounded nature of the professional-client relationship as the basis for identifying the institutionalized nature of the speech. My approach is perhaps best characterized as situated between these two. See infra Section I.A.1. Moreover, I do not necessarily subscribe to all First Amendment institutionalist implications. I do not aim to give an institutional account across the First Amendment; nor do I confine the institutionalization to the professional-client relationship.
See, e.g., Halberstam, supra note 1, at 838; Post, Informed Consent to Abortion, supra note 1, at 974-90. But see Paula Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L. Rev. 201, 239 (1994) (asserting that “conversations between doctors and patients about diagnosis and treatments are not commercial speech” but providing no analysis explaining why that is the case).
Schauer, Institutional First Amendment, supra note 15, at 1263 (“[I]t seems a permissible generalization to conclude that First Amendment doctrine has been hesitant to draw lines between or among speakers or between or among communicative institutions, preferring overwhelmingly to demarcate the First Amendment along lines representing different types of speech.”).
Some have argued that lawyers’ professional speech deserves special protection because of the role lawyers play in society. See, e.g., Renee Newman Knake, Attorney Advice and the First Amendment, 68 Wash. & Lee L. Rev. 639, 712 (2011) (“Given the integral role of attorneys in America’s democratic government, it seems reasonable, if not imperative, that this category of speech—attorney advice—should be fiercely guarded from unnecessary regulation.”); Margaret Tarkington, A First Amendment Theory for Protecting Attorney Speech, 45 U.C. Davis L. Rev. 27, 36 (2011) (“[A]ttorney free speech is essential to the proper functioning of the United States justice system.”). But see W. Bradley Wendel, Free Speech for Lawyers, 28 Hastings Const. L.Q. 305, 313 (2001) (“[N]o single model of lawyering theory can account for the function of lawyers in our society.”).
See generally Berg, supra note 16, at 206 (discussing the Rehnquist Court’s regulation of physician speech and developing “a First Amendment theory of doctor-patient discourse that appreciates and protects patients’ interests in receiving complete, unbiased medical information and advice”); Post, Informed Consent to Abortion, supra note 1 (analyzing “the First Amendment principles that should apply to compelled physician speech”).
See, e.g., Caroline Mala Corbin, Abortion Distortions, 71 Wash. & Lee L. Rev. 1175 (2014); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 Colum. L. Rev. 1724, 1764 (1995) (asserting that “the Court has been less willing to extend First Amendment protection to speech related to [abortion]”); Wells, supra, at 1759-60 (“[Abortion] is an activity that many people find abhorrent and corrupt. . . . Supreme Court Justices are not immune from such personal views. As a portion of the Court has indicated, ‘Some of us as individuals find abortion offensive to our most basic principles of morality.’” (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992))). See generally Vincent Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449 (1985). Vincent Blasi observes that some periods of time are more “pathological” than others, and in these pathological time periods, there exist “certain dynamics that radically increase the likelihood that people who hold unorthodox views will be punished for what they say or believe.” Blasi, supra, at 450. Blasi’s central thesis is that “[t]he first amendment . . . should be targeted for the worst of times” to assure that speech is protected. Blasi, supra.
See, e.g., Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6, 7 (1976) (“At one time the learned professions were those of theology, law, and medicine.”); Maxwell J. Mehlman, Professional Power and the Standard of Care in Medicine, 44 Ariz. St. L.J. 1165, 1225 (2012) (“Medicine is one of the three classic learned professions, the other two being law and the clergy.”).
The historical development is evident in this 1964 enumeration from the sociology literature:
Established solidly since the late Middle Ages have been law, the clergy, university teaching (although the church did dominate universities, medieval faculty were by no means all clergy), and to some extent medicine (especially in Italy). During the Renaissance and after, the military provided professional careers . . . . Dentistry, architecture, and some areas of engineering (e.g., civil engineering) were professionalized by the early 1900’s; certified public accounting and several scientific and engineering fields came along more recently. Some are still in process—social work, correctional work, veterinary medicine, perhaps city planning and various managerial jobs for nonprofit organizations—school superintendents, foundation executives, administrators of social agencies and hospitals. There are many borderline cases, such as schoolteaching, librarianship, nursing, pharmacy, optometry. Finally, many occupations will assert claims to professional status and find that the claims are honored by no one but themselves. I am inclined to place here occupations in which a market orientation is overwhelming—public relations, advertising, and funeral directing.
Harold L. Wilensky, The Professionalization of Everyone?, 70 Am. J. Soc. 137, 141-42 (1964).
Aside from the protection of religious speech otherwise afforded by the Free Exercise Clause of the First Amendment, it seems problematic to fit the clergy into the knowledge community concept, particularly across denominations. Exclusive claims to ultimate truth will be difficult to reconcile with a knowledge community’s underlying shared notions of validity and a common way of knowing and reasoning.
