So: we know that the First Amendment largely proscribes content-based speech regulation. Outside of a handful of specific categories, and absent surviving strict scrutiny review, the government cannot regulate the content of speech.
We also know that regulation of one of these categories of speech – commercial speech – is subject to a lesser standard of review: intermediate scrutiny.
However, we ALSO know that the commercial speech doctrine is inherently limited. It only applies to what I’ll call “business development” speech. 1 The commercial speech doctrine does not apply to ALL speech in a commercial context, or – importantly and under-recognized – any-and-all speech by “commercial” speakers.
In fact, much of the work of professionals involves non-commercial speech. While this is particularly true of lawyers – the practice being inextricably tied up in expression – it is also true of the practice of medicine and numerous other regulated professions, including nutritionists, tour guides, and engineers. Talking and writing is a integral part of the work of many a profession.
The rise of social media has also multiplied the opportunities for professionals to express themselves, both publicly and directly to clients, in forms of communication both commercial and non-commercial.
So how do we account for regulation that directly impacts the non-commercial speech of professionals?
Broadly speaking, these regulations take two forms:
- They regulate WHO can speak.
- They regulate WHAT and HOW professionals speak.
For example, the practice of law: the rules of the profession (and most states’ criminal laws) limit who can speak about legal matters (i.e., for the most part only in-state, licensed lawyers). And the professional rules also regulate what licensed lawyers can say to their clients, opposing parties, opposing counsel, judges, and even the the public at large. 2
But . . . how can this be? These are content-based speech regulations. And outside of a handful of specific, categorical exceptions, content-based speech regulations almost NEVER survive constitutional scrutiny.
So how has this structure of professional speech regulation managed to stay in place?
Professional Speech Regulation
I’ll start at the ending: there actually isn’t a “professional speech doctrine.”
Despite its commonplace nature — there are millions of professionals in America subject to professional licensing rules that restrict their speech — and despite the Supreme Court’s fondness for First Amendment cases — there are nine SCOTUS decisions on the First Amendment implications of attorney advertising regulation alone — this is an area of content-based speech regulation that the Supreme Court hasn’t weighed in on.
But that may be changing.
Prior to 2018, the only tea leaves to be found are in a concurrence by Justice Byron White in the 1985 decision in Lowe v. SEC.
However, in the 2018 NIFLA v. Becerra decision- rejecting a California law targeting “crisis pregnancy centers” with mandatory disclaimer requirements – the Court for the first time addressed the possibility of a professional speech doctrine:
“But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” [citations omitted]. And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” United States v. Alvarez, 567 U. S. 709, 722 (2012) (plurality opinion).”
You see, the Ninth Circuit, in deciding the case in favor of California, had actually adopted a new test for professional speech regulation, holding that “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). The Ninth then went on to find that California’s law met this standard.
SCOTUS wasn’t having it:
“. . . In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny.”
So while the Court took a pass (for now) on adopting a professional speech doctrine, the decision for the first time expresses explicitly that regulation of core professional speech must meet some heightened threshold — and that heightened standard is at least intermediate scrutiny.
I’l close this section by noting that the word “core” above is doing a lot of work. We’ve long known that there are a number of ways that “non-core” professional speech can be regulated:
- As discussed at the outset, commercial speech by professionals is subject to intermediate scrutiny review.
- Licensing requirements, most routine disclosures, and “speech incidental to conduct” are all subject to rational basis review – the least exacting standard.
Read on for a deeper dive into each of these categories, as well as a look at the implications if strict scrutiny applies to regulation of “core” professional speech.
Speech Incidental to Conduct