Could Doctors’ Public Condemnation of Homosexuality Lead to Medical Board Investigation of Doctors?

Yes, say 60% of the state medical boards respondents surveyed in Greysen et al., Online Professionalism Investigations by State Medical Boards: First, Do No Harm, 158(2) Ann Intern Med. 124-30 (2013). Here’s the vignette that was given in the survey:

Discriminatory Speech Online

A concerned staff member at a local hospital reports discriminatory language on a physician’s Facebook page:

“I saw this homosexual patient who came in complaining of dysuria and wants me to help. Well … that’s what you get for being gay. I really don’t feel any compassion for these people — they don’t deserve antibiotics, they need to change their behaviors.”

Note that this didn’t involve breach of patient confidentiality (that was a separate vignette). Nor is it just a matter of when a private or public employer may choose to fire an employee. Rather, this has to do with when a medical board can investigate a doctor, with an eye towards imposing disciplinary measures.

And indeed the Federation of State Medical Boards takes the same view, saying that “State medical boards have the authority to discipline physicians for unprofessional behavior relating to the inappropriate use of social networking media, such as … Discriminatory language or practices online” (again, quite apart from breaches of confidentiality, which are covered by a separate bullet point). “State medical boards have the option to discipline physicians for inappropriate or unprofessional conduct while using social media or social networking websites with actions that range from a letter of reprimand to the revocation of a license.” Moreover, I take it that the reprimands won’t just be the board expressing its own views; rather, the discriminatory-lanaguage-based reprimands can lead to greater punishment in the future for future offenses.

This strikes me as a serious lack of attention to First Amendment rights. Though doctor speech to their patients is subject to greater constraints than speech to the public (that’s the mysterious professional-client speech exception), this involves doctor speech to the public, expressing moral and empirical judgments — whether wrong or right — about homosexuality. Doctors, I think, have to be as free as anyone else to express such views without the fear of being legally barred from practicing their professions (or from being investigated with an eye towards disciplinary action that could eventually lead to such a legal bar).

And of course if such discipline is contemplated, there’s no reason to think it will be limited to speech on Facebook, or speech that mentions a particular patient (even without any identification of the patient). The rubric here is “discriminatory speech online,” and “discriminatory language” — that would include public campaigning against same-sex marriage that criticizes homosexuality, expressions of views that gays are committing grave sins through their behavior, and so on. Nor is it in principle limited to doctors; see this accountant discipline case, though the issue there was less direct. In theory, under this argument “discriminatory speech” of all sorts by all sorts of professionals could lead to investigation, discipline, and eventually possible license suspension or revocation. Again, a serious First Amendment problem, it seems to me.

UPDATE: Just to give a comparison, imagine that a psychiatrist posts on his Facebook page,

“I saw this fundamentalist Christian patient who came in complaining of depression because his son is gay, and he kept talking to me about how the son is going to burn in Hell and how much that upsets him. I really don’t feel any compassion for these people — they don’t deserve antidepressants, they just need to abandon their medieval so-called ‘morality.’”

Should the person be investigated, on the theory that maybe he’s actually refusing to treat Christian patients? Or should he be free to express his harsh criticisms of fundamentalist Christianity, and his view that we shouldn’t be compassionate for the problems that purportedly stem from such views (at least absence of evidence that he’s actually violating the antidiscrimination rules, as opposed to just publicly speaking out against a certain group)? I should think that the psychiatrist’s First Amendment rights should protect him here.