an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The First Amendment has become the joker of constitutional litigation. It is now being applied with lethal results in all kinds of unpredictable circumstances. The consequences for the regulation of medicine, particularly in the area of reproductive and sexual rights, are enormous.
No one doubts that physicians are responsible to patients for their malpractice, and that malpractice can occur through speech, or through the absence of speech. The First Amendment has never been thought to have any application to such tort liability. Physicians are routinely sued for malpractice with no First Amendment defense at all. Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 University of Illinois Law Review 939.
In recent cases, however, the First Amendment has suddenly been inserted between physicians and patients. Consider Planned Parenthood of Heartland v. Heineman, 724 F.Supp.2d 1025 (D. Neb. 2010), in which a federal district court used the First Amendment to strike down a Nebraska anti-abortion statute that required “medical providers to give untruthful, misleading and irrelevant information to patients.” Id.at 1048. Requiring doctors to false information designed to deter patients seeking an abortion has become a favorite tactic of the anti-abortion movement. See Planned Parenthood Minnesota, North Dakota, South Dakota v. Daugaard, 799 F.Supp.2d 1048 (D.S.D. Jun 30, 2011). The Eight Circuit en banc recently affirmed the constitutionality of such a statute. Planned Parenthood v. Rounds, 686 F.3d 889 (8th Cir. en banc 2012).
The confusion caused by this unexpected constitutionalization of the doctor-patient relationship is exemplified by two recent cases in the Northern District of California: Welch v. Brown (E.D. Cal. December 3, 2012), and Pickup v. Brown (E.D. Cal. December 4, 2012). In Welch, a federal District Court struck down a California statute prohibiting a “‘mental health provider’ from engaging in ‘sexual orientation change efforts with a patient under 18 years of age’ under all circumstances.” The Court held that the statute regulated the content of the speech of the physician and was thus subject to strict scrutiny under the First Amendment. The court struck down the statute. In Pickup, the very same District Court on the very next day upheld the very same statute, reasoning that “the provision of healthcare and other forms of treatment is not expressive conduct,” and that the state therefore had broad discretion to regulate the practice of medicine.
The tension between Pickup and Welch, and between Pickup and Heineman, is palpable and disturbing. How are we to reconcile these conflicting lines of cases?
If we imagine that the First Amendment applies to what Justice Souter once termed “speech as such,” Glickman v. Wileman Bros. & Elliot, 521 U.S. 457, 478 (1997) (Souter, J., dissenting), then the First Amendment should apply to every communication between a physician and a patient. In effect, this would constitutionalize all of malpractice law. This does not seem a desirable result.
On the other hand, if we imagine that the First Amendment applies only to “public discourse,” only to speech that participates in the formation of public opinion, then the state would be free to manipulate physician speech without fear of constitutional restraint. The state could require physicians to instruct their patients that abortion causes breast cancer or that masturbation causes hairy palms. It could prevent physicians from informing patients of the desirability of politically controversial forms of treatment. This also does not seem like a desirable result.
In Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press (2012)), I attempt to construct an account of First Amendment doctrine that negotiates between these undesirable alternatives. I argue that the core value of the First Amendment is “democratic legitimation,” which concerns the use of speech to realize the constitutional value of self-government. An important avenue for the achieving self-government is participation in the formation of public opinion. If persons are free to participate in the formation of public opinion, and if they believe that the government is responsive to public opinion, the government can be rendered responsive to persons, and the value of self-government achieved. I use the term “public discourse” to refer to forms of communication deemed necessary to form public opinion.
On this account, the First Amendment is triggered by state efforts to regulate public discourse. The value of democratic legitimation explains core dimensions of ordinary First Amendment doctrine, like the prohibition against viewpoint discrimination, which applies to public discourse but not, for example, to speech within government institutions. Because communication between patients and physicians does not form part of public discourse, the state may ordinarily regulate such communication free from the constitutional supervision of the First Amendment.
Implicit in the value of “democratic legitimation” is a secondary value, which I call “democratic competence.” Democratic competence refers to the cognitive empowerment necessary for self-governance. The basic thought is that if the state is free to manipulate the knowledge of its citizens, self-government is a farce. This is why totalitarian governments characteristically collapse the sphere of knowledge into the sphere of politics. Democratic governments, by contrast, constrain the state from freely manipulating the creation and distribution of knowledge. Constitutional protections for academic freedom are a good example of how the value of democratic competence has been realized in our constitutional tradition.
Although communications between doctors and patients are not part of public discourse, they are nevertheless constitute an important channel for the distribution of medical knowledge. When the state attempts to corrupt this channel of distribution, as for example by forcing doctors to disseminate false information, the constitutional value of democratic competence is implicated. That is why First Amendment scrutiny is warranted in a case like Heineman. (First Amendment scrutiny would also be warranted were the state to prohibit physicians from disclosing true medical knowledge.)
But when the state simply regulates the practice of medicine, as in Pickup and Welch, the value of democratic competence is not implicated, and First Amendment scrutiny is not warranted. That is why Welch is incorrectly decided.
Robert Post is Dean and Sol & Lillian Goldman Professor of Law, Yale Law School. You can reach him by e-mail at robert.c.post at yale.edu