Intermediate Scrutiny for Professional Speech Regulation?

To what extent should the government be able to regulate what doctors and lawyers say? Sure, the focus of this blog is commercial speech, and that question is relatively settled (at least as far as the speech in question is straightforward advertising). But what about other forms of expression? How far can the state go in controlling what professionals say in that capacity, or when they are working with clients or patients?

It’s a messy issue, and one that is surprisingly bereft of easy answers or judicial guidance.

How messy? Well, Florida thinks it needs to protect the second amendment rights of its citizens by restricting how doctors can talk to patients about guns.  And California thinks it needs to use pregnancy-related clinics (including religious ones) to help advance the marketing of its state-funded family planning and pregnancy services, including abortion.

Where does the line get drawn? As I’ve argued before, I believe there are significant First Amendment problems with including “legal advice” within the legal monopoly. I also believe that getting a license to practice law should not deprive an attorney of full free speech rights – at least when those rights are exercised outside of a client’s matter.

But what about speech that’s engaged in within the attorney-client or doctor-patient relationship? While it seems clear that the government shouldn’t have free rein over what is clearly expressive activity, it also seems that the state’s interest in licensing – which is, broadly speaking, to protect the public – would dictate that it gets some leeway here.

But what should the standard be? It’s surprising that this issue hasn’t been more fully-fleshed out by the courts. Outside of speech at the core of professional licensure, 1 it’s a marshy swampland.

While we’re probably not going to get any answers until the Supreme Court directly addresses professional speech regulation, the Ninth Circuit did helpfully wade into the swamp in ruling on the California “abortion marketing” law described above. In its October 14, 2016 decision in NIFLA v. Harris, the Ninth Circuit found that regulation of “middle ground” professional speech – that is, speech that is less than a “public dialogue” yet more than the speech-as-conduct at the core of a professional’s practice – is subject to intermediate scrutiny review (the same as commercial speech).

That sounds right to me, 2 and it provides a good way of thinking about the extent of acceptable lawyer speech regulation in areas that don’t involve advertising or advocacy.

But again, this is an area that could really use an assist from the Supreme Court.

 

Notes:

  1. For example, psychological counseling or advocating for a client before a court, either of which would likely be considered by a court to be conduct rather than speech for the purposes of regulation. See, e.g., Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013).
  2. Although the Ninth Circuit really rushed through – in an unconvincing way – the intermediate scrutiny analysis to find that California could compel pregnancy clinics to market the state’s services.

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