See Richard A. Posner, Professionalisms, 40 Ariz. L. Rev. 1, 1 (1998) (“The terms ‘profession’ and ‘professionalism’ have an incredibly large and vaguely bounded range of meanings, the despair of sociology, the discipline that has done most to study the professions.”); see also, e.g., Horwitz, supra note 13, at 247 (offering James Brundage’s definition of a profession as “a line of work that . . . claims to promote the interests of the whole community as well as the individual worker, that requires mastery of a substantial body of esoteric knowledge, and that is closely bounded by a body of ethical rules different from and more demanding than those incumbent on all respectable members of society”); Norman Bowie, The Law: From a Profession to a Business, 41 Vand. L. Rev. 741, 743 (1988) (providing Abraham Flexner’s “classic definition of a profession” that “an occupation must: (1) possess and draw upon a store of knowledge that was more than ordinarily complex; (2) secure a theoretical grasp of the phenomena with which it dealt; (3) apply its theoretical and complex knowledge to the practical solution of human and social problems; (4) strive to add to and improve its stock of knowledge; (5) pass on what it knew to novice generations not in a haphazard fashion but deliberately and formally; (6) establish criteria of admission, legitimate practice, and proper conduct; and (7) be imbued with an altruistic spirit” (citing Abraham Flexner, Is Social Work a Profession?)); Wilensky, supra note 32, at 138 (“The job of the professional is technical—based on systematic knowledge or doctrine acquired only through long prescribed training . . . . The professional man adheres to a set of professional norms.”).
For examples from the sociology literature on professions, see, for example, Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (1988); Eliot Freidson, Professionalism Reborn: Theory, Prophecy, and Policy (1994); Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (1977); and Keith M. MacDonald, The Sociology of Professions (1995). For historical perspectives, see James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008); and Elliott A. Krause, Death of the Guilds: Professions, States, and the Advance of Capitalism, 1930 to the Present (1996). In the legal literature, see Sande L. Buhai, Profession: A Definition, 40 Fordham Urb. L.J. 241 (2012).
Cf. Bowie, supra note 35, at 743 (“Flexner’s first four criteria for a profession require the mastery of a complex body of knowledge.”). It might be debatable whether the possession of actual knowledge is in fact necessary. Discussing “professional mystique,” Richard Posner—citing the lack of real therapeutic knowledge in medicine “in the Middle Ages in Italy, where medicine was a highly prestigious profession”—suggests that “[t]he key to classifying an occupation as a profession . . . is not the actual possession of specialized, socially valuable knowledge; it is the belief that some group has such knowledge . . . .” Posner, supra note 35, at 2. But “[t]he fact that a profession cultivates professional mystique does not prove that it lacks real knowledge; modern medicine is a case in point.” Posner, supra, at 4; see also Peter M. Haas, Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 35 (1992) (identifying the professions as a knowledge-based group).
See Bowie, supra note 35, at 743-44 (“Walter Metzger, addressing the question ‘What Is A Profession?,’ argued that ‘the paramount function of professions . . . is to ease the problems caused by the relentless growth of knowledge.’ . . . In a complex world, people become increasingly ignorant of information necessary to run their lives. The job of the professional is to protect the client from his or her own ignorance.”); see also King v. Governor of N.J. (King II), 767 F.3d 216, 232 (3d Cir. 2014) (“Licensed professionals, through their education and training, have access to a corpus of specialized knowledge that their clients usually do not. Indeed, the value of the professional’s services stems largely from her ability to apply this specialized knowledge to a client’s individual circumstances.”); Steven Brint, Professionals and the “Knowledge Economy”: Rethinking the Theory of Postindustrial Society, 49 Current Soc. 101, 116 (2001) (including in the discussion of “knowledge-centered” industries those “industries in which the primary activity is providing service to clients and the knowledge necessary for providing the service is embedded in the providers themselves (as in the medical, education and legal services industries)”).
Halberstam, supra note 1, at 772; see also Brint, supra note 37, at 130 n.9 (discussing sociology literature indicating that “many professionals . . . do not use much expert knowledge on their jobs. Studies of two leading professions, doctors and lawyers, show that rank-and-file practitioners frequently rely on standard reference works and accumulated experience as a basis for many of their decisions.” (citing Daniel B. Hogan, The Regulation of Psychotherapists (1979) and Donald Schon, The Reflective Practitioner: How Professionals Think in Action (1983))). Brint’s observation would suggest a very close connection of the individual professional to the knowledge community in day-to-day operations.
My definition of “knowledge community” builds on various definitions of that concept offered in the management and social science literature and draws on related concepts, such as “epistemic communities” or “epistemic institutions.” See, e.g., Ash Amin & Joanne Roberts, Knowing in Action: Beyond Communities of Practice, 37 Res. Pol. 353, 359-61 (2008) (discussing “professional knowing”); Mai’a K. Davis Cross, Rethinking Epistemic Communities Twenty Years Later, 39 Rev. Int’l Stud. 137, 149-51 (2013) (distinguishing epistemic communities and professions); Michael Earl, Knowledge Management Strategies: Toward a Taxonomy, 18 J. Mgmt. Info. Sys. 215, 223-25 (2001) (discussing knowledge communities in the oil industry); Haas, supra note 36, at 3 & n.4 (defining epistemic communities and their interrelatedness with professions).
