Professional Rights Speech
73 Pages Posted: 29 Aug 2015 Last revised: 10 Aug 2017
Date Written: March 1, 2016
Some regulations of professional-client communications raise important, but so far largely overlooked, constitutional concerns. Three recent examples of professional speech regulation – restrictions on physician inquiries regarding firearms, “reparative” therapy bans, and compelled abortion disclosures – highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right – the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First Amendment scrutiny. Many professionals perform critical, but under-appreciated, functions with regard to the recognition and effective exercise of constitutional rights. Moreover, the author contends that the mere fact that the speakers are professionals and the listeners are clients or patients does not extinguish or diminish First Amendment protections or concerns. To the contrary, the examples discussed in the Article demonstrate various reasons, rooted in free speech values, constitutional rights, and professionalism norms for subjecting at least some professional speech regulations to heightened First Amendment scrutiny.
Keywords: professional speech, rights speech, professionalism, free speech, abortion, equality, right to bear arms, Second Amendment
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