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 BSage@law.utexas.edu