Reject the “Professional Speech” Doctrine?

I’ve written quite a bit about the regulation of professional speech (most recently here), and how this area is curiously under-developed from a First Amendment perspective. The closest thing we’ve seen to the Supreme Court addressing professional speech regulation is the 1985 case of Lowe v. SEC, and that case – like most lower court cases dealing with professional speech – has far more to do with the government’s right to require licenses than it does with how the government can restrict the speech of licensees.[ref]Although the First Amendment implications of whether to require a license have also not been adequately addressed by the courts. While laws of general applicability – like a business license requirement – are fine, laws requiring a license before engaging in expressive activity may also run afoul of the First Amendment. The Bars may have some issues here, as the giving of legal advice – an expressive activity – is limited, on pain of criminal sanction, to those possessing licenses issued by the state.[/ref]

Meantime, we’ve had Supreme Court cases addressing the First Amendment implications of everything from “crush films” to violent video games to drug-promoting messages in the schoolyard. Hell, we’ve had NINE Supreme Court cases plunging the depths of the First Amendment constraints on attorney advertising regulation.

So why so little attention to the Constitutional dimension of regulating non-advertising professional speech? Especially when some 30% of the population now works in a profession requiring a license from the government?

There ARE cases, winding their way up the appellate ladder, that may cause SCOTUS to address the question within the next few terms. But I’ve just come across this recent law review article penned by Widener Law School Dean Rodney Smolla (First Amendment scholar and author of, among other things, the two-volume resource “Law of Lawyer Advertising“) that makes the case that there should be no “professional speech doctrine.”

Rather than subject professional speech regulation to “intermediate scrutiny” analysis (the approach taken by the 11th Circuit in the infamous “Docs v. Glocks” case), such speech should be protected to the same extent as core political speech, Smolla argues. Referring to the Paul Sherman article I wrote about here, Smolla makes the case persuasively that regulation of professional speech should be subject to strict scrutiny – the same standard applied to almost all other forms of content-based speech regulation. While this is the hardest test for regulation to pass, Smolla makes an interesting observation: that in all of the traditional consumer-protection contexts upon which occupational speech regulation is defended, the strict scrutiny test is actually easily met:

No special “professional speech” doctrine is needed, however, to protect the consumers of professional services from expression by professionals that is false, misleading, criminal, tortious, or palpably unethical in some traditional sense (such as speech
covering up a conflict of interest). Application of the strict scrutiny test will already allow for such regulation.

So what’s the basis for regulation beyond these areas? Smolla continues:

What is then left over is the very thin, conclusory, and paternalistic argument that consumers who receive advice from professionals, including advice that often implicates important matters of public discourse, need the heavy hand of the state to protect them from over-reaching and abuse.

The First Amendment, however, is grounded in exactly the reverse set of assumptions. The First Amendment presumes that people are their own best judge of what to say or not say, or listen to or not listen to. Clients do not have to listen to the advice they are receiving, or even continue the relationship.

Exactly right. For as Smolla points out, classic professional speech regulations – like prohibitions on breaching attorney-client privilege or requirements that doctors obtain informed consent – don’t point to a need for a relaxed regulatory standard: they are simply evidence that meaningful regulation can survive strict scrutiny. And perhaps this way of thinking can offer a path to clearing out the excesses of less-meaningful occupational speech regulation.