Monday, October 13, 2014

Unpacking the Regulation of “Professional Speech”

Guest Blogger

William M. Sage

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

In the absence of the First Amendment, regulating commercial activity through information would seldom be controversial.  Mandatory disclosure (and even the much less common practice of proscribing corporate information-sharing) is generally considered less intrusive than “command-and-control” regulation.  It also accords with a variety of ideological perspectives, ranging from market facilitation among conservatives to a “right to know” among liberals.  The constitutional overlay of First Amendment rights, particularly as developed by the Roberts Court, makes legal analysis more difficult.

Regulation of speech involving licensed professionals – such as physicians, dentists, attorneys, and accountants – adds even greater nuance.  In a line of decisions dating back over 30 years but recently increasing in variety and frequency, the courts have considered the legality of restrictions on professional advertising, prohibitions on counseling and interviewing, obligations to share particular information with patients in advance of treatment, and various other professional regulatory measures.

Why do these cases challenge constitutional lawyers more than other commercial cases?  A profession, as Harvard law dean Roscoe Pound usefully defined it, is a group “pursuing a learned art, as a common calling, in the spirit of public service.”  Sociologist Steven Brint distinguishes further between “expert knowledge professions” and “social trustee professions,” while emphasizing that many modern professions encompass elements of both roles.  These attributes introduce into the analysis of professional regulation considerations of specialized knowledge and judgment, collective self-governance, and obligation to both individual clients and the broader society that go substantially beyond the notion that professionals voluntarily subject themselves to government oversight by receiving a license from the state. 

Information-based regulation of the professions has a broad range of goals (and risks).  It can be used to enforce (or undermine) fiduciary obligation, to uphold (or endanger) social values, to shield (or threaten) personal privacy, and to promote (or discourage) market competition.  In particular, the “state action” that triggers First Amendment review is harder to assess because government appears in many guises.  Legislatures occasionally attempt to compel or restrict professional speech, as do (more rarely) administrative agencies.  These cases, like other commercial speech cases, may require courts to resolve tensions between such legitimate regulatory goals regarding competition, safety, or other aspects of general welfare and the profession’s obligation to exercise independent judgment based on expertise, maintain fiduciary trust with its clients, and – particularly for attorneys – play a larger role in society.

Often, however, state regulation of professions is intermediated by a self-regulatory entity, typically a licensing board.  For the health professions, licensing board oversight falls on the cusp between formal state action and collective private governance – an ambiguity that the Supreme Court may clarify this term (North Carolina Dental Board v. FTC).  Should state action be absent, professional restrictions on speech may offend antitrust laws even if they are beyond the reach of the First Amendment.  For law, the self-regulator is almost always the judiciary, which settles the question of state action but yields oddities in terms of further recourse.  For most professions, moreover, the evidence base for regulation is incomplete and idiosyncratic.  As a result, the innate expertise and morality of self-regulatory entities tend to compete with, and may overshadow, the scientific proof or other objective evidence that courts typically require to underlie regulatory intervention in non-professional contexts.

State licensing boards may restrict or compel licensee speech through both individual disciplinary action and rule-making.  They typically frame those interventions as policing “unprofessional conduct,” which challenges the speech-conduct distinction in First Amendment analysis.  The fiduciary bond between a professional and a client often depends on verbal interaction to build intimacy and trust, and relies to a considerable degree on the professional’s knowledge and judgment to convert raw information into effective professional service.   Licensing boards view oversight of these relationships to be within their core expertise and mission.  Licensing boards may even regard speech outside the fiduciary context (i.e., speech directed at society more generally) as “unprofessional conduct” – such as promoting discredited medical research or testifying irresponsibly as an expert witness.

In addition, government often compels or restricts professional speech as a payer rather than as a regulator.  Social importance both defines professions and induces government to support them through public expenditure.  Whether compelled or restricted speech is a condition that government may lawfully place on funding professional services seems to depend on the circumstances.  Significant factors may include whether the funded services are considered holistic or specialized, whether they are delivered more through technology or through personal interaction, whether their social contribution is as important as their benefit to individual recipients, and whether they operate within an adversarial or non-adversarial framework.

One final issue is worth noting.  Going forward, many professional services that were formerly the province of solo practitioners and partnerships will increasingly be offered on a corporate, industrialized basis.  Whether this trend collapses and therefore simplifies any constitutional distinction between “professional speech” and general commercial speech, or whether it further complicates the analysis, remains to be seen.

William M. Sage, is James R. Dougherty Chair for Faculty Excellence at the University of Texas at Austin School of Law. You can reach him by e-mail at 

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