One implication of the NIFLA decision is that professional speech regulation must survive at least intermediate scrutiny. But what if it must meet a higher bar?
In a recent law review article, Widener Law School Dean Rodney Smolla argues that professional speech should be protected to the same extent as core political speech. As such, regulation of professional speech would need to survive strict scrutiny.
Here’s the thing: it’s axiomatic among First Amendment lawyers that very few content-based speech regulations are able to meet the strict scrutiny threshold. It is a standard that is nearly always fatal.
But Smolla believes there is something in professional speech regulation that makes it uniquely robust when it comes to strict scrutiny review — the consumer-protection concerns that animate such laws:
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.
For a regulation to survive strict scrutiny, it must be targeted at a compelling government interest, it must be narrowly tailored to meet that interest, and it must be the least restrictive means of doing so. In Smolla’s view, this is easily done: protecting consumers from fraud and self-dealing by licensed professionals — particularly those in positions of expertise and authority, like doctors and lawyers — is certainly a compelling government interest, and what could be better tailored/less restrictive than having the professional licensing rules sanction such behavior?
OK, but what about those professional licensing rules that go beyond preventing such excesses, and get into areas relating to government-approved messages and ostensible concerns of service quality? As Smolla continues, strict scrutiny provides the answer:
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.
This seems . . . exactly right. For as Smolla points out, classic professional speech regulations – like prohibitions on breaching attorney-client privilege or defrauding patients – don’t point to a need for a relaxed regulatory standard: they are simply evidence that meaningful regulation can survive strict scrutiny. What’s more, this standard offers a construct for clearing out the excesses of less-meaningful occupational speech regulation.