Little-discussed free speech question:

I'm adding a new section on "The Unsolved Problems" to my First Amendment textbook supplement. (Eventually, if there's a second edition, it will be worked into that.) Most of the textbook focuses on what the Supreme Court has said about various questions, such as the constitutional protection offered advocacy of violence, false statements of fact, sexually themed speech, and so on. But on some important questions, the Supreme Court has said very little; and these, I think, can be particularly interesting subjects for in-class policy discussion, precisely because there's no binding precedent.

A couple of the topics are ones that I've blogged about extensively — hostile environment harassment law and crime-facilitating speech. But I thought I'd mention here another one, which is actually very important but which has gotten much less attention than it deserves: professional-client speech.

I'm not writing on the subject, so I'm not soliciting suggestions. (There have been some interesting pieces already written on it, including by my fellow Kozinski clerk Robert Kry, though many fewer than I would have expected.) I probably won't even have time to discuss this more on the blog. Still, I thought some readers would find it interesting, so I'll quote my summary of the question, and the problem that I recommend people use to discuss this:

2. Professional-Client Speech

a. The Issue

Many professional-client relationships — lawyer-client, psychotherapist-patient, accountant-client, even often doctor-patient — mostly consist of speech. Sometimes, of course, they involve physical conduct (surgery) or the submission of statements to the government (a lawyer arguing in court). But often they consist solely of two people talking with each other, one asking questions and the other giving advice.

And yet this communication is often subject to speech restrictions and speech compulsions that would generally be forbidden in other contexts. For instance:

  1. Many professionals may not advise clients without a government license — something that would be a prior restraint if applied to speech by people other than professionals.

  2. The government may impose liability on professionals for negligent advice, not just for negligently false statements of fact, but also for negligent predictions, which would otherwise be generally seen as constitutionally protected opinions.

  3. The government may bar professionals from revealing client confidences. This isn't just an implied contract term (which might be defensible under Cohen v. Cowles Media Co.), because under some such rules the obligation can't be disclaimed even if the professional expressly states to the client that he doesn't promise confidentiality.

  4. Some professionals, including lawyers and psychotherapists, are barred from having sexual relations with their clients — and it is the professionals' communicating with the clients that triggers the prohibition. Laws that constrain the sexual choices of authors of advice books, or of movie stars who project an image of trustworthiness, would violate the First Amendment (as well as perhaps the sexual autonomy right recognized by Lawrence v. Texas); such laws involve a burden placed on people because of their speech. Yet similar burdens are imposed on some professionals because of their speech.

  5. A requirement that doctors give patients certain state-provided information before getting the patient's consent to an abortion was upheld in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality), with just the following discussion:

    All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement thatthe physician provide the information mandated by the State here.

Such restrictions and compulsions may in fact be properly upheld: There may be something in a professional-client relationship that would justify such extra regulation. But the Court has never explained (1) exactly what speech restrictions and speech compulsions would be allowed in such a situation, or (2) exactly when this reduced protection would be triggered. In Lowe v. SEC, 472 U.S. 181 (1985), a three-Justice concurrence (written by Justice White and joined by Chief Justice Burger and Justice Rehnquist) suggested this rule (paragraph break added):

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech, or of the press."

The majority, however, didn't find it necessary to speak to this question. See also Thomas v. Collins, 323 U.S. 516 (1945) (holding that union organizing couldn't be restricted on the grounds that such a restriction was just a regulation of the "profession" of union organizer).

b. Problem: Counseling That Advocates Race-Based Decisions

A state has long required all marriage and family counselors — defined as "any person who offers advice related to marriage and family matters in exchange for money" — to be licensed, and to follow rules prescribed by the state's Marriage and Family Counseling Licensing Board.

The Board learns that some marriage and family counselors are advising clients not to enter into interracial marriages or interracial adoptions. Some are even advising clients who are in interracial marriages that the interracial nature of the marriage may be a source of the problem, and are suggesting in some instances that divorce may therefore be the only solution.

The Board believes that such advice is offensive, and harmful to the patients. It therefore enacts the following rule: "Any marriage and family counselor who uses the patients' race, or the race of the patients' spouse, children, or prospective adoptive children or stepchildren, as part of the basis for the counselor's recommendation, shall have his or her license suspended for six months."

Based on this rule, Mary Moe, a counselor who had engaged in such advice, has her license suspended. Her former patients, Laura Loh and Richard Roe, who divorced each other partly on Moe's advice (Loh is East Asian and Roe is white), but who have since reconciled, sue Moe for emotional distress caused by her advice, which they claim constituted malpractice. The judge awards them $100,000 in a bench trial. One of the judge's findings of fact is that Moe's advice was unreasonable by the standards of the profession, and the sole evidence that the judge relies on is the Board's rule.

What should be the proper analysis be under the First Amendment?

