In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.
Hines v. Alldredge
In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.
The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.
Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?
Speech or Conduct?
The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.
The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.
The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.
The next step is to determine the appropriate standard of review. Courts again disagree on the standard.
In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.
On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:
We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.
In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.
The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:
At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.
The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.
Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.