When the state tells professionals what they can say

You're a lawyer advising a client. Would you want the state to tell you exactly what you may or may not say? What if you're a doctor advising a patient? A therapist, or a pharmacist? Of course the state can regulate the professions in all sorts of ways: through licensing schemes, advertising regulations, and the imposition of professional malpractice liability. But some types of state regulation go further. They try to target the content of the communication between a professional and a client. Sometimes such regulation aligns with professional insights, but sometimes it is inconsistent with or contradicts them. And when state regulation and professional insights clash, we see the tension between regulation of the professions and professionals' free speech interests.

In recent cases, that tension has become quite evident. One prominent example involves state laws prohibiting licensed mental health care providers from engaging in "sexual orientation change efforts," or conversion therapy, for minors. California and New Jersey have such laws on the books, which were enacted by referring to the findings of various professional organizations' statements on the matter. More states will likely enact similar legislation. According to the NCLR #BornPerfect campaign, seven states and the District of Columbia are actively considering passing such laws. The 9th U.S. Circuit Court of Appeals in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), cert. denied 134 S.Ct. 2871 (2014), and the 3rd U.S. Circuit Court of Appeals in King v. Christie, 767 F.3d 216 (3d Cir. 2014), rightly upheld the California and New Jersey statute respectively, but for the wrong reasons, and by using diametrically opposed approaches. The 9th Circuit considered the California law to be about professional conduct, whereas the 3rd Circuit considered the New Jersey law to be about speech.

The right way to approach these issues is to think about the professions as knowledge communities, that is, communities whose main reason for existence is the generation and dissemination of knowledge. Professionals are part of a community of individuals who share common knowledge and experience as a result of training and practice. They solve similar problems by drawing on a shared reservoir of knowledge. They have common ways of knowing and reasoning (in our knowledge community that's called "thinking like a lawyer"). So when we think about the professions as knowledge communities, we should be highly skeptical of state interference with professional insights. What we should be mainly concerned about is the unimpeded flow of the knowledge community's insights to the client, through the conduit of the professional, within the professional-client relationship. That's why, in the end, the 9th Circuit and the 3rd Circuit reached the right result in the conversion therapy cases: state regulation aligned with professional insights.

But sometimes that's not the case. A prominent example where state regulation does not align with professional insights involves a Florida statute that prohibits doctors from asking about gun ownership as a matter of course. (In the press, this dispute has been dubbed "docs vs. glocks.") The 11th U.S. Circuit Court of Appeals upheld that law in Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014), determining that the state had a legitimate interest in restricting professionals' speech as "a legitimate regulation of professional conduct." Unlike professional groups, the state deemed inquiry into gun ownership as a matter of course irrelevant. But, as the dissent noted, legislators and doctors "have different definitions of 'relevant.'"

What the conversion therapy laws and this law have in common is that the state legislatures tell professionals what they may say to their clients. But in the conversion therapy cases, state regulation codifies the professional insights. By contrast, the Florida gun law contradicts professional insights.

Let's go back to the lawyer advising a client. We intuitively agree that we can't advise our clients to load up on debt in anticipation of bankruptcy, as codified in the Bankruptcy Abuse Prevention and Consumer Protection Act, which the Supreme Court held constitutional in Milavetz v. United States, 559 U.S. 229 (2010). The reason we have no difficulty agreeing with that outcome is that the law aligns with our professional norms, articulated in Rule 1.2 (d) of the ABA Model Rules of Professional Conduct.

If the First Amendment should protect professional speech from outside (and in particular, from state) interference, what happens to the state's ability to regulate the professions? We don't want to end up with professionals who are unqualified to do the job, and we surely don't want to protect quackery as a matter of free speech. But licensing schemes ensuring that professionals meet certain educational requirements don't interfere with the communication of the knowledge community's insights within the professional-client relationship. And if we look at this from the perspective of professional malpractice liability, we see that the benchmark for sanctioning "unprofessional" speech, that is, bad professional advice, is exactly the same body of knowledge the First Amendment should protect. We don't have to abandon the idea of professional malpractice liability, because the First Amendment does not protect bad professional advice.

The law should make sure that the client gets good advice, meaning defensible professional knowledge. But it's not for the state to decide what is relevant or irrelevant, accurate or inaccurate advice. So the First Amendment should protect the professional's and the client's interest in relevant and accurate communication of the knowledge community's insights when a client seeks a professional's advice.