Tuesday, October 14, 2014

Free Speech, Medicine, and Public Health: An Overview of Issues

Guest Blogger

John Robertson

For the conference on Public Health in the Shadow of the First Amendment


Restrictions on speech in professional or public health contexts include both funding conditions and restrictions on what must or must not be said.  Some restrictions entail straightforward First Amendment analysis, while others raise the question of whether professional speech occupies a special niche of more limited scrutiny.  Still others raise questions about commercial speech doctrine and its application to medical or health-related information.  A comprehensive theory uniting all situations is still wanting.  Delineating family resemblances may be all that is possible.  Building on the work of Robert Post, Eugene Volokh, Jack Balkin, and others, this conference explores this territory.

Speech in Government Funded Health Activities

One cut at the issues distinguishes disputes involving government funding of regulated activities from nonfunded situations.  At one pole is Rust v. Sullivan, 500 U.S 173, (1991), which upheld restrictions on doctors discussing abortions funded under a Title 10 federal contraceptive program.  The Court found that the program in essence funded government speech by private doctors, thus allowing the government leeway in limiting what funded doctors could say to patients treated under that program.  At the other pole is Legal Services Corp. v. Velasquez, 531 U.S. 533, (2001), which struck down a restriction on LSC lawyers challenging welfare laws on behalf of their clients.  Finding that the LSC was intended to support a diversity of views, the Court held that the restriction constituted a viewpoint restriction and could not stand.  Future funding of medical and health activities conditioned on mandates to speak or refrain from speaking will have to navigate the space between Rust and Velasquez, and other conditional funding cases.

When government funding is not involved, the analysis of government regulation of medical professional speech directly implicates the First Amendment.  Conceptually, the analysis will be the same whether the state is mandating or is restricting speech.  To get a flavor of the area, however, it is useful to consider cases that group into one or the other category. 

Mandates to Speak

One set of cases involves mandates for health professionals to convey certain information in their interactions with patients.  Many of these arise in the abortion context with mandated disclosures about abortion risks, fetal status, etc.  Before getting to the First Amendment, those laws must first surmount the undue burden hurdle of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).  What counts as an undue burden is now in flux, with lower courts disagreeing about how much judges must balance rationally based state regulatory interests against the access burden they place on women.  This question, which only the Supreme Court can answer,  has arisen most recently with state requirements that abortion providers have local hospital staff privileges and that clinics meet the licensing standards for ambulatory surgical centers.  See Whole Women’s Health v. Lakey, No 14-50928 (5th Cir. 2014).

If no undue burden is found, a separate First Amendment question about how vigorously the state may limit professional speech may still arise.  Do licensed professionals retain First Amendment rights in professional relationships that are otherwise subject to state regulation?  Many scholars would argue that even if the state has wide regulatory power over professional activity, the First Amendment requires that speech mandates (or restrictions) must survive intermediate rather than rational basis scrutiny.  If this is correct, mandates that meet a rational basis test and thus, according to some courts, do not constitute an undue burden on abortion, may still fail an intermediate scrutiny test for justifying the mandated speech.

 On the other hand, disclosures that involve true information, such as sonogram images of the fetus, may violate not violate Casey if compelling sonograms does not stop women from having abortions or substantially increase their distress.  Nor would it necessarily violate the physician’s residual speech rights, if the information is true, does not create a substantial burden on them, and may enhance understanding.  In other reproductive settings mandates might raise commercial speech issues.  Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore, 721 F.3d 264 (2013), a case involving a municipal requirement that limited service pregnancy centers post signs that they did not offer abortion, suggested that a commercial speech analysis is the best approach to mandates directed at preventing deceptive practices.

Restrictions on Physician Speech

Free speech issues also arise when the government restricts what professionals might say to patients and clients.  One set of such issues arises with restrictions on professionals treating patients in ways that a medical consensus finds unsound or harmful. The court Circuit in Pickup v Brown , 728 F.3d 1042 (9th Cir., 2013) upheld a California law banning sexual orientation change efforts (SOCE) on the ground that the therapy, though almost entirely talk-oriented, operated as conduct and thus fell outside a stricter First Amendment analysis.  In contrast, the court in King v. Governor of New Jersey No. 13-4429 (3rd Cir. 2014) upheld a New Jersey law banning SOCE even though it found that SOCE was speech and also that the state had regulatory powers over what professionals might say.  The court went on to recognize that although professional speech rights were more limited, the state must still satisfy intermediate scrutiny in regulating professional speech.  The strong evidence that SOCE therapy harmed patients met that scrutiny.

Where there is no question of whether speech or conduct is involved, such as laws that ban physicians from asking patients questions about whether there are firearms in the home, a straight forward First Amendment analysis will apply.  That law is content-based, but because it limited physicians to asking patients only about matters that directly affected their health care, it fell within the state’s right to keep doctor-patient conversation focused on patient interests.  See Wollschlaeger v. Florida, No. 12-1409 (11 Cir., 2014).  Opponents  of  the law might still argue that general questions about firearms in the home is relevant to patient health in many settings.  However, Wollschlaeger appears to require a closer nexus.

Finally, an important set of government restrictions on medical and health related speech arise from FDA bans on advertising or promoting off-label uses of approved drugs.  This has been a contested area for many years, with opponents drawing on commercial speech cases to argue that such a ban oversteps the government’s regulatory power.  For example, the court in United States v. Caronia, 703 F.3d 149 (2d Cir. 2013)  found that a drug representative’s misdemeanor conviction for orally promoting off-label use was a violation of his right to engage in constitutionally protected commercial speech.  However, even if Caronia’s reasoning holds, the FDA may be able to define safe harbors for off-label promotion.  A more narrow basis for such a ban, such as off-label promotions in which safe harbors for “substantial clinical experience” or “substantial evidence” exists, is more likely to respect commercial speech rights.  See Aaron S. Kesselheim & Michelle Mello, “Prospects for Regulation of Off-Label Drug Promotion in an Era of Expanding Commercial Speech Protection,“ 92 N.C.L. Rev. 1539 (2014).

This brief overview gives a sense of the breadth and importance of speech restrictions and mandates in medical and public health contexts.  Even if a unifying theory is not available, consistent recognition of speech values in each setting is a major challenge.

John A. Robertson is the Vinson & Elkins Chair at the University of Texas School of Law. You can reach him by e-mail at


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