Professional Speech

66 Pages Posted: 15 Oct 2014 Last revised: 21 Mar 2016

Claudia E. Haupt

Yale Law School; Yale University - Yale Information Society Project

Date Written: May 10, 2015

Abstract

Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical bases of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications, and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions should be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

Keywords: First Amendment, Free Speech, constitutional law, professional responsibility, torts, professional malpractice, informed consent

JEL Classification: K10, K13, K20, K30

Suggested Citation

Haupt, Claudia E., Professional Speech (May 10, 2015). Yale Law Journal, 125:1238, 2016; Columbia Public Law Research Paper No. 14-424. Available at SSRN: https://ssrn.com/abstract=2509458 or http://dx.doi.org/10.2139/ssrn.2509458

Yale University - Yale Information Society Project ( email )

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