Schauer, Institutional First Amendment, supra note 15, at 1274-75. Frederick Schauer also includes “scientific research that does not have a home within a university” as an analog. Id. According to Schauer, “For all of these institutions, the argument would be that the virtues of special autonomy—special immunity from regulation—would in large part serve important purposes of inquiry and knowledge acquisition, and that those purposes are not only socially valuable, but also have their natural (or at least most comfortable) home within the boundaries of the First Amendment.” Id.
Paul Horwitz also includes churches and associations in his discussion. See Horwitz, supra note 13, at 107-238.
While outside of the professional-client relationship, and therefore outside of the immediate scope of this discussion, the speech interests of professionals speaking to each other are similar to those underlying academic speech. See generally Robert C. Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State 61-93 (2012) [hereinafter Post, Democracy].
See Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991, 1000-02; Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 280-318 (1992).
This mechanism is analogous to that described in epistemic communities: “In response to new information generated in their domain of expertise, epistemic community members may still engage in internal and often intense debates leading to a refinement of their ideas and the generation of a new consensus about the knowledge base.” Haas, supra note 36, at 18.
See Halberstam, supra note 1, at 773 (“The State may ensure professionals’ faithfulness to the public aspects of their calling, but it may not usurp their role or determine independently the bodies of knowledge that may be accessed or the individual judgments that may be rendered in a given case.”).
Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119, 136 (1989) (“There is also wide agreement that advancement in understanding among persons capable of assessing scientific claims is promoted by freedom of communication within the scientific community, that government intervention to suppress some scientific ideas in favor of others would not promote scientific truth.”).
This distinction is sometimes obscured or disregarded in the case law and literature. See, e.g., Wollschlaeger v. Governor of Fla. (Wollschlaeger I), 760 F.3d 1195, 1218 (11th Cir. 2014) (denying First Amendment protection “when the professional speaks privately, in the course of exercising his or her professional judgment, to a person receiving the professional’s services”), vacated and superseded on reh’g, 797 F.3d 859 (11th Cir. 2015), vacated and superseded on reh’g, No. 12-14009, 2015 WL 8639875 (11th Cir. Dec. 14, 2015); Pickup v. Brown (Pickup II), 740 F.3d 1208, 1227 (9th Cir. 2014) (placing professional speech on a continuum and asserting that “where a professional is engaged in a public dialogue, First Amendment protection is at its greatest”), cert. denied, 134 S. Ct. 2871 (2014); Jennifer M. Keighley, Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech, 34 Cardozo L. Rev. 2347, 2351-52 (2013) (discussing “physician speech” as a form of private speech of the physician: “[A]lthough physicians’ speech to patients during the course of medical practice, what I will refer to as ‘physician speech,’ may be regulated without offending the First Amendment, this does not mean that physicians lose their First Amendment rights as ordinary citizens against compelled ideological speech.” Thus, “compelled ideological speech . . . violates physicians’ First Amendment rights as ordinary citizens.” (emphasis added)).
See Halberstam, supra note 1, at 851 (“Publication of advice for indiscriminate distribution generally will defeat a conclusion that the advice was rendered within the professional-client relationship . . . .”); see also Pickup I, 728 F.3d at 1054 (“Thus, outside the doctor-patient relationship, doctors are constitutionally equivalent to soapbox orators and pamphleteers, and their speech receives robust protection under the First Amendment.”).
Catherine J. Lanctot, Does Legalzoom Have First Amendment Rights?: Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law, 20 Temp. Pol. & Civ. Rts. L. Rev. 255, 266-69 (2011) (discussing the litigation culminating in New York County Lawyers’ Ass’n v. Dacey); see also N.Y. Cty. Lawyers’ Ass’n v. Dacey, 234 N.E.2d 459, 459 (N.Y. 1967) (holding that publication of defendant’s book, How To Avoid Probate, did not constitute unauthorized practice of law because it gave “general advice on common problems” rather than “personal advice on a specific problem peculiar to a designated or readily identified person”).
See Keighley, supra note 61, at 2349 n.3 (“Of course, physicians retain the ordinary protections of the First Amendment when they speak in the public sphere, outside of the practice of medicine.”); cf. Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights, 67 Fordham L. Rev. 569, 569 (1998) (asserting that “lawyers are sometimes perceived as classic speakers in public discourse, free of state control and entitled to all the ordinary protections of speech and association available to other speakers”).
Post, Democracy, supra note 51, at 43 (“If an expert chooses to participate in public discourse by speaking about matters within her expertise, her speech will characteristically be classified as fully protected opinion.”); Post, Informed Consent to Abortion, supra note 1, at 949 (“When a physician speaks to the public, his opinions cannot be censored and suppressed, even if they are at odds with preponderant opinion within the medical establishment.”).
And professionals’ private opinions do not necessarily have to reflect the insights of the knowledge community. Cf. id. (“Biologists can with impunity write editorials in the New York Times that are such poor science that they would constitute grounds for denying tenure within a university. Members of the general public can rely on expert pronouncements within public discourse only at their peril. Such pronouncements are ultimately subject to political rather than legal accountability.”(footnote omitted)).
