OK, so in my post on the Visaline case, I explored the bizarre idea that regulators can keep people from speaking on certain topics, just by requiring a license to talk about those things — and that the decision to require such a license-to-speak can be supported by little more than caprice.
Hopefully other courts will follow the Fifth Circuit and swiftly eliminate this glitch. For Visaline — with its blunt invocation of the Supreme Court’s 2018 decision in NIFLA v. Becerra — reinforces the notion that real limits exist on the ability of the state to regulate the speech of licensed professionals. And this is so important because a distressingly large number of lawyers and judges — who really should know better — seem to get First Amendment amnesia when it comes to this area.
NIFLA v. Becerra was the Supreme Court’s first-ever decision directly addressing the concept of professional speech regulation writ large. And in that decision, the Court summarized the state of play:
The Court has afforded less protection for professional speech in two circumstances— where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech” . . . and where States regulate professional conduct that incidentally involves speech. 1
The NIFLA opinion goes on to note that the Supreme Court has had several occasions to reinforce that the full protection of the First Amendment applies to most professional speech:
“The Court has applied strict scrutiny to content-based laws regulating the noncommercial speech of lawyers, professional fundraisers, and organizations providing specialized advice on international law. And it has stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Sorrell v. IMS Health Inc., 564 U.S. 552, 566.” (internal cites omitted)
And lest we forget, when professionals speak in a non-professional context — even when talking about their licensed profession — THAT speech is as fully First Amendment-protected as it would be if uttered by a non-licensed citizen.
There likely ARE other areas of professional speech where regulation can meet a lesser standard — or can simply clear the bar of strict scrutiny. There’s a lot more work for the courts to do before we arrive at an appropriately narrowed professional speech doctrine.
- In fairness, I think what the court is saying here is that these are the two situations where it has applied the lowest protection for professional speech; regulation in these areas need only meet the rational basis test. It has also applied lower protection — the intermediate scrutiny test — to regulation of all commercial speech other than basic disclosures. ↩