Supreme Court Should Heed Warnings Over Professional Speech Doctrine

One of the more interesting cases before the Supreme Court this term concerns the constitutionality of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act.  The law requires licensed pregnancy-related clinics to disclose to patients the existence of family-funded clinics that provide abortion services.

Three religious-based non-profits challenged the law as an unconstitutional compulsion of speech.  The groups argue in National Institute of Family and Life Advocates v. Becerra that the state cannot force or commandeer them to advocate a message or viewpoint contrary to their beliefs.

Both a federal district court and the U.S. Court of Appeals for the 9th Circuit upheld the law.   The 9th Circuit relied in part on something known as the “professional speech doctrine.”  Under this doctrine, courts give government officials greater power to regulate the speech of professionals when rendering advice to patients or clients.

The 9th Circuit reasoned that the mandated license notice was a form of professional speech, because the notice related to information related to the welfare of clients rather than speech about public affairs.  The 9th Circuit explained that “professional speech is speech that occurs between professionals and their clients in the context of their professional relationship.”

This definition of professional speech is quite broad.  It could apply to any speech uttered by a physician or other professional.  The Cato Institute, in its amicus brief, warns that “[a]bsent a limiting principle centered on expert knowledge, there is little a state could not force its licensed physicians to say under the auspices of ‘professional speech’ regulation.”   The group warns that applying the doctrine in this context makes doctors mere “mouthpieces” for state-favored messages or viewpoints.

First Amendment expert Rod Smolla explains in a recent law review article that “the professional speech doctrine is generally used by courts to reduce the level of First Amendment protection professionals receive for their expression.”   He also explains that existing First Amendment principles suffice to handle the regulation of such speech and concludes that the professional speech doctrine “does more harm than good.”

There is much to support in the positions of the Cato Institute and scholar Smolla.  Regardless of whether the California law is constitutional, the Supreme Court should pay close attention to the rationale known as the “professional speech doctrine” and make sure that the concept is not used to regulate too much speech.

A broad application of the professional speech doctrine could lead to rank censorship and compulsion of expression.

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