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Do laws that regulate the professional speech of doctors trump
the First Amendment? The underlying premise of this question is that the First
Amendment applies whenever a person engages in what would colloquially be known
as “speech.” If a doctor talks to patients, and if the state regulates this
medical “speech,” the First Amendment must be “trumped.”
I reject that premise. If First Amendment scrutiny were
triggered every time a person communicates, tort liability for product warnings
and instructions would be constitutionalized. All state regulations of contract
formation would be constitutionalized. Securities and Exchange Commission
requirements of corporate disclosure would be constitutionalized. Antitrust
legislation would be constitutionalized.
But this has never been the landscape of our law. We accord
First Amendment protection to allow all to participate in the formation of
public opinion, which, as James Madison observed, is “the
real sovereign in every free” government. In a democracy like ours,
all must be equally free to contribute to public discourse.
Public discourse does not include contracting, product
warnings and labels, corporate disclosure forms, or antitrust behavior. It is
for that reason that none of these forms of “behavior” receive First Amendment
protection, even though each involves “speech” in its colloquial sense.
Analogously, the practice of medicine forms no part of
public discourse. That is why doctors are sued every day in medical malpractice
for speaking or failing to speak. None of these suits ever involves the First
Amendment. Were it otherwise, state regulation of the practice of medicine
would be fundamentally constitutionalized.
When doctors engage in public discourse as citizens, they
should and do receive the protection of the First Amendment. Thus Dr. Oz can make whatever
recommendations he wishes when he speaks publicly on his television show. If he
is sued for his opinions, he can claim the First Amendment as a defense. But if
Dr. Oz makes an improper recommendation in the course of his medical practice
while treating a patient, he will be subject to malpractice law and find no
refuge in the First Amendment.
There is one complication. The First Amendment protects the
circulation of knowledge, because “We the people” require knowledge to govern
ourselves. State malpractice laws uphold this circulation of knowledge, because
they require doctors to communicate reliable and accurate information.
But to the extent that the practice of medicine has become
politicized, some states have sought to corrupt this circulation by preventing
doctors from communicating relevant knowledge, or by requiring them to
communicate falsehoods. Texas, for example, seems to require physicians to
inform women that an abortion may increase their risk of breast cancer. This is
false, and it frustrates an underlying purpose of the First Amendment. A doctor
may sue to raise this constitutional issue, but it is misleading to imagine
that the doctor is asserting her personal First Amendment rights to speak as
she wishes. It is more accurate to imagine that she is a constitutional
spokeswoman for the rights of her patients to be informed. This is analogous to
the kind of First Amendment rights we apply in the domain of what is known as
“commercial speech.”
Robert C. Post is Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. You can reach him by e-mail at robert.c.post at yale.edu An earlier version of this blogpost appeared in the New York Times.