Telehealth deserves broader First Amendment protections, new law review article says
Telehealth benefits patients and physicians nationwide. Instead of traveling to a brick-and-mortar office, patients meet their providers online for advice or to determine whether in-person care is necessary—saving both time and money. Yet court opinions and state licensing regimes often restrict patients from accessing necessary medical care via telehealth.
When practitioners speak with patients over the phone or via video chat, two issues arise: whether the patient has the right to listen (which they do) and whether the practitioner is engaging in speech, conduct, or both.
Even if courts disagree on whether telehealth constitutes speech or conduct, the First Amendment should apply either way—especially since patients’ rights to listen are paramount. Whether telehealth is a convenience or life-saving treatment, it expands opportunities for patients to receive care and for providers to earn a living. In this First Amendment context, strict scrutiny should apply.
In a recent law review article, Ethan Blevins, a senior fellow at PLF, argues that “courts have tended to uphold regulations regulating doctor-patient speech on theories that disregard the patient’s right to receive information.”
These restrictions threaten patients who, in many cases, have formed doctor-patient relationships they do not want to forfeit. If a patient or doctor travels or moves out of state, telehealth allows the patient to continue seeing their trusted physician. This is especially critical when a specialist is involved; uprooting to find a new doctor who understands the complexities of an existing condition can be daunting.
Prevalence of Telehealth
Following the COVID-19 pandemic, telehealth restrictions were significantly relaxed to meet the demand for urgent medical intervention. Providers across specialties offered telehealth for initial consultations or routine visits—and many have continued providing services online, particularly for patients facing health or financial hardships.
Yet courts are not affording patients’ right to listen the highest level of constitutional review. In many cases, they rely on the professional-speech doctrine and speech-conduct distinctions, which fail to provide the broadest protections for practitioners and patients.
In the medical context, practitioners’ actions are typically classified as speech or conduct—and labeling them is often complicated. If speech is characterized as conduct, it faces heavier regulation, potentially leaving patients without necessary care.
At its core, telehealth delivers medical care through technology, whether via a screen or over the phone. In his article, Blevins focuses on video chat software. When practitioners meet patients via video, they provide treatment options—constitutionally protected speech.
Patients have the right to hear their doctor’s advice, regardless of whether that speech is labeled conduct.
Medical speech deserves First Amendment protections
Whether courts label a physician’s speech as “treatment” or not, it is still speech meriting First Amendment protection.
The First Amendment “is also about protecting the right to intensely private and personal speech—speech that could save the listener’s life.”
Patients like Jun Abell should not be restricted from life-saving medical care.
Pacific Legal Foundation filed a lawsuit on behalf of Jun’s doctor, Dr. MacDonald, who lives in Massachusetts. When Jun was only 18 months old, he developed an aggressive brain tumor that needed immediate treatment, and his father searched nationwide for the best pediatric oncologist.
After many phone calls, Jun’s parents found Dr. MacDonald, who saved Jun’s life. Jun’s parents relocated to Boston, Massachusetts for a two-month intensive treatment, after which they returned to their home in New York.
As Jun grew up, his family eventually moved to New Jersey—but New Jersey would not allow Jun to see Dr. MacDonald for his periodic check-ins via telehealth.
Regulations on speech and occupational licensing restricted Jun from receiving medical care. Even after intense chemotherapy at such a young age, Jun needs lifelong periodic check-ins to ensure his tumor does not return.
New Jersey’s law forced Jun to choose between life and death.
Current restrictions on telehealth and state-licensing are unconstitutional barriers that severely limit access to quality medical care. In these contexts, the First Amendment should apply: telehealth allows patients to receive medical advice from the specialists they choose, and no state regulation should interfere with that right.
