The professional speech doctrine is a concept used more frequently by lower courts in recent years to define and often limit the free-speech rights of professionals when rendering advice or counsel. The doctrine has been applied by several federal appeals courts to limit the free-speech rights of doctors or therapists.
Circuit courts decided free speech rights are lessened when doctors dispense professional advice
For example, the Ninth U.S. Circuit Court of Appeals used the professional speech doctrine to limit the speech of psychotherapists from engaging in “sexual orientation change efforts” (SOCE) with minors in Pickup v. Brown (9th Cir. 2013). The Ninth Circuit reasoned that the free-speech rights of medical providers is at their zenith when they are engaging in communication about public issues, but that those free-speech rights are lessened when they are dispensing medical advice.
“Most, if not all, medical and mental health treatments require speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment,” the Ninth Circuit wrote. Applying a version of the speech-conduct dichotomy, the Ninth Circuit focused on the fact that the physicians’ speech concerned treatment less than speech about public issues.
The Eleventh U.S. Circuit Court of Appeals discussed the professional speech doctrine in Wollschlaeger v. Governor of Florida (2017), a case involving a law, called the Florida Firearms Owners’ Privacy Act, prohibiting doctors and medical professionals from harassing patients or discriminating against patients because they own guns.
Professional speech doctrine traced back to Supreme Court opinions
Some courts trace the professional speech doctrine to Justice Byron White’s concurring opinion in Lowe v. SEC (1985). In that decision, Justice White reasoned that when a person is engaging in speech as a professional with a client, in that case, advice about securities, he or she is “engaging in the practice of a profession” and the speech is “incidental to the conduct of the profession.”
Legal scholar Daniel Halberstam traced the doctrine back to Justice Robert Jackson’s concurring opinion in Thomas v. Collins (1945), a case involving regulating the speech of labor organizers. Jackson opined: “A state may forbid one without its license to practice law as a vocation, but I think it could not stop an unlicensed person from making a speech about the rights of man or the rights of labor, or any other kind of right, including recommending that his hearers organize to support his views.”
Part of the doctrinal uncertainty rests with the fact that the concept of a professional speech doctrine emerges from different concurring opinions and the U.S. Supreme Court has never addressed the concept holistically in a majority opinion with any detailed analysis.
Current First Amendment analysis lacks a coherent view of professional speech
Back in 1999, Halberstam explained that “current First Amendment analysis lacks a coherent view of speech in the professions.” (Halberstam, 772). The same could be said in 2017. As free-speech expert Rodney Smolla writes, “[u]ntil the Supreme Court formally certifies it as an established First Amendment principle, however, it has only provisional stature on the First Amendment landscape.” (Smolla, 68).
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.