Monday, October 13, 2014

Professional speech and public discourse

Guest Blogger

Robert C. Post

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

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 at An earlier version of this blogpost appeared in the New York Times.

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