The Limits of Professional Speech
128 Yale Law Journal Forum 185 (2018)
16 Pages Posted: 28 Aug 2018 Last revised: 4 Sep 2018
Date Written: August 13, 2018
Professional speech is different from other types of speech. When professionals speak to their clients to give professional advice within the confines of a professional-client relationship, the law in many ways constrains what they may say. Professionals who give bad advice are subject to malpractice liability, and the First Amendment provides no defense; this creates liability for some forms of “false speech,” unknown in other areas of speech protected by the First Amendment. Professionals have fiduciary duties to their clients; such duties between speakers do not exist elsewhere in First Amendment doctrine. And the state may require professionals to obtain a license before they dispense advice; a similar requirement outside the context of a professional-client relationship would likely be an impermissible prior restraint.
But professional speech can only bear the weight of these doctrinal peculiarities if it is narrowly defined. The definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. This Essay examines the limits of professional speech through the lens of NIFLA v. Becerra, a recent Supreme Court case that struck down compelled disclosure requirements at “crisis pregnancy centers” as a violation of the First Amendment.
Keywords: First Amendment, Free Speech, Professional Speech, Compelled Disclosures, NIFLA, Professional Malpractice, Informed Consent
JEL Classification: K1, K10, K13, K2, K32
Suggested Citation: Suggested Citation