Professional Speech and the Content-Neutrality Trap
127 Yale Law Journal Forum (2017, Forthcoming)
23 Pages Posted: 3 Apr 2017 Last revised: 28 Jun 2017
Date Written: April 2, 2017
The Eleventh Circuit’s en banc decision in Wollschlaeger v. Florida is remarkable for embracing content neutrality as a tenet of First Amendment doctrine in the realm of professional speech. A new form of aggressive content neutrality is on the rise in First Amendment jurisprudence. Reed v. Town of Gilbert, a seemingly innocuous case about a municipal sign ordinance, ushered in what may turn out to be a dramatic shift in the way courts employ content neutrality as a core principle of the First Amendment.
But content neutrality should not be thought of as axiomatic across the First Amendment. This Essay illustrates the dangers of falling into the content-neutrality trap in the context of professional speech. Professional speech communicates the profession’s insights to the client for the purpose of providing professional advice. The value of professional advice critically depends on its content. The First Amendment therefore may not require regulation to be blind to the content of professional speech.
Keywords: First Amendment, Free Speech, constitutional law, healthcare, professional responsibility, torts, professional malpractice
JEL Classification: K10, K13, K20, K30
Suggested Citation: Suggested Citation