When can government deprive professionals of their right to speak?

July 29, 2015 | By TIMOTHY SANDEFUR

Dr. Ronald Hines is a Texas veterinarian who helps people over the telephone. For years, he’s offered his advice to pet owners for a low, flat rate—a convenient alternative for people who might otherwise not be able to visit a vet’s office. But it turns out that’s illegal: Texas law forbids vets from offering advice without first physically examining the animal. And even though this rule forbids Dr. Hines from communicating information to people, the Fifth Circuit Court of Appeals ruled that the law is not even subject to the stringent constitutional standards that apply to restrictions on freedom of speech. Instead, Dr. Hines’s communication is only an “activity,” not speech, and the First Amendment is therefore irrelevant.

Welcome to the bizarro world of “professional speech doctrine,” a legal theory that gives government greater power to restrict the free speech of licensed professionals than it has to restrict, say, nude dancing or cross-burning. Although courts are usually vigilant to protect free speech—applying the rigorous legal test of “strict scrutiny” to any limit on expression—when it comes to “professional speech,” they only apply the relaxed, government-always-wins standard of “rational basis.” This means that doctors, lawyers, stock brokers, or real estate agents, have practically no constitutional right to communicate with their clients. An unlicensed layperson has the full freedom to, say, recommend that a friend take an aspirin or her headache—but if a doctor says the same thing to the same friend, suddenly the First Amendment doesn’t apply!

Even more remarkably, this “professional speech” doctrine has never been endorsed by the U.S. Supreme Court. In fact, the Court has never even used the term. Instead, lower courts have developed the theory, based only on Justice Byron White’s 30-year-old concurring opinion in Lowe v. SEC and Justice Robert Jackson’s 1945 concurring opinion in Thomas v. Collins. Even though neither of these has the force of law, lower federal courts have interpreted them to mean that when the government chooses to restrict the free speech rights of doctors and other professionals, those restrictions are less constitutionally significant than when local officials forbid a nudie bar from opening down the street.

Not surprisingly, the Supreme Court’s failure to address this issue has led to much confusion.  Some courts hold that professional speech is subject to at least some First Amendment considerations, while others have held that it is not. Some courts have issued opinions that conflict with opinions from the same court. And some courts have said that the speech of educated, trained professionals should receive greater protection, not less. Even more remarkably, Justice White’s Lowe opinion and Justice Jackson’s Collins opinion actually conflict with each other: White says that when professionals speak, that’s only “conduct” subject to few First Amendment protections—while Jackson says that when professionals speak, their conduct becomes speech subject to greater protection. Nobody has even explained how courts should identify “professional speech.” Surely not everything said by a doctor qualifies.

That’s why Pacific Legal Foundation today filed this brief with the Supreme Court urging the justices to review Dr. Hines’s case. Not only does the “professional speech” doctrine allow states to short-circuit the professional judgment of licensed doctors, but it bars innovative new “telemedicine” technology that might enable doctors to provide medical services to people who otherwise are unable to get to a doctor’s office. The American Telemedicine Association’s 2015 report explains that state regulations on the practice of medicine often prohibit doctors from serving patients over the telephone or the internet—and in some cases even forbid doctors from consulting with doctors in other states! That report ranks Texas’ laws among the least innovative.

Such rules stifle the development of promising new alternatives in the medical field. In any other context, those rules would be subject to full First Amendment review. Constitutional protections should not be lessened just because the person speaking happens to be a licensed professional.