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Opinion Professional-client speech and the First Amendment

One of the big uncharted zones of First Amendment law (here there be monsters) is professional-client speech. Courts have generally assumed that some restrictions on such speech are permissible:

  1. The government can require you to get an expensive, time-consuming license before you give a client legal, medical, psychiatric or financial advice, though the First Amendment would bar any such requirement for journalists, authors, documentarians and the like.
  2. The court system can hold you liable for supposedly negligent predictions and recommendations, though newspapers and book publishers can’t be sued for supposedly negligent statements about what the stock market will do, about whether vaccines are dangerous, or about how you should arrange your legal affairs.
  3. The government can require professionals to give all sorts of disclaimers and other information to their clients, though that would be impermissible speech compulsion as to newspapers, books, blogs and the like. To quote the lead opinion in Planned Parenthood v. Casey (1992), which upheld a requirement that doctors give various materials to women who are considering abortion, “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”

But at the same time, courts have also mostly concluded that professional-client speech isn’t entirely lacking First Amendment protection. Recent lower court opinions have therefore held that content-based restrictions on professional-client speech are subject to some First Amendment scrutiny, but only so-called “intermediate scrutiny” rather than the very-hard-to-satisfy “strict scrutiny.” (See, for instance, the 11th Circuit decision upholding restrictions on doctor speech about guns; I disagree with its bottom-line result, but at least the court there did end up recognizing that the First Amendment was seriously implicated.) Likewise, Holder v. Humanitarian Law Project (2010) suggested that lawyer-client speech is not entirely free of First Amendment scrutiny — though there the court upheld the law, on the grounds that it was a very narrow restriction, and one that was narrowly tailored to a compelling government interest.

Hines v. Alldredge (5th Cir. 2015), on the other hand, basically held that such speech can be freely restricted. (The law there “require[d] veterinarians to conduct a physical examination of an animal or its premises before they can practice veterinary medicine with respect to that animal,” including when the practice of medicine was simply giving advice to the client about what the animal needs.) Lower courts dealing with laws restricting psychotherapy aimed at “straightening out” gay patients through speech have disagreed on which legal standard to apply.

The Supreme Court will shortly consider the petition for certiorari in that case, and might — for the first time — give lower courts some concrete guidance on the matter. Worth watching to see what the court does with it next week.