Brennan and Jaworski’s Markets Without Limits defends the moral principle, “If you may do it for free, you may do it for money.” This is obviously controversial for sex, organs, and adoption. But speech? Doesn’t the First Amendment ensure freedom of speech – including the freedom to make money with speech? The U.S. legal system’s answer, surprisingly, is no. Timothy Sandefur explains in the best piece I’ve read on Constitutional law since… well, I actually can’t remember a better piece on Constitutional law. Here’s Sandefur, in the latest issue of Regulation:
The Supreme Court has also made clear that one of the bedrock protections afforded by the First Amendment is its longstanding prohibition on “prior restraints”… Courts presume that any law requiring such prior approval–whether it be a licensing requirement to publish a newspaper, or even a zoning permit to operate a strip club–is unconstitutional until proven otherwise. The government bears the burden of showing that any such restriction is truly necessary to serve the public good. This is the legal test called “strict scrutiny.” Yet one class of speech has been almost entirely ignored by the courts: speech by professionals engaged in their business. Although the courts have often discussed the protections afforded “commercial speech”–i.e., advertising–it has virtually never addressed the degree to which the Constitution protects the rights of doctors, lawyers, stock brokers, and others to speak as part of their jobs–even when their occupations consist entirely of speaking and writing. As a result, federal, state, and local governments today impose an array of limits on those professionals’ freedom–limits that would never be tolerated if applied to any other kind of expression.
The heart of modern doctrine:
Most courts today hold that while the government may not limit speech by ordinary citizens except in the rarest circumstances, it has virtually limitless power to censor professionals speaking in their field, without regard for the professionals’ knowledge and training. While a state could not pass a law barring a layman from telling his friend to take an aspirin for his headache, it could, if it wished, impose a criminal punishment on a doctor who advises the same person to take the same pill.
“Talking professions” are especially vulnerable:
Under professional speech theory, even businesses that consist entirely of speech have been deemed “conduct” and stripped of constitutional protection. The most noteworthy example is psychology, a business that–unlike psychiatry– involves no medicines, but only speech and other forms of communicative therapies. Although no state licensed psychologists until the 1940s, every state today requires them to get some form of government certificate before practicing the profession. When a group of therapists challenged California’s licensing law in 2000, the Ninth Circuit upheld it, citing Jackson’s and White’s opinions for the proposition that psychotherapy is conduct, “not speech.” Thus, “although some speech interest may be implicated,” California’s licensing requirement was “a valid exercise of its police power to protect the health and safety of its citizens and does not offend the First Amendment.”
Yet the effort to distinguish speech from conduct breaks down when one examines the legal definition of psychology. California defines psychology as the use of “psychological principles, methods, and procedures of understanding, predicting, and influencing behavior,” which include the “prevention, treatment, and amelioration of psychological problems and emotional and mental disorders,” as well as any effort to help a person “modify feelings, conditions, attitudes,” or change “behavior[s] which are emotionally, intellectually, or socially ineffectual or maladjustive,” or even just to “acquire greater human effectiveness.” Whatever that last phrase might mean, it is clear that this is a list of different types of speech. If applied literally, the law would forbid an incalculable number of personal interactions: talking with a friend about her feelings, texting a classmate about how to get a date, taking one’s sister to dinner to lessen her job-related stress, or even praying together about a moral dilemma.
Now it gets weird and fun:
Sensing this problem, California lawmakers sought to exempt such acts by adding a list of exceptions: clergymen, hypnotists, social workers, and even dentists, optometrists, and lawyers–who receive no training in psychology whatsoever–need not get licenses. Also exempt is anyone who engages in psychology for free.
These exceptions are common sense, but they also contradict the case for requiring licensure. If, as the Ninth Circuit held, “the adverse effects of incompetent psychotherapy could include sexual activity between a client and therapist, deteriorating mental health, family, job, and relationships of the patient, and even suicide,” there is no sense in excusing priests, dentists, or attorneys from the requirement, let alone exempting anyone who engages in psychology for free. Bad advice or a lack of sympathy from an acquaintance is just as likely to cause the same harms. Had the court regarded the psychologist licensing requirement as a restriction on speech, this extraordinarily broad and self-contradictory prohibition would have been ruled unconstitutional. But because psychologists offer personalized advice–or, in Justice White’s words, take patients’ affairs personally in hand–the court regarded it as a restriction on conduct, subject only to the
lax “rational basis” test.
The law’s not just silly; it fights the future:
These confusions are not just puzzles for constitutional lawyers: they present a set of increasingly difficult problems for one of the fastest-growing sectors of the American economy: telecommunications- based businesses. Blogs and smart-phone apps often convey information for a fee, helping consumers get information and advice, and to buy and sell products or services. These activities consist entirely of communication, but government often classifies them as conduct, subject to restriction. Nowhere is this more obvious than in the growing field of “telemedicine.” Telemedicine–the use of communications technology to link patients with doctors or computer programs that can assess their conditions and prescribe treatment–holds great promise for patients who find it difficult to meet in person with a doctor or cannot afford frequent hospital visits. Some new smart phone apps enable patients to contact doctors across the country to ask questions by text message in real time. Other apps help diabetics track their glucose levels. Still others tell users when to apply more sunscreen. Telemedicine goes beyond merely providing information, like books or Google searches: patients can have their specific needs assessed and get personalized advice. This often runs afoul of state laws forbidding the unlicensed practice of medicine.
No state is more rigidly opposed to telemedical innovations than Texas, which according to the 2015 report of the American Telemedicine Association imposes the nation’s most stringent limits on remote medical practice. Notwithstanding the fact that the state has a doctor shortage–27 of its counties have no primary-care physicians at all, and 16 counties have only one–Texas medical regulators imposed a rule in April that prohibits
doctors from establishing a doctor-patient relationship by telephone, email, or text-message, meaning that a doctor must examine a patient in person before providing advice or prescriptions– thereby eliminating the great advantage of telemedicine.
Many of the state’s doctors objected to the rule, echoing the words of retired U.S. senator (and doctor) Bill Frist, who asked in a March 2015 Forbes column why a doctor who has visited with a patient for 15 minutes is automatically considered qualified, while a doctor with a long-lasting telephonic relationship with a patient is not. “The idea of separating the visit and the exam from care is a fundamental reversal of what we learn,” Frist wrote. “But we must remember that telemedicine is not the practice of medicine, but a tool for the delivery of care. And it’s a tool with a proven track record and support in the medical community.” But as is often the case with licensing regulations, the rules are often used, not to protect patients, but to protect doctors from having to compete economically.
Thank God professing somehow counts as speech rather than conduct! Otherwise I’d be in big trouble.