Professional speech.

• Author: Haupt, Claudia E.
• Position: II. Theorizing Professional Speech through Conclusion, with footnotes, p. 1269-1303

2. THEORIZING PROFESSIONAL SPEECH

   Conceptualizing the learned professions as knowledge communities allows us to rethink professional speech in light of the traditional theoretical justifications for First Amendment protection. Professional speech as a distinctive form of speech is worthy of First Amendment protection. Situating professional speech within the standard theoretical accounts illustrates the unique ways in which this type of speech intersects with the underlying interests. While some scholars have emphasized the democratic self-government justification for protecting professional speech, (159) this Part suggests that other First Amendment theories, based on autonomy interests and the marketplace of ideas, also justify-in a way distinct from other speech contexts--First Amendment protection for professional speech. Without taking a position on which of these traditional theories best justifies First Amendment protection, (160) and without ascribing any particular ranking to them, (161) I suggest that professional speech interests sound in all standard theories.

   With respect to autonomy interests, the role of the professions as knowledge communities reframes the importance of professional autonomy. Although the emphasis is traditionally on the listener when the informational value of the communication is at issue, the speaker's autonomy interests are implicated as well. Likewise, the knowledge community idea reframes the application of the marketplace theory. The individual professional, under this view, is closely connected to the marketplace of ideas that may be found within the discourse of the profession. Finally, with respect to democratic self-government, the knowledge community concept influences the application of that theory of First Amendment protection for speech. Its effect can be seen in two directions. First, it explains how the individual client can benefit from professional advice directly and how the knowledge basis of the entire community can be enhanced by the individual professional's communication of the knowledge community's insights to one client. Second, by providing a close link between the individual professional and the knowledge community, it brings together the individual focus of those who favor a participatory perspective of democratic self-government with those who would focus on the role of the collective. (162)

   1. Autonomy Interests

      The autonomy interests implicated by professional speech are somewhat distinct from other speech contexts. (163) I will call "decisional autonomy interests" the interests of the listener who needs the information to make an informed decision. (164) Decisional autonomy in the professional speech context is very different from the commercial speech context. While commercial speech targets the autonomy of the listener to make commercial choices--thereby contributing to the ability to make independent decisions--the target of professional speech is much more closely connected to the self, at times concerning the physical or psychological integrity of the listener's own person. Moreover, the speaker pays for the speech in the commercial speech context (though, of course, the goal of commercial speech is often to persuade the consumer to buy a product or service) whereas it is the listener who pays for the speech in the professional speech context, indicating that the economic interests do not align. In professional speech, by contrast with commercial speech, payment for services is secondary to the knowledge-based nature of the service provided. (165)

      The other autonomy interests are those of the speakers, which I will call "professional autonomy interests." The qualifier "professional" signals that it is not so much the autonomy interest to freely express one's personal opinions--as is the case in free speech theory concerning public discourse--but rather to communicate insights of the knowledge community as a member of the profession.

      1. Decisional Autonomy Interests

         The professional relationship is typically characterized by an asymmetry of knowledge. Clients seek professionals' advice precisely because of this asymmetry. "Clients are presumed to be dependent upon professional judgment and unable themselves independently to evaluate its quality." (166) This is not unique to the learned professions. As Kathleen Sullivan has pointed out, "Lawyers know far more about law than their clients, but information asymmetry creates moral hazards (such as the incentive to lie about the gravity of a problem) for auto mechanics as well." (167) These hazards are exacerbated when the client's personal health or freedom or significant financial interests are at stake. Thus, "the government may properly try to shield the client from the professional's incompetence or abuse of trust." (168)

         The listener's interests are only served if the professional communicates information that is accurate (under the knowledge community's current assessment), reliable, and personally tailored to the specific situation of the listener. The client's agency requires that the ultimate decision rest with her. The nature of the professional-client relationship gives rise to fiduciary duties. (169) To bridge the knowledge gap, and to ensure the protection of the client's decisional autonomy interests, the professional has to communicate all information necessary to make an informed decision to the client.

         Thus, the interest in full disclosure is linked to the autonomy interests of those seeking the advice of professionals. To the extent that this is facilitated by an informed consent requirement, as in the medical context, the potential for corruption of the information by outside interference is particularly troublesome. As Justice Stevens pointed out in his opinion in Casey, "Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best." (170) But while this concern is perhaps most obvious in cases involving bodily integrity, (171) other forms of professional advice should be equally uncorrupted for the same reason. Concerns regarding the agency of the listener obtain in all professional speech contexts.

      2. Professional Autonomy Interests

         To the extent autonomy interests matter in professional speech, the focus tends to be on the listener's interests. (172) But the speaker's autonomy interests are also at stake. Some commentators fall back solely on the professional's personal autonomy interests. (173) Professionals as individuals of course have a First Amendment right to speak their own mind in public discourse, perhaps even challenging the knowledge community's insights. (174) But this is not a primary concern in the professional speech context. Quite to the contrary, there is an expectation within the professional-client relationship that the professional does not challenge the knowledge community's insights in dispensing professional advice. (175)

         The professional not only speaks for herself, but also as a member of a learned profession--that is, the knowledge community. And that community has an interest of its own. Only if the community remains autonomous can it develop and refine the specialized knowledge that is its essence and the source of its social value. The professional speaker has a unique autonomy interest in communicating her message according to the standards of the profession to which she belongs, precisely in order to uphold the integrity of its knowledge community. Physicians, for instance, should not be compelled to speak in a way that undermines their profession's scientific insights.

         This goes beyond the structural interest in protecting the "bounded speech institutions." (176) It also concerns the content of the communication. While some commentators assert that the professional's autonomy interests guard against compelled speech "on matters of religion, politics, and values," (177) the professional autonomy interests reach much further. Corrupting the content of a communication to a client within the professional-client relationship fundamentally concerns the professional autonomy interests of the professional. This is an interest that goes to the identity of the professional as a member of a profession, (178) rather than the professional's individual autonomy interest, which is entirely unrelated to her professional role. Conceptualizing the professional as a member of a knowledge community brings the autonomy interest in articulating the uncorrupted insights of the knowledge community into focus.

   2. Marketplace Interests

      In the realm of professional speech, the classic Holmesian notion of a "free trade in ideas" (179) would seem to have little purchase. (180) While "the best test of truth is the power of the thought to get itself accepted in the competition of the market," (181) the professional does not seek to subject her professional opinion to this test when speaking within the confines of the professional-client relationship. (182) The pragmatic dimension of the market metaphor does not apply: experience and truth in the current assessment of the knowledge community are quite obviously located with the professional, making it inapposite "to capture the idea that truth must be experimentally determined from the properties of experience itself." (183) Indeed, the state may ensure that clients seeking professional advice are not harmed by "false" ideas by way of imposing professional malpractice liability. (184) Thus, the classic marketplace paradigm is inapplicable to professional speech within the professional-client relationship.

      Nonetheless, there is another facet to the idea of the marketplace theory as applied to professional speech. (185) Although scholars have observed that professional speech is distinct from other speech, "which generally treats the truth as just 'another opinion,'" (186) the details remain underexplored. As Paul Horwitz has put it, in the...