By Bob Needham
Michigan Law
Just over 25 years ago, Professor Daniel Halberstam proposed a paradigm for analyzing the First Amendment rights of learned professionals communicating with their clients. Supreme Court Justice Ketanji Brown Jackson relied on Halberstam’s framework, and subsequent papers building on it, as the foundation of her dissent in Chiles v. Salazar.
In “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,” Halberstam argued that “professional speech” is constitutionally subject to government regulation. This allows for content and viewpoint regulation, but only to the extent the regulation supports, as opposed to undermines, the speaker’s proper professional role and the client’s reliable access to the professional’s applied expert knowledge.
Chiles v. Salazar involved a constitutional challenge to a Colorado law banning “conversion therapy” for minors. A licensed counselor claimed the law violated the First Amendment because it prescribed the content and viewpoint of constitutionally protected speech. The justices, voting 8-1, agreed, and struck down the law.
Justice Jackson dissented, arguing that the Colorado law in question fell within a state’s ability to regulate medical treatment. She explained that the law did not limit speech generally, but only regulated “professional medical speech.”
In defining the concept of “professional speech,” Jackson relied on Halberstam’s paper, as well as two others that built on it. Jackson further argued—again citing Halberstam’s paper and another that built on it—that a licensed professional is bound by the prevailing standard of care and thus not free to choose the content of her professional speech.
Halberstam—the Eric Stein Collegiate Professor of Law and director of the European Legal Studies Program—recently answered five questions:
1. What was the core argument in your paper that Justice Jackson cited?
My paper exposed and addressed the fact that the Supreme Court had not developed a proper jurisprudence for professional speech. Stray remarks here and there in various cases mentioned professionals without much doctrinal consistency, let alone conceptual coherence or organizing principle.
I argued that the First Amendment applies differently to professional speech as compared to ordinary speakers. Black-letter First Amendment law roughly says that if you’re standing on the street corner, the government cannot prohibit you from saying something because of disagreement with what you’re saying. My claim is that this basic principle doesn’t—or at least shouldn’t
—control in the same way for professional speech.
I defined “professional speech” as speech uttered by professionals in their professional capacity to their client. A doctor providing a diagnosis and treatment recommendation to a patient in the exam room is a classic example. A lawyer advising their client is another.
Within the professional /client relationship, I argued, the government rightly can and does regulate what professionals say. Just think of a malpractice suit against a physician for providing a patently false diagnosis to their patient with disastrous consequences. Or think of the more basic prohibition on practicing medicine or law without a license—and the related requirement that aspiring professionals must pass a licensing exam in which they are judged on their viewpoint on a host of questions.
These all involve the regulation of professional speech. Indeed, once you think about it, regulating professional speech is essential. If doctors (or lawyers) were free to say whatever they pleased to their patients (or clients), no matter the professional’s training or truthfulness, professions and their important role in society as sources of applied expert wisdom and learned practical judgment would cease to exist.
So the view I presented in the article, and continue to hold, is that in reviewing First Amendment challenges to the regulation of “professional speech,” we should not be asking whether the government has interfered with the “free marketplace of ideas.” Instead, we should ask something like this: Does the government’s regulation support or compromise the professional’s communication of expert knowledge, and of applied professional judgment, to the client within the appropriate standards and duties of the profession?
It’s a mouthful, I know. And it’s not an algorithm that will give you an easy answer. But that’s the basic idea.
2. Has the legal landscape on this issue changed since your paper was published in 1999?
In terms of Supreme Court doctrine, unfortunately, not much. We’ve seen additional cases about professional speech, even some landmark judgments, but to this day—as evidenced not least by this latest decision—the Supreme Court has still not embraced a proper jurisprudence for the regulation of professional speech.
Over the years, this fundamental doctrinal failing has only become more treacherous, given that our knowledge-producing institutions, from medicine and public health to academia, are increasingly under politicized attack. We therefore need the court to adopt sensible tools to distinguish legitimate and beneficial government regulation from unconstitutional intrusion.
3. What was at issue in Chiles v. Salazar?
Colorado passed a law prohibiting licensed mental health care providers from engaging in so-called “conversion therapy” for minors. As enacted, the law barred psychiatrists and licensed counselors from attempting to change an individual’s sexual orientation or gender identity, including through talk therapy. (The state legislature adopted the law after hearing testimony and taking into account reports of a professional consensus, expressed by mental health professional organizations, against the practice. The enacted prohibition did not apply to the treatment of adults.)
Chiles—a licensed counselor in Colorado who provides talk therapy to her clients—challenged the prohibition, arguing that it violated her constitutional right to free speech.
The majority agreed with Chiles, holding that the law amounted to unconstitutional viewpoint discrimination. It rejected the notion that professional speech is a separate category of speech “exempt from ordinary First Amendment principles” or subject to “diminished constitutional protection.” The majority emphasized instead that the First Amendment “reflects…a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
4. How did the dissent draw on your piece?
Justice Ketanji Brown Jackson relied on Halberstam’s framework, and subsequent papers building on it, as the foundation of her dissent in a case involving “conversion therapy” for minors.
Justice Jackson’s dissent takes up the professional speech model of that piece in basically saying to the majority, “You’ve got this all wrong.” This case is not about speech in the free marketplace of ideas but about speech as part of the provision of medical treatment.
Justice Jackson first presents her argument in the language of prior case law that allowed restrictions on conduct with “incidental burdens on speech”. Chiles is free to speak her mind and advocate in favor of conversion therapy, Justice Jackson says, but Chiles cannot provide such therapy to a minor child without being subject to professional discipline under Colorado law.
She then turns to the concept of “professional medical speech” to argue that this is consistent with First Amendment principles. Justice Jackson says a medical provider providing treatment in the form of speech to a patient is not free to speak as they wish but constrained by professional duties and reasonable licensing requirements. A state may constitutionally require such learned professionals to provide care in line with professional