See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.) (“It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other.”); id. at 872 (“[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.” (alteration in original) (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 511 (1989)); id. at 916 (Stevens, J., concurring in part and dissenting in part) (“I agree with the joint opinion that the State may ‘“‘expres[s] a preference for normal childbirth[.]’”’” (first alteration in original) (quoting id. at 872)).
Moore-King v. County of Chesterfield, 708 F.3d 560, 568 (4th Cir. 2013) (citing Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J. concurring)). Relying on Moore-King as well as Wollschlaeger I, 760 F.3d 1195, and Pickup I, 728 F.3d 1042, the Third Circuit identified professional speech as “a recognized category of speech.” King II, 767 F.3d at 233.
Keighley, supra note 61, at 2367-69; Jacob M. Victor, Note, Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives, 123 Yale L.J. 1532, 1537, 1552-53 (2014) (calling professional speech “an ill-defined and controversial area of First Amendment doctrine”).
See, e.g., Horwitz, supra note 13, at 253 (asserting that “[t]he Court in Rust and Velazquez has the right idea about professional speech, but it lacks proper language with which to express it” (citing Rust v. Sullivan, 500 U.S. 173 (1991) and Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001))). But see Wells, supra note 30, at 1725 (asserting that the Court in Rust and Casey failed to consider abortion counseling as speech).
The Court did conflate professional speech and professional activities, as some commentators have pointed out. See Wells, supra note 30, at 1748-49. This conflation is exemplified by statements such as the following: “But we have here not the case of a general law singling out a disfavored group on the basis of speech content, but a case of the Government refusing to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Rust, 500 U.S. at 194-95 (emphasis added).
Id. Further, Justice Kennedy explained: “The Government has designed this program to use the legal profession . . . to accomplish its end . . . . The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of that concept.” Id. at 542-43.
Tarkington, supra note 25, at 67 (noting that the Court’s distinction between speech in coordination with a Foreign Terrorist Organization and independent speech “is distinctively and acutely problematic for attorney speech. The attorney’s essential role requires speaking in coordination with and on behalf of clients. Attorneys, when acting as attorneys, do not speak for themselves or independently”).
See, e.g., Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 5 (2000) [hereinafter Post, Commercial Speech] (contending that Central Hudson itself is indeterminate and therefore provides an insufficient constitutional basis for resolving questions of commercial speech protection).
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980) (“In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”).
The First Amendment was originally inapplicable to “purely commercial advertising.” See Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). The modern category of “commercial speech” was first identified in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
Id. at 828 (“On the one hand, the Court welcomes government regulation as partially constitutive of the communicative interaction, that is, as assuring that communications that are dependent on predefined communicative goals remain within the boundaries of that discourse. On the other hand, the Court rejects government prescriptions as unconstitutional when they infringe on the integrity of an established framework for discourse.”).
Halberstam concedes as much, for at least some situations, pointing out that while “it is the relationship that defines the discourse within which both speakers and listeners have rights under the First Amendment,” id. at 851, the “deeper relationship” between, for example, a physician and patient may “lead, at least in some cases, to protection beyond that afforded to commercial speech,” id. at 838. The structural view also seems problematic on its own terms in defining the boundedness of commercial speech itself. See id. at 852 (“With regard to the regulation of commercial speech, the question of what is considered part of the bounded discourse is more difficult to answer, because we cannot rely on the relatively clear consideration of whether the speaker is reasonably understood by the interlocutors as applying considered judgment to the listener’s particular circumstances for the benefit of the listener. To the contrary, most commercial speech today occurs in the impersonal realm of mass communication.”).
Post, Democracy, supra note 51, at 41; Post, Commercial Speech, supra note 136, at 4 (“Commercial speech . . . consists of communication about commercial matters that conveys information necessary for public decision making, but that does not itself form part of public discourse.”); Post, Informed Consent to Abortion, supra note 1, at 974-75.
Post, Informed Consent to Abortion, supra note 1, at 980 (“The analogy to commercial speech should not be pressed too far. Commercial speech has its own tormented doctrinal history, with far too many confusions and imprecisions. It would be disheartening to see these imported wholesale into the context of professional speech.” (footnote omitted)).
See id. at 2368-69 (distinguishing “Meiklejohnian and participatory perspectives”). According to Post, “the Meiklejohnian approach interprets the First Amendment primarily as a shield against the ‘mutilation of the thinking process of the community,’ whereas the participatory approach understands the First Amendment instead as safeguarding the ability of individual citizens to participate in the formation of public opinion.” Id. at 2368 (citation omitted).
See generally C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964 (1978) (describing individuals’ autonomy interests as a theoretical justification for unrestricted speech); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334 (1991) (arguing for the persuasion principle in freedom of expression).
Cf. Halberstam, supra note 1, at 838 (discussing the distinct interests at stake in the commercial and professional speech contexts); Knake, supra note 25, at 690 (recounting that payment may not be decisive in determining the interests at stake in professional speech contexts). This is true in commercial speech cases as well. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) (stating that “speech does not lose its First Amendment protection because money is spent to project it”).
Post, Democracy, supra note 51, at 47; see also, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972) (“The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision.”).
