Professional Speech and the First Amendment

Abstract

A growing number of courts are recognizing a new First Amendment doctrine governing regulation of a category of expression known as “professional speech.” Courts invoking this new doctrine generally define professional speech as expression by persons in a regulated profession, such as medicine or law, and usually (but not always) limit the application of the doctrine to contexts in which the professional is rendering counsel or advice, such as a doctor to a patient or a lawyer to a client. The professional speech doctrine is generally used by courts to reduce the level of First Amendment protection professionals receive for their expression.

The professional speech doctrine is gaining momentum. Until the Supreme Court formally certifies it as an established First Amendment principle, however, it has only provisional stature on the First Amendment landscape. The purpose of this Article is to arrest the momentum of the professional speech doctrine, and urge its rejection. The thesis of this Article is that recognition of the professional speech doctrine will result in allowing government censorship of professional expression that ought to receive robust First Amendment protection, and that in those instances in which it is appropriate to permit regulation of professional speech, existing First Amendment doctrines are perfectly suited to the task. In considering how best to steer the evolution of First Amendment jurisprudence, it makes sense to borrow from the first rule of medicine: “do no harm.” Acceptance of a new professional speech doctrine will do more harm than good, and is not needed to provide government regulators with the space required to impose appropriate restrictions on the conduct and expression of professionals in relation to their clients, in those instances in which such regulation is justified.

Keywords: professional speech, free speech, First Amendment, freedom of speech, professions

JEL Classification: K10