Professional speech

The First Amendment to the U.S. Constitution protects the freedom of speech, which typically prevents the government from restricting speech based on its content. At the same time, occupational regulations often restrict who may provide certain types of advice, such as legal or medical advice. The degree to which these laws implicate the First Amendment has long been a source of debate among legal commentators.

Despite the growth of professional regulations starting in the first half of the 20th century, the U.S. Supreme Court has only confronted these issues comparatively recently. Until 2018, the most significant guidance from the Court came from two concurring opinions by Justice Robert Jackson and Justice Byron White. These opinions suggested that there was a constitutionally significant distinction between speech to the public at large and speech that occurs when there is a "personal nexus" between the speaker and the listener, such as occurs in a professional/client relationship.{{Cite web |title=Lowe v. SEC, 472 U.S. 181 (1985) |url=https://supreme.justia.com/cases/federal/us/472/181/ |access-date=2025-04-24 |website=Justia Law |language=en}}{{Cite web |title=Thomas v. Collins, 323 U.S. 516 (1945) |url=https://supreme.justia.com/cases/federal/us/323/516/ |access-date=2025-04-24 |website=Justia Law |language=en}}

Drawing on these opinions, a number of lower federal courts adopted what came to be known as the "professional speech doctrine." Under this doctrine, speech that occurred between professional and their clients was treated as regulable professional conduct, rather than protected speech.{{Cite web |title=KING v. GOVERNOR OF THE S {{!}} 767 F.3d... {{!}} 20140911099 {{!}} Leagle.com |url=https://www.leagle.com/decision/infco20140911099 |access-date=2025-04-24 |website=Leagle |language=en}}{{Cite web |title=PICKUP v. BROWN {{!}} 740 F.3d 1208 (2013) {{!}} 20140129128 {{!}} Leagle.com |url=https://www.leagle.com/decision/infco20140129128 |access-date=2025-04-24 |website=Leagle |language=en}}{{Cite web |title=MOORE-KING v. COUNTY OF C {{!}} 708 F.3d... {{!}} 20130226120 {{!}} Leagle.com |url=https://www.leagle.com/decision/infco20130226120 |access-date=2025-04-24 |website=Leagle |language=en}}

The Supreme Court's decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) marked a turning point in the Court's analysis of professional speech. There, California had enacted a law requiring licensed crisis pregnancy centers to provide specific information about state-sponsored abortion services. The Supreme Court struck down the law, holding that the state could not compel speech in this manner.{{cn|date=April 2025}}

In doing so, the Court rejected the notion of professional speech as a distinct category warranting lesser protection under the First Amendment, signaling a shift toward stronger protection of professionals' rights to free speech. Writing for the majority, Justice Clarence Thomas stated that the idea of a "professional speech" doctrine had no precedent in the Court's jurisprudence and that professionals should not be subject to heightened regulation of their speech simply because they were offering advice in a professional capacity.{{cn|date=April 2025}}

Besides NIFLA, the Supreme Court has issued several other decisions that touch on important aspects of professional or occupational speech. These include:

In Zauderer, the Supreme Court considered the regulation of a lawyer's advertising practices. The Court held that "the State's interests in preventing deception of consumers" justified certain disclosure requirements imposed on legal advertisements. The Court reasoned that because the speech at issue occurred in the context of commercial advertising by a professional, it warranted a lower level of scrutiny than other forms of protected speech. The Court in NIFLA identified Zauderer as one of only two contexts in which it has afforded reduced First Amendment to speech by "professionals."

In Casey, the Court upheld a Pennsylvania law requiring physicians to provide specific information to patients seeking abortions. Although the case was primarily focused on reproductive rights, it is significant for professional speech because it affirmed that the government could require certain speech by professionals as part of its regulation of non-communicative medical practices, such as surgical procedures. The Court in NIFLA identified this sort of incidental effect on speech associated with the regulation of professional conduct as the only other context in which it has afforded reduced First Amendment protection to speech by "professionals."