It is also arguably recognized—at least implicitly—as a matter of existing doctrine. “The Rust majority’s recognition, at least in principle, of the protected status of physician-patient communications, comports with the Court’s judgment elsewhere in the legal and medical contexts that professionals play a special role in assisting individuals in the exercise of personal autonomy in the vindication of basic rights.” Halberstam, supra note 1, at 775.
See, e.g., Keighley, supra note 61, at 2405. But see Halberstam, supra note 1, at 844 (“As in the case of commercial speech, the focus on the listener in professional speech would again be, strictly speaking, misplaced, because a professional’s interest in communicating to a client should be constitutionally relevant.”).
Keighley, supra note 61, at 2373 (“While physicians may have more limited autonomy interests when engaging in the practice of medicine, this does not mean that they surrender all of their ordinary First Amendment rights against compelled ideological speech. Physicians retain the core First Amendment right of ordinary citizens to refuse to be the mouthpiece for the state’s ideological advocacy.” (emphasis added)).
See supra notes 137-147 and accompanying text; cf. Halberstam, supra note 1, at 848 (“The First Amendment protects not the individual listener’s subjective desire for information, but the practice of the profession.”); id. at 867 (“The First Amendment protects the doctor-patient dialogue as an important forum for the exercise of individual autonomy through the communication of knowledge that is generally free from government control. At the same time, however, the First Amendment allows for state regulation of the physician’s statements in order to ensure the integrity of the communicative institution.”).
Cf. Post, Democracy, supra note 51, at xii (“Contemporary technical expertise is created by practices that demand both critical freedom to inquire and affirmative disciplinary virtues of methodological care . . . . The maintenance of these virtues quite contradicts the egalitarian tolerance that defines the marketplace of ideas paradigm of the First Amendment.”).
The issues addressed here are, however, discussed in the First Amendment literature concerned with scientific and academic speech. See, e.g., Greenawalt, supra note 57, at 136 (“There is also wide agreement that advancement in understanding among persons capable of assessing scientific claims is promoted by freedom of communication within the scientific community, that government intervention to suppress some scientific ideas in favor of others would not promote scientific truth.”); Post, Reconciling Theory and Doctrine, supra note 161, at 2365 (“The social practices necessary for a marketplace of ideas to serve a ‘truth-seeking function’ are perhaps most explicitly embodied in the culture of scholarship inculcated in universities and professional academic disciplines.”). Indeed, some suggest that the marketplace metaphor itself originally was influenced by Justice Holmes’s readings on “the method of science.” See Post, Reconciling Theory and Doctrine, supra note 161, at 2365 & n.43 (“It is likely that Holmes was exposed to [Charles S. Peirce, The Fixation of Belief, in Values in a Universe of Chance 91, 110-11 (Philip P. Wiener ed., 1958)] while he was a member of the Metaphysical Club.”).
Horwitz, supra note 13, at 248; see also Post, Democracy, supra note 51, at 8 (“We rely on expert ‘knowledge’ precisely because it has been vetted and reviewed by those whose judgment we have reason to trust. All living disciplines are institutional systems for the production of such ‘knowledge.’”).
See Thomas S. Kuhn, The Structure of Scientific Revolutions (1962). For similar observations from the legal academy, see Post, Democracy, supra note 51, at 8 (“Scholarship requires not only a commitment to vigorous debate and critical freedom, but also and equally a commitment to enforcing standards of judgment and critical rigor.”).
Cf. Post, Democracy, supra note 51, at 67 (“In contrast to the marketplace of ideas, therefore, academic freedom protects scholarly speech only when it complies with ‘professional norms.’”). In the context of professional liability, the tort regime accounts for the range of valid opinions with “multiple schools of thought” or “respectable minority” rules. See infra Section III.B.
Post, Reconciling Theory and Doctrine, supra note 161, at 2367 (discussing the Meiklejohnian theory and the participatory self-government theory). Post argues that the Meiklejohnian perspective has been “decisively reject[ed]” by proponents of participatory self-government. Id. at 2369. Nonetheless, as Post points out, there are certain contexts—such as federal regulation of the broadcast media—that build on the Meiklejohnian theory. There, the specific role of the “broadcast licensees as trustees for the speech of others” allowed an approach that Post deems “compatible with the participatory approach.” Id. at 2370.
There are other forms of regulation that may apply to the speech of professionals. Perhaps the most apparent, in the legal realm, are rules of procedure. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991) (“It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.”); see also Frederick Schauer, The Speech of Law and the Law of Speech, 49 Ark. L. Rev. 687 (1997); Sullivan, supra note 68, at 569 (“Rules of evidence and procedure, bans on revealing grand jury testimony, page limits in briefs, and sanctions for frivolous pleadings, to name a few, are examples of speech limitations widely accepted as functional necessities in the administration of justice . . . .”); Wendel, supra note 25, at 348, 381-82. Agreeing to the many restrictions on attorney speech is simply accepted and explained as “a condition of being admitted into the bar.” Tarkington, supra note 25, at 31. These restrictions limit a wide swath of what should be protected professional speech. Perhaps a better explanation is that these kinds of rules seem closely related to the types of time, place, and manner restrictions permissible in public discourse as well. But these limits on speech do not give rise to professional speech concerns in the strict sense. The speech so constrained does not communicate the knowledge community’s insights, within the professional-client relationship, for the purpose of providing professional advice. Hence they fall outside the scope of this discussion.
