Pseudoprofessional Advice

Abstract

Public demand for health advice soared during the coronavirus pandemic. Numerous health experts, including licensed professionals and other individuals claiming relevant expertise, disseminated health advice on social media, television, and elsewhere. Some of this advice aligned with professional knowledge; some did not. And some advice even resulted in physical harm to those who followed it. Yet, the law does not constrain bad advice outside of the professional relationship.

This scenario highlights the still undertheorized gulf between the treatment of speech in the professional relationship and speech outside of it. Within the confines of the professional relationship, the First Amendment operates in a way that safeguards good advice. Outside of this relationship, good and bad advice are treated as equals. Perhaps this reflects an appropriate tradeoff between expertise and freedom of speech in ordinary times. But the value of this tradeoff is significantly strained when the stakes of advice-giving are high, exposing the weakness of the traditional framework.

Focusing on “pseudoprofessional advice,” that is, advice offered by licensed professionals outside of the professional relationship that contradicts professional insights, this Article reexamines the theoretical and doctrinal interplay among speech, harm, and expertise. It argues that the traditionally rigid doctrinal distinction between the speech of licensed professionals within the professional relationship and their speech outside of it does not adequately capture the normative interests implicated by pseudoprofessional advice. Translating these normative insights into doctrinal prescriptions, this Article concludes that regulatory interventions can be justified to tie licensed professionals’ speech to professional knowledge in order to safeguard against harm.

Keywords: First Amendment, free speech, constitutional law, professional licensing, professional discipline, torts, malpractice, informed consent, professional speech

JEL Classification: K10, K13, K20, K30