Though not directly addressing professional speech, Holder is relevant because it dealt with the regulation of expert advice and assistance provided by professionals to foreign organizations. The federal government in Holder argued that this expert advice was not protected speech but the unprotected conduct of providing material support to terrorist organizations. The Supreme Court rejected that argument, holding that Court even when a law is generally aimed at conduct, it will still be subject to First Amendment scrutiny when a specific application of the law is triggered by speech communicating a message. Some lower federal courts have pointed to Holder to establish that the government may not escape First Amendment scrutiny by recasting a prohibition on speech as a regulation on the practice of a profession.{{Cite web |title=Otto v. City of Boca Raton, No. 19-10604 (11th Cir. 2020) |url=https://law.justia.com/cases/federal/appellate-courts/ca11/19-10604/19-10604-2020-11-20.html |access-date=2025-04-24 |website=Justia Law |language=en}}

The legal status of professional/occupational speech continues to evolve, particularly in the realms of medical and legal advice.

States often regulate what doctors can say in specific contexts, such as abortion or end-of-life care, which raises questions about how far the government can go in compelling or restricting speech within a professional relationship. In one notable case, for example, the Eleventh Circuit in 2017 invalidated a Florida law that restricted the ability of doctors to ask their patients questions about gun ownership.{{Cite web |title=Wollschlaeger v. Governor of the State of Florida, No. 12-14009 (11th Cir. 2017) |url=https://law.justia.com/cases/federal/appellate-courts/ca11/12-14009/12-14009-2017-02-16.html |access-date=2025-04-24 |website=Justia Law |language=en}}

Increasingly, courts are confronting questions about whether states may restrict speech on certain subjects only to licensed speakers. In 2022, for example, a federal district court in New York granted a preliminary injunction to Upsolve, Inc., to allow unlicensed volunteers to provide limited legal advice to New Yorkers facing debt-collection actions without risking prosecution for the unauthorized practice of law.{{Cite web |title=Upsolve, Inc. et al v. James, No. 1:2022cv00627 - Document 68 (S.D.N.Y. 2022) |url=https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv00627/573762/68/ |access-date=2025-04-24 |website=Justia Law |language=en}} Similarly, in 2023, a federal district court in Indiana held that the First Amendment prohibited the state from restricting the provision of end-of-life advice to state-licensed funeral directors and enjoined the state from enforcing the law against an unlicensed "death doula."{{Cite web |title=Richwine et al v. Matuszak et al |url=https://dockets.justia.com/docket/indiana/inndce/1:2023cv00370/116036 |access-date=2025-04-24 |website=Justia Dockets & Filings |language=en}} Other courts have disagreed, however. For example, in 2022 the Eleventh Circuit held that the state of Florida could permissibly limit the provision of certain individualized dietary advice only to state-licensed dieticians.{{Cite web |last=Judge |first=Luck, Circuit |title=DEL CASTILLO v. SECRETARY {{!}} 26 F.4th... {{!}} 20220222065 {{!}} Leagle.com |url=https://www.leagle.com/decision/infco20220222065 |access-date=2025-04-24 |website=Leagle |language=en}}

"Conversion therapy" bans, which prevent licensed therapists from providing certain treatments aimed at changing a person's sexual orientation, have raised First Amendment challenges regarding whether states can restrict the content of professional speech without infringing on free speech rights. The Ninth Circuit and Eleventh Circuit have reached differing conclusions on this issue, with the Ninth Circuit holding that talk therapy is a form of medical conduct and the Eleventh Circuit holding that it is a form of fully protected speech.{{Cite web |title=BRIAN TINGLEY V. ROBERT FERGUSON, ET AL, No. 21-35815 (9th Cir. 2023) |url=https://law.justia.com/cases/federal/appellate-courts/ca9/21-35815/21-35815-2023-01-23.html |access-date=2025-04-24 |website=Justia Law |language=en}}

With the rise of telemedicine, legal services provided online, and other digital platforms, the regulation of professional speech in these non-traditional settings presents new challenges for courts and regulators. One area of particular significance is professional advice across jurisdictions. In 2023, for example, the Second Circuit held that New York could permissibly require therapists licensed outside the state to obtain a New York license to provide talk therapy to New York residents.{{Cite web |title=Brokamp v. James, No. 21-3050 (2d Cir. 2023) |url=https://law.justia.com/cases/federal/appellate-courts/ca2/21-3050/21-3050-2023-04-27.html |access-date=2025-04-24 |website=Justia Law |language=en}}

Institute for Justice

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{{US1stAmendment Freedom of Speech Clause Supreme Court case law|state=collapsed}}

Category:American legal terminology