See, e.g., King I, 981 F. Supp. 2d at 319 (“[T]here is a more fundamental problem with [the argument that professional counseling is speech], because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.”).
See Model Rules of Prof’l Conduct pmbl. ¶¶ 10-11 (Am. Bar Ass’n 2013). See generally Brundage, supra note 35; Krause, supra note 35; William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar, 22 Pepp. L. Rev. 485 (1995); Jonathan Rose, The Legal Profession in Medieval England: A History of Regulation, 48 Syracuse L. Rev. 1 (1998).
See, e.g., Mehlman, supra note 31, at 1172-75 (describing efforts of the American Medical Association to lobby state legislatures regarding licensing laws in the mid-nineteenth century and its later involvement in setting licensing standards); David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 799 (1992).
Halberstam, supra note 1, at 834 (first quoting Dent v. West Virginia, 129 U.S. 114, 122 (1889); then quoting Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957)); see also King II, 767 F.3d at 229 (“The authority of the States to regulate the practice of certain professions is deeply rooted in our nation’s jurisprudence. Over 100 years ago, the Supreme Court deemed it ‘too well settled to require discussion’ that ‘the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.’” (quoting Watson v. Maryland, 218 U.S. 173, 176 (1910) and citing Dent v. West Virginia, 129 U.S. 114, 122 (1889))).
See Chemerinsky, supra note 120, at 572-76; Judith L. Maute, Scrutinizing Lawyer Advertising and Solicitation Rules under Commercial Speech and Antitrust Doctrine, 13 Hastings Const. L.Q. 487 (1986); Ronald D. Rotunda, Lawyer Advertising and the Philosophical Origins of the Commercial Speech Doctrine, 36 U. Rich. L. Rev. 91 (2002); Sullivan, supra note 68, at 574-80.
Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (holding that a ban on lawyer direct mailing to victims for thirty days after an accident or disaster was permissible); Peel v. Att’y Registration & Disciplinary Comm’n, 496 U.S. 91 (1990) (holding that a ban on advertising lawyer specialist certification was unconstitutional); Shapero v. Ky. Bar Ass’n, 486 U.S. 466 (1988) (holding that letters advertising specific legal issues were permissible); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (holding that a ban on print ads targeting victims was permissible); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) (holding that the regulation of lawyer in-person solicitation was permissible); Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (holding that the prohibition of newspaper ads for routine legal services was unconstitutional).
Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 138-39 (1994) (holding that a censure for using the truthful designations “CPA” and “CFP” was unconstitutional); Edenfield v. Fane, 507 U.S. 761, 763 (1993) (holding that a ban on in-person solicitation by the CPA was unconstitutional).
See Sullivan, supra note 68, at 580-84 (noting the disparate treatment of lawyer advertising—where “the Court gives greater deference to state interests” in upholding regulations—from that of other professionals). Sullivan criticizes this distinction between lawyers and other professionals, finding it “hardly clear that broad assumptions about public regard for the legal profession—especially if only weakly empirically demonstrated—ought to provide the basis for limiting lawyer promotional practices that cannot be shown to cause clients demonstrable material harm.” Id. at 588. Instead, she concludes, “[t]he question . . . is whether lawyer-specific speech regulations are really needed . . . or whether problems of fraud, misrepresentation, and overreaching may be adequately controlled by generally applicable background consumer protection laws . . . .” Id.
Gellhorn, supra note 31, at 21 n.53. Gellhorn further points out that not until 1976 did the ABA permit “a lawyer . . . to indicate ‘in dignified form’ in professional announcements and in the yellow pages of telephone directories his preferred areas of practice and his educational background.” Id. at 21. See also Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702, 712-16 (1977) (discussing the ABA House of Delegates 1976 amendment permitting this type of advertising). Morgan noted in response to the 1976 amendment to the ABA rules on lawyer advertising that the changes “make information more accessible than before, but they perpetuate many barriers to information—barriers which are of no benefit to anyone but attorneys.” Id. at 716.
See id.; Storied Law Professor George Anastaplo Dies, Hyde Park Herald (Feb. 19, 2014), http://hpherald.com/2014/02/19/storied-law-professor-george-anastaplo-dies [http://perma.cc/X2YT-MJ8F].
Wells, supra note 30, at 1739 n.83; see also Post, Informed Consent to Abortion, supra note 1, at 961 (“Professional medical speech is continuously regulated without seeming to run afoul of First Amendment constraints. Doctors are sanctioned for engaging in certain communicative acts and they are compelled to engage in others.”).
Cf. Post, Reconciling Theory and Doctrine, supra note 161, at 2364 (“[C]ontent-based regulation of speech is routinely enforced without special constitutional scrutiny, as for example when lawyers or doctors are held liable in professional malpractice for the communication of irresponsible opinions.”); Volokh, supra note 5, at 1347 (“Some speech . . . is indeed unprotected, for reasons related to why criminal law or tort law seeks to punish it.”).
