But speaking professionally has become something of a battleground of late as state legislatures are attempting to tell professionals what they may and may not say.
Does the First Amendment protect professional speech? Should it? And what about regulating the professions; surely, we don’t want to do away with licensing requirements or professional malpractice liability? We wouldn’t want to protect quackery as a matter of free speech, would we? Recently, these questions came to the forefront of legal and political debate in two sets of court decisions, involving legislation on two hot-button topics: gays and guns.
A California law prohibits mental health providers from engaging in “sexual orientation change efforts,” or, less euphemistically, conversion therapy, for minors. The Federal Court of Appeals for the Ninth Circuit upheld that law against a constitutional challenge, and in July the Supreme Court refused to take up the case. So the California law can now go into effect. Similar legislation in New Jersey is being challenged in federal court there. Last year, a federal district court upheld the law, and the appeal is now before the Third Circuit. Other states are likely to follow California’s lead: The NCLR #BornPerfect campaign lists seven states and the District of Columbia as actively considering conversion therapy legislation.
The other case that made the national news and invited impassioned commentary involves a Florida law that prohibits doctors from inquiring about firearm ownership as a matter of course. The Federal Court of Appeals for the Eleventh Circuit upheld that law as “a legitimate regulation of professional conduct.” Doctors may want to give parents advice about childproofing a home, for example. But doctors may not ask about guns in some instances, even if they might think it’s relevant, if the state says it’s not. (Though the court notes that “if good medical care clearly requires inquiry — for example, in case of a suicidal patient — the physician will know that inquiry is relevant and thus not barred.”) As the dissent points out, doctors and the state have “different definitions of ‘relevant.'”
So how should we think about these instances in which the state tries to determine what professionals may say to their clients, or where state legislatures determine what is relevant or irrelevant information? Surprisingly, there is no generally accepted theory of professional speech, and leading scholars are hotly debating the issue.
They raise a number of very important points. Robert Post, the dean of the Yale Law School, argues that doctors are subject to medical malpractice liability for bad advice, and the First Amendment provides no defense. So doctors’ rights are limited in that regard. Professor Laurence Tribe of Harvard Law School notes that the First Amendment should apply when the state tries to silence politically unpopular views. And Professor Vikram Amar of UC Davis reminds us that the professions have always been subject to licensing.
But something crucial is missing from the debate: a deeper appreciation of the historically self-regulating nature of the professions on questions of substance, and the role of individual professionals in relation to these professional communities. To get a better conceptual handle on professional speech, I suggest that we should think about the professions as knowledge communities, that is, communities whose primary reason for existence is the generation and dissemination of knowledge. The individual professional is the conduit to pass on this knowledge to the client.
What the California conversion therapy law and the Florida gun law have in common is that the state tells professionals what they can say. But there is a fundamental difference: In the California case, the legislature codified the professional standard by relying on findings of professional groups, such as the American Psychological Association and others. In the Florida case, by contrast, the state legislature did exactly the opposite. While the American Medical Association and other professional groups have determined that asking about guns is relevant as a professional matter, the state legislature substituted its own judgment. But when we think about the professions as knowledge communities, we ought to be highly skeptical of state interference with professional insights.
Licensing schemes and the imposition of certain educational requirements remain as important as ever. Determining what it takes to be a professional does not involve the state in deciding what the professional is allowed to say. Protecting professional speech also doesn’t mean we have to do away with professional malpractice liability: the benchmark for sanctioning “unprofessional” speech is exactly the same body of knowledge that the First Amendment should protect. And the First Amendment, accordingly, does not protect “unprofessional” speech. As long as the professional gives the client good advice, as a matter of what is defensible professional knowledge, the client gets exactly what she needs. And it’s not for the state to decide what is relevant or irrelevant, accurate or inaccurate. The First Amendment should protect the professional’s and the client’s interests in relevant and accurate communication of the knowledge community’s insights when a professional speaks.