Can the government ban medical advice? SCOTUS may decide
The First Amendment right to speak includes the oft-forgotten right to listen. Few know it, but this right to receive information hides in the shadow of a controversial case now before the Supreme Court called Chiles v. Salazar. How the Court resolves Chiles will affect the rights of millions of patients to seek and receive medical advice.
In Chiles, which will be argued at the Supreme Court this fall, therapist Kaley Chiles challenged a Colorado law that bans her from using talk therapy with minors “that attempts or purports to change an individual’s sexual orientation or gender identity.” The courts below rejected Ms. Chiles’s argument that the law violates the First Amendment.
Tucked inside this culture-war bombshell is an issue that will affect millions of patients nationwide: does a patient have a First Amendment right to seek out medical advice, and do laws restricting practices like telehealth imperil that right? My employer, Pacific Legal Foundation, wrote an amicus brief in Chiles to urge the Supreme Court to recognize patients’ rights to seek out healthcare information.
Chiles presents an arcane quirk in First Amendment law that threatens patients’ right to receive medical advice. In rejecting Ms. Chiles’s First Amendment argument, the court of appeals held that her therapy—which consists of talking with clients—is not “speech” at all but rather “conduct” and thus outside the reach of the First Amendment.
If you haven’t had your mind twisted into knots by law school, the idea that speech is not speech may not make sense to you. And that is because it does not make sense. Yet courts have often used this subtle linguistic illusion to sidestep First Amendment claims by holding that the speech being censored is not in fact speech at all.
Most often, this “speech is conduct” alchemy bubbles up in cases involving the regulation of speech between professionals and their clients, in contexts such as therapy and medicine. This bit of lingual legerdemain can have serious consequences for the patients denied access to advice offered by medical professionals.
Consider, for example, patient access to telehealth. To a greater or lesser extent, all states regulate remote visits with healthcare professionals. Such regulations, when taken too far, can endanger patient welfare or even survival.
Take Jun Abell, a baby boy from New York with a rare brain tumor. Telehealth saved Jun’s life. Upon diagnosis, Jun’s dad called every pediatric oncologist in the country he could find. Chemotherapy and multiple surgeries failed to kill the cancer, but then Jun’s parents found Dr. Shannon MacDonald, who works in Massachusetts. Dr. MacDonald specializes in proton therapy, an innovative treatment unavailable at the time in New York.
Jun’s parents consulted with Dr. MacDonald remotely via telehealth, and the family decided to start treatment under her care in Massachusetts. Jun is alive today thanks to that telehealth visit. But Jun’s fight is not over. He needs monitoring for the rest of his life. But he now lives in New Jersey, a state that forbids virtual doctor-patient visits with out-of-state practitioners. Thus, New Jersey law impedes Jun’s relationship with the one physician who knows best how to serve his needs.
Jun is not alone. People who suffer from rare diseases often must seek care outside their own state or region because few specialists are familiar with the best treatment options for these conditions. Without telehealth options, they will have to face the burdens of regular travel or forego essential care.
Jun’s family and Dr. MacDonald are now both plaintiffs represented by Pacific Legal Foundation in a lawsuit challenging New Jersey’s telehealth censorship. Pacific Legal Foundation has a similar case in California, where we represent another patient who suffers from a rare disease and must seek remote treatment out of state. The trial courts rejected both First Amendment claims, which are now on appeal.
Like in Chiles, the California court ruled that a telehealth consultation, even though it only involves speech, is “treatment” and therefore “conduct” rather than protected speech. Both cases may stand or fall on whether the Supreme Court in Chiles accepts or rejects this mystical “speech-conduct” alchemy.
The speech-conduct fiction relies on the idea that speech by professionals, such as doctors or therapists, exists on a sliding scale. At one end is public dialogue, which the First Amendment protects fully. On the other end of the scale is speech in the context of “treatment,” which the lower court in Chiles says merits no First Amendment protection. This twisted logic calls to mind the line from George Orwell’s Animal Farm: “All animals are equal, but some animals are more equal than others.” Likewise here, all speech is free speech, but some speech is more free than other speech.
But the folly behind this speech-conduct scale becomes even more apparent when viewed from the perspective of the listener. Suppose Dr. Shannon MacDonald, who saved Jun’s life with her proton therapy treatment, presented her research at a medical conference. This would be a fully protected “public dialogue” that the government cannot censor. But when she meets with Jun and his parents via telehealth to discuss his health needs, she is engaged in unprotected conduct that the government can regulate or outright ban.
Under the speech-is-conduct reasoning, the strength of the listeners’ interests are highest when the First Amendment protection is weakest. The audience at Dr. MacDonald’s presentation certainly has a right to hear what she has to say, but the listener’s interest is abstract and generalized.
Jun and his parents, on the other hand, have a far more concrete and poignant interest in Dr. MacDonald’s speech because the speech is specifically targeted at Jun’s needs, Jun’s family has sought her out, and Jun’s very survival may depend on what Dr. MacDonald has to say.
The result is that listeners who have only a vague and generic interest at stake enjoy First Amendment protection, while listeners with a deeply personal and urgent interest enjoy little to none. Under the speech-conduct alchemy, the First Amendment protects least the speech that affects listeners’ rights the most.
When the Supreme Court decides Chiles, the papers and the pundits will all zero in on Kaley Chiles’s controversial therapy. What many will miss is the significance this case will have for the millions of patients who rely on technology such as telehealth for their well-being and survival. We have a right to seek out whatever information we can to care for ourselves and our loved ones. The speech-conduct dichotomy in Chiles threatens that right. When the Supreme Court decides the case, it should hold that speech is, in fact, speech.