Id. at 1243 (“Rules that the profession is authorized to make need to utilize medical knowledge to diagnose and cure patients. Those rules consequently must be based on medical reasons. Courts scrutinize those reasons for minimal plausibility to make sure that the profession’s rules are not blatantly unsafe to patients. Furthermore, the profession has no exclusive authority to base its rules of patient treatment upon reasons extraneous to medicine. Correspondingly, courts fully scrutinize the profession’s non-medical reasons and decisions.”).
See, e.g., id. at 1210 (asserting that in the medical malpractice context, “the locality benchmark does not significantly differ from the uniform benchmark”); Mehlman, supra note 31, at 1180-81 (discussing the emergence of the locality rule in medical malpractice and tracing its origin to the case Hathorn v. Raymond, 48 Vt. 557 (1876)).
Id. at 1240-41 (“Courts and legislators do not know medicine and are consequently not competent to devise rules for medical diagnoses and treatments. . . . [Instead, they delegate] the rulemaking power to an institutionally competent rulemaker—the medical profession. . . . All jurisdictions across the United States require care providers to treat patients in accordance with the rules, protocols, and practices that have been devised by the medical profession.”).
Kathy Seward Northern, Procreative Torts: Enhancing the Common-Law Protection for Reproductive Autonomy, 1998 U. Ill. L. Rev. 489, 509-10 (1998); Sonia M. Suter, The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making, 39 Am. J.L. & Med. 7, 12 (2013) (“Historically, physicians disclosed medical information only to persuade patients to do what physicians thought was best for them or to try to offer hope and comfort. Indeed, deception in certain cases was not only acceptable, but sometimes considered necessary, to achieve those goals.”).
See Northern, supra note 251, at 510-11. Some also argue that the law overemphasizes patient autonomy. See Suter, supra note 251, at 16 (summarizing Schneider and Ben-Shahar’s objections); see also Stein, supra note 22, at 1227 (“Consider doctors’ provision of medical information to their patients. When a doctor keeps her patient uninformed about the available treatment options and the chosen treatment, she may—and often will—achieve a medically outstanding result: she may actually cure the patient completely. Whether the doctor achieves this result depends on what she knows, not on what the patient knows. The doctor’s failure to properly inform the patient about the treatment consequently damages the patient’s autonomy, but not her anatomy.”).
Northern, supra note 251, at 511; see also Natanson v. Kline, 350 P.2d 1093, 1104 (Kan. 1960) (“Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.”).
See Strickland v. Washington, 466 U.S. 668, 688 (1984) (“[The Sixth Amendment] relies . . . on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (citation omitted)).
See Waters v. Churchill, 511 U.S. 661, 669 (1994) (plurality opinion) (“[I]t is important to ensure not only that the substantive First Amendment standards are sound, but also that they are applied through reliable procedures. This is why we have often held some procedures—a particular allocation of the burden of proof, a particular quantum of proof, a particular type of appellate review, and so on—to be constitutionally required in proceedings that may penalize protected speech.”); id. at 686 (Scalia, J., concurring in the judgment) (“I do not doubt that the First Amendment contains within it some procedural prescriptions . . . .”).
David S. Joachim, Supreme Court Declines Case Contesting Ban on Gay “Conversion Therapy,” N.Y. Times (June 30, 2014), http://www.nytimes.com/2014/07/01/us/supreme-court-declines-case-contesting-ban-on-gay-conversion-therapy.html [http://perma.cc/7CJQ-MJTV].
The District of Columbia, Illinois, and Oregon have since banned conversion therapy on minors. See Aditya Agrawal, Illinois Bans Conversion Therapy for Minors, Time (Aug. 21, 2015), http://time.com/4006675/illinois-bans-gay-conversion-therapy-on-minors [http://perma.cc/L937-7656]; Aaron C. Davis, D.C. Bans Gay Conversion Therapy of Minors, Wash. Post (Dec. 2, 2014), http://www.washingtonpost.com/local/dc-politics/dc-bans-gay-conversion-therapy/2014/12/02/58e6aae4-7a67-11e4-84d4-7c896b90abdc_story.html [http://perma.cc/BLJ4-CBEF]; Katy Steinmetz, Oregon Becomes Third State To Ban Conversion Therapy on Minors, Time (May 19, 2015), http://time.com/3889687/oregon-conversion-therapy-ban [http://perma.cc/YS8R-KCQ2]. States that actively considered legislative efforts to ban conversion therapy in 2015 are Arizona, Colorado, Connecticut, Florida, Iowa, Massachusetts, Minnesota, Nevada, New York, Ohio, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, and West Virginia. See #BornPerfect: Laws & Legislation by State, Nat’l Ctr. for Lesbian Rights (2015), http://www.nclrights.org/bornperfect-laws-legislation-by-state [http://perma.cc/CTJ3-JFXM] (providing an overview of state legislative activity regarding conversion therapy).
Volokh, supra note 5, at 1346 (“Such regulation may be valid because of the harm that negligent speech can cause, the potential value of the mandated speech to the patient or to third parties, or the risk that the speech may exploit the patient’s psychological dependency on the speaker—but not because the regulated speech is somehow conduct.”).
