Sex and the First Amendment Through the Lens of Professional Speech

27 Pages Posted: 18 Mar 2019 Last revised: 17 Apr 2019

See all articles by Claudia E. Haupt

Claudia E. Haupt

Northeastern University - School of Law; Yale University - Yale Information Society Project

Date Written: March 14, 2019


First Amendment theory and doctrine apply in distinctive ways in the context of professional speech. Within the professional-client relationship, the law constrains professionals in various ways. Professionals are subject to licensing and malpractice regimes. They have fiduciary duties to their clients or patients. Because clients and patients seek professional advice in order to access knowledge they lack but need to make important decisions, professional advice must be comprehensive and accurate according to the insights of the relevant professional knowledge community. And dispensing professional advice within the professional-client relationship ought to remain free from state interference that seeks to prescribe its content in a way that contradicts professional knowledge.

Implicit in the professional speech story are themes of sex, gender, sexual orientation, and religion. Much of professional speech doctrine in the courts has most recently developed around conversion therapy laws and legislation concerning reproductive rights. In part due to continued contestation surrounding these issues, the development of professional speech doctrine has been uneven and still lacks theoretical coherence. This Article charts the sites of conflict that typically arise in the professional context, and further unpacks how professional speech theory and doctrine apply in likely future conflicts around reproductive rights and transgender healthcare.

Keywords: First Amendment, free speech, professional speech, NIFLA, healthcare

JEL Classification: K1, K19, K32

Suggested Citation

Haupt, Claudia E., Sex and the First Amendment Through the Lens of Professional Speech (March 14, 2019). First Amendment Law Review, Vol. 17, 2019, Northeastern University School of Law Research Paper No. 343-2019, Available at SSRN:

Claudia E. Haupt (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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