Commercial speech, professional speech, and the constitutional status of social institutions.

Author:Halberstam, Daniel


Current First Amendment analysis lacks a coherent view of speech in the professions. Classic cases address the street-corner orator, lone pamphleteer, newspaper editor, broadcaster, cable operator, public employee, grant recipient, vendor, corporation, and, most recently, Internet content provider. And an abundance of theory accompanies these speakers along the way. Although some of these actors may be professionals, both theory and practice generally meet their roles as members of a profession with silence. Despite the century-old recognition of the regulation of professions, we still have, for example, no paradigm for the First Amendment rights of attorneys, physicians, or financial advisers when they communicate with their clients.

Unlike the street-corner speaker, who addresses whomever walks by about whatever is on the speaker's mind, a professional fulfills a more defined social role by offering specific knowledge and expertise to an audience that deliberately seeks access to such information and often to the professional's judgment about a particular issue. Clients seeking a professional's counsel expect the professional to adhere to this social role, and professionals generally hold themselves out as doing so. In this sense, professional and client share a predefined relationship that runs far deeper than the relationship between pedestrians and soapbox orators who share the same physical space. The communication in the latter case is generally determined only by the ensuing conversation, whereas that in the former case is understood as bearing certain regularities that transcend any particular dialogue. For example, although members of any given learned profession may differ in their individual judgments about particular issues, their role as professionals traditionally implies their subscription to a body of knowledge that is shared among their peers. A learned professional mediates between an open, often formal and structured system of learning and the client's desire to draw upon it to make personal life choices. A professional thus straddles both the public and private realms by adhering to a defined social role while assisting individuals in making personal choices based on the cumulative knowledge of the profession.

The function and scope of government regulation mirrors the social role of professionals. The State may ensure professionals' faithfulness to the public aspects of their calling, but it may not usurp their role or determine independently the bodies of knowledge that may be accessed or the individual judgments that may be rendered in a given case. Government regulation thus plays a complementary role in maintaining the profession by reflecting and implementing this balance between the public and the private. In part nurtured by, and in part protected from, government regulation, professions serve a vital informational function in our society because they promise citizens access to a realm of shared knowledge that is neither state propaganda nor private fancy.

The Supreme Court has only once issued a holding expressly confronting the First Amendment protection of professional speech. In Planned Parenthood v. Casey,(1) a decision not generally thought of as a First Amendment case, the Court addressed a state requirement that physicians pass along certain information to their patients about the gestational age of the fetus and social services that may function as alternatives to abortion. In upholding the regulation, the lead opinion, authored by Justices O'Connor, Kennedy, and Souter, noted:

To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.(2) The passage tells us that physicians enjoy First Amendment rights, but provides little guidance about the weight given to the First Amendment interests involved. The application of Wooley would demand a compelling governmental interest to overcome the physician's First Amendment rights, or at least a substantial interest that was unrelated to the content of the speech.(3) It would require that the regulation be narrowly tailored to that interest as well.(4) The passage cited from Whalen, on the other hand, would appear to import only the basic due process limitations on nonspeech regulations of professionals.(5) To fuse these two models in a shorthand formulation provides little indication of how to resolve any professional's First Amendment claim other than the precise one at issue in Case),. It does suggest, however, that the State sometimes may coerce a person, whose choice to remain silent would otherwise be protected from state interference by the First Amendment, to speak when the communication takes place in the context of a professional relationship with a client. Casey thus would appear to point to the conclusion that, in some respects, a professional's rights under the First Amendment are diminished as compared to those of, for example, the street-corner speaker engaged in a similar conversation.

Even this minimal conclusion, however, seems to run squarely counter to the tenor of a prior discussion by the Court in which it famously avoided the question of professional speech. In Rust v. Sullivan,(6) the Court upheld a Title X role preventing federally-funded family planning clinics from advising recipients of services relating to "abortion as a method of family planning."(7) In upholding the administrative interpretation of the statute, the Court principally reasoned that the government had merely refused to fund, as part of a federal program promoting a specific government policy, an activity of which the government disapproved. The Court nevertheless emphasized that it was not suggesting "that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression."(8) After referring to the traditional public forum and the government-funded university as arenas of free expression that the government may not regulate by attaching conditions to grants of property or money, the Court noted that the same might be true of subsidizing the practice of medicine: "It could be argued by analogy that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from Government regulation, even when subsidized by the Government."(9) In other words, the existence of a "traditional relationship" between the interlocutors might engender special protection from selective government funding. The Court found no need to decide that question in Rust, however, because the restrictions in question did not "significantly impinge upon the doctor-patient relationship."(10) The Court found that a physician was not required to "represent as his own any opinion that he does not in fact hold."(11) Moreover, the Court held, "the doctor-patient relationship established by the ... program [is not] sufficiently all-encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice."(12) In short, according to the Court, the physician in Rust was not acting as a comprehensive professional, but rather as a limited service provider in a program defined by the government.

The Rust majority's recognition, at least in principle, of the protected status of physician-patient communications, comports with the Court's judgment elsewhere in the legal and medical contexts that professionals play a special role in assisting individuals in the exercise of personal autonomy and the vindication of basic rights.(13) This conclusion, however, counsels against the simple deduction from the lead opinion in Casey that professional speech is generally entitled to only "minimal" or "reduced" protection under the First Amendment. Reading Rust and Casey together, then, suggests that professional speech is subject to a more complicated balance of First Amendment protection.

In examining government limitations on professional speech, some lower courts have occasionally looked to the tests developed by the Supreme Court for analyzing commercial speech restrictions. These courts have, however, done so without delving into why such tests should be applicable in the professional context. A serious consideration of both Casey and Rust seems to render the comparison curious at first, because the Supreme Court has historically presented communications between buyer and seller as occupying a clearly "subordinate position in the scale of First Amendment values,"(14) not a position deserving of any special protection. Conventional First Amendment doctrine holds that the Constitution protects commercial speech only to enable listeners to receive valuable "information" about the market.(15) The caselaw presents the constitutional protection of commercial speech as not born out of true regard for the communicative interaction between a buyer and seller, but as almost a by-product of the real concern about the important information that just happens to be conveyed in the course of loud selling tactics. Commercial speech is thus generally presented as subject only to "limited protection" commensurate with its subordinate informational function.(16) On the theory that professional speech is similarly "less protected" than nonprofessional (and noncommercial) speech, the analogy to conventional commercial speech doctrine would surely be plain. The analogy to the conventional conception of commercial speech becomes strained, however, as soon as professional speech is viewed as especially...

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