For alternative approaches to SOCE regulation, see, for example, Shawn L. Fultz, Comment, If It Quacks Like a Duck: Reviewing Health Care Providers’ Speech Restrictions Under the First Prong of Central Hudson, 63 Am. U. L. Rev. 567 (2013); and Victor, supra note 84, at 1562-81. See also Clifford J. Rosky, No Promo Hetero: Children’s Right To Be Queer, 35 Cardozo L. Rev. 425 (2013); Elizabeth Bookwalter, Comment, Getting It Straight: A First Amendment Analysis of California’s Ban on Sexual Orientation Change Efforts and Its Potential Effects on Abortion Regulations, 22 J. Gender Soc. Pol’y & L. 451 (2014) (discussing Pickup I); William Travis, Case Note, Bad Medicine: The Ninth Circuit Reviews Issues of Free Speech, Professional Regulations, and California’s Ban on Sexual Orientation Change Efforts in Pickup v. Brown, 23 Tul. J.L. & Sexuality 191 (2014).
An Act To Add Article 15 (Commencing with Section 865) to Chapter 1 of Division 2 of the Business and Professions Code, Relating to Healing Arts, 2012 Cal. Stat. 6569 (codified at Cal. Bus. & Prof. Code §§ 865-865.2 (West 2015)); An Act Concerning the Protection of Minors from Attempts To Change Sexual Orientation and Supplementing Title 45 of the Revised Statutes, 2013 N.J. Laws 1206 (codified at N.J. Stat. Ann. §§ 45:1-54, 45:1-55 (West 2015)).
See generally Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact-Finding, 84 Ind. L.J. 1 (2009) (discussing the judicial treatment of legislative fact-finding and proposing a new paradigm for judicial review of social facts); Daniel A. Crane, Enacted Legislative Findings and the Deference Problem, 102 Geo. L.J. 637 (2014) (discussing judicial deference to enacted and unenacted legislative fact-finding).
Victor, supra note 84, at 1539 (“This broad definition of SOCE is generally in keeping with the approach of organizations like the American Psychological Association (APA), which has treated SOCE as a cohesive category that encompasses any attempt by a mental health professional to change sexual orientation.”).
See Victor, supra note 84, at 1572 (“The proponents of SB 1172 [2012 Cal. Stat. 6569] originally favored more comprehensive legislation, which would have mandated that practitioners receive a non-minor patient’s ‘informed consent’ before commencing SOCE treatments, but later withdrew these proposals.”).
See Post, Informed Consent to Abortion, supra note 1, at 978-79 (“If First Amendment concerns arise whenever the state proscribes physician speech in ways that prevent physician-patient relationships from serving as a source of accurate, reliable, professional knowledge, constitutional questions should also arise if the state corrupts physician speech by requiring doctors to transmit misleading information in the context of informed consent.”).
Recent Case, First Amendment—Compelled Speech—Eighth Circuit Applies Planned Parenthood of Southeastern Pennsylvania v. Casey to South Dakota “Suicide Advisory”—Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc), 126 Harv. L. Rev. 1438, 1438 (2013).
Compare Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding mandatory sonogram requirement), with Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014) (holding mandatory ultrasound law violates First Amendment), aff’d sub nom. Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014), cert. denied sub nom. Walker-McGill v. Stuart, 135 S. Ct. 2838 (2015).
See, e.g., Stuart, 774 F.3d at 242 (“This compelled speech . . . is ideological in intent and in kind.”); Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351, 377 (2008) (“[M]andatory ultrasound is . . . meant to persuade women against abortion.”).
319 U.S. 624 (1943) (holding mandatory flag salute unconstitutional as compelled speech); see Stuart, 774 F.3d at 255 (citing Wooley and Barnette); see also Caroline Mala Corbin, Compelled Disclosures, 65 Ala. L. Rev. 1277 (2014) (discussing mandatory ultrasounds in light of compelled speech doctrine).
Editorial, Repeal Prohibition, Again, N.Y. Times (July 27, 2014), http://www.nytimes.com/interactive/2014/07/27/opinion/sunday/high-time-marijuana-legalization.html [http://perma.cc/8P8D-Q8WZ] (“There is honest debate among scientists about the health effects of marijuana . . . .”).
David Firestone, Let States Decide on Marijuana, N.Y. Times (July 26, 2014), http://www.nytimes.com/2014/07/27/opinion/sunday/high-time-let-states-decide-on-marijuana.html [http://perma.cc/HM2F-6VQF] (“No medical use? That would come as news to the millions of people who have found that marijuana helped them through the pain of AIDS, or the nausea and vomiting of chemotherapy, or the seizures of epilepsy.”).
Wollschlaeger I, 760 F.3d 1195; see also Paul Sherman & Robert McNamara, Editorial, Censorship in Your Doctor’s Office, N.Y. Times (Aug. 1, 2014), http://www.nytimes.com/2014/08/02/opinion/censorship-in-your-doctors-office.html [http://perma.cc/D3GF-LSPU].