An Odd Complaint:

The AP reports (thanks to The New Editor for the pointer):

Dr. Terry Bennett says he tells obese patients their weight is bad for their health and their love lives, but the lecture drove one patient to complain to the state.

"I told a fat woman she was obese," Bennett says. "I tried to get her attention. I told her, 'You need to get on a program, join a group of like-minded people and peel off the weight that is going to kill you.'" . . .

[The woman's] complaint, filed about a year ago, was initially investigated by a panel of the New Hampshire Board of Medicine, which recommended that Bennett be sent a confidential letter of concern. The board rejected the suggestion in December and asked the attorney general's office to investigate. . . .

"Physicians have to be professional with patients and remember everyone is an individual. You should not be inflammatory or degrading to anyone," said board member Kevin Costin. . . .

It's hard from the article to figure out exactly what the woman is complaining about; it may well be that Dr. Bennett said something harsher than what he's quoted as saying. (The complaints and other materials are apparently confidential, though if anyone has any more data on this, I'd love to hear it.) Still, if the account is correct, it's pretty troubling. And, more broadly, do we really need government regulation to keep doctors from being mean to their patients? (For a sense of the First Amendment issues raised by such regulations, by the way, see this post.)

UPDATE: Another article reports that Bennett "has 'an obesity lecture for women' that is a stark litany designed to get the attention of obese female patients. He said he tells obese women they most likely will outlive an obese spouse and will have a difficult time establishing a new relationship because studies show most males are completely negative to obese women." I can see how that would get some people upset, though I also see why the doctor might figure that this is the one way to get to people who haven't listened to his other advice. And it still seems to me that this isn't something the state medical board needs to be regulating.

Proposed Restriction of Doctors' Speech Related to Guns:

The Virginian-Pilot reports:

A pediatrician who asks a child's parent about firearms in their home could lose his or her license or be disciplined under legislation being considered by a [Virginia state] Senate committee today.

The bill would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them....

The legislation is opposed by The Virginia Chapter of the American Academy of Pediatrics because it blocks a common practice by medical professionals to inquire about gun ownership and safety when they go over a safety checklist with parents during a child's regular checkups from birth to puberty....

As I've noted before, the constitutional status of professional-client speech is unsettled. It seems pretty clear that the government has some extra power to regulate such speech, but I doubt that this power is or should be unlimited.

And this restriction (which I regret to say is supported by the NRA) seems to me to be well outside the proper limits of the government's power here. The restriction isn't limited to speech that is misleading or dangerous to patients; perfectly accurate and reasonable advice about preventing gun injury is covered alongside exaggeration and hysteria. Nor is this a requirement that doctors say extra things that the government thinks patients ought to know (such speech compulsions are generally forbidden, but may be constitutional when imposed on professional-client speech); this limits the information that doctors can give patients, rather than adding to such information.

The NRA argues that doctors' advice about guns in "intrusive" and "unnecessary," but it seems to me that the government needs much more than such beliefs to suppress speech. Speech can't be banned just because the legislature believes it "unnecessary," and absent unusual circumstances the sensible response by patients outraged by "intrusive" statements is to switch to a doctor they like better (or perhaps to warn their new doctor that they don't want gun safety advice). Timothy Wheeler, at the Claremont's Institute "Local Liberty" blog, defends the law as aimed at preventing "boundary violations": "With very few exceptions, a doctor's probing of a patient about guns in the home is a politically motivated question. That makes it an ethical boundary violation, which is unprofessional conduct. Doctors are forbidden to misuse the trust of their patients to advance a political agenda such as gun control." There's no doubt that many medical organizations have taken political stands on gun control; the American Academy of Pediatrics, for instance, urges that handguns be banned. And it's certainly quite possible that some doctors' political prejudices lead them to give unsound advice, for instance exaggerating the risks to health of keeping firearms in the home, or ignoring the possible benefits (including to the owners' health) of keeping firearms in the home.

But "liberty," "local" or otherwise, includes the liberty to communicate views that are influenced by one's ideology, without the government's banning such speech on the theory that it is "unprofessional." And it likewise includes doctors' liberty to convey their professional views on the health threats that various behaviors — bicycling, playing sports, engaging in unsafe sex, storing guns in certain ways — pose.

I should note that the government has much more authority to control what its employees or contractors say (see, e.g., Rust v. Sullivan); but this law would apply to all doctors, not just those hired or funded by the government.

The bill passed in the Virginia House by 88-11, though it was apparently blocked in the Senate committee by a 6-9 vote. Thanks to Glenn Wright Bowen for the pointer.

Doctors and Guns:

Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:

A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:... 22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.
The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.

First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.

Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.

The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech isues, outside the context of advertising, regading professional regulation.

Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.

The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.

I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.

Let me address some of the arguments which commenters offered regarding the bill.

Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.

The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.

However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.

One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)

Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.

Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disamament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could.

Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and would be less safe in their homes as a result. There is sufficient evidence for a reasonable legislator to conclude that physician anti-gun counseling is junk science at its worst. (Click here for one example.) Reasonable legislators can differ, of course; I am just pointing out what a reasonable legislator could vote for the bill.

Another issue raised by commenters was gun registration. Again, in the 1910 model of medical practice, records about patient gun ownership would be widely diffused among many independent physicians. The record-keeping by individual physicians would not amount to a widespread registration system.

In contrast, today there is a very powerful trend towards the centralization of medical data. As some commenters pointed out, the centralizing trends are encouraged by insurance companies, health care corporations, and the government. Physician questioning and about firearms usually takes place in the context of the physician filling out a survey which becomes part of the patient's permanent medical record. There are many circumstances under which health survey data by a physician may be centralized by entities other than the physician. Federal law makes patient records available to law enforcement authorities under some circumstances.

There is no denying the historical facts that in the United States and in other countries, gun registration records have sometimes been used for confiscation. A person who wants strong protection the right to arms would generally favor preventing the accumulation of data which might facilitate gun confiscation, even if the risk of gun confiscation at present is very low.

Putting the confiscation risk aside, registration is, in itself, harmful to the right to arms. Even if there were no possibility of confiscation, constitutionally-sensitive people would oppose the creation of centralized lists regarding any aspect of a person's exercise of her constitutional rights. You shouldn't be put on a government list--or on the list of a big corporation which is heavily funded by the government and whose records are readily subject to government inspection--just because you exercised a constitutional right. That is one reason that Congress in 2003, and in 1986, 1968, and during World War II enacted legislation to block federal gun registration.

Again, I'm not saying that a legislator must be so constitutionally conscientious that she vigilantly blocks every form of gun registration. I'm saying that a reasonable legislator can be so conscientious, just as another legislator could be so conscientious about free speech as to oppose even constitutionally-valid regulation of licensed professionals.

Finally, there is the broader social question of whether legislatures or medical licensing boards should attempt to impose any controls about physician counseling (including counseling in a coercive context) about the exercise of other lifestyle choices. If there is some evidence that religious people are healthier and live longer, is there anything wrong with physicians encouraging patients to go to church? If the weight of evidence suggests that moderate drinking is healthier than abstention, then would we object if a physicians group working with a pro-drinking lobby (just as the American Academy of Pediatrics works with gun prohibition groups) succeeds in encouraging family practitioners to tell their patients "Drink up! It's good for you."

Persons who place free speech values first in their legislative priorities would oppose almost all restrictions on physician counseling--even if the athiest patient in Alabama feels oppressed when her HMO doctor tells her "You ought to start going to church. It's healthy."

I respect the speech-protective values of opponents of the Virginia bill. And I also see that proponents of the bill had good arguments about other constitutional values, public safety, and medical ethics. Perhaps the Virginia medical ethics bill is an occassion where both sides should agree that there were reasonable arguments for both positions.

Doctor-Patient Speech and the First Amendment:

The New Hampshire Board of Medicine has been considering disciplining Dr. Terry Bennett for the following incidents:

  1. "According to the Patient A complaint, in June 2004, the petitioner spoke harshly to Patient A regarding her weight. According to the Notice of Hearing, the petitioner is alleged to have said 'You need to lose weight. Let's face it if your husband were to die tomorrow who would want you. Well, men might want you but not the types that you want to want you. Might even be a black guy.'"

  2. "[I]n 2001, the petitioner suggested to Patient S that rather than live with her extensive brain injuries, she should purchase a gun and commit suicide to end her suffering. The petitioner denies making the comments alleged in the Patient S complaint."

  3. "[T]he petitioner is accused of speaking harshly to Patient D in 2003 regarding her son's hepatitis condition"; no further details are given.

The Board was investigating whether such statements violate N.H. Rev. Stat. Ann. 329:17, VI(d), which bans "unprofessional conduct" by doctors, and N.H. Admin. R. Med. 501.02(h), which says:

A licensee shall adhere to the Principles of Medical Ethics - Current Opinions With Annotations (2004-2005) as adopted by the American Medical Association.

Principle I of the AMA's Principles in turn says:

A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

A New Hampshire trial court has just enjoined the investigation on First Amendment grounds. Professional-client speech, the court held, is protected by the First Amendment; it didn't discuss precisely how protected it is substantively, because it held that the regulation was unconstitutionally vague:

The AMA's Principle I states only in general terms that physicians should treat patients with dignity and respect, but does not define the circumstances under which a physician will be found to have violated that principle. While it would be unreasonable to expect the AMA, or any other body, to define each and every utterance that might create liability, the cited principle provides little guidance as to what speech falls within its ambit. Further, whether a person is treated with dignity and respect are, at least initially, subjective determinations left to the sensitivities of the listener. Such a remarkably subjective standard is certainly not the narrow type of regulation that could comply with constitutional requirements.