Unprofessional Advice

Abstract

Professional speech should receive robust First Amendment protection. It should be shielded from state interference that seeks to prescribe or alter the content of professional advice. But how should we decide what advice falls within the scope of defensible professional knowledge? Where, in other words, does First Amendment protection for professional speech end and tort liability for professional malpractice begin? This Article provides a theoretical foundation to distinguish professional from unprofessional advice.

The professions are best conceptualized as knowledge communities whose main reason for existence is the generation and dissemination of knowledge. But knowledge communities are not monolithic; there is a range of knowledge that is acceptable as good professional advice. Advice falling within this range should receive robust First Amendment protection. Conversely, bad advice is subject to professional malpractice liability, and the First Amendment provides no defense. Protecting good professional advice and sanctioning bad advice requires a normative and doctrinal defense for excluding outliers from First Amendment protection. In providing such a defense, this Article puts the First Amendment into conversation with the tort law of professional malpractice and the law of evidence governing the admissibility of expert testimony. Conceptualizing professionals as members of knowledge communities, this Article provides a theory to identify the range of valid professional knowledge for First Amendment purposes.

Keywords: professional speech, First Amendment, constitutional law, torts, medical malpractice, professional responsibility, law and religion, evidence

JEL Classification: I18, K10, K13, K 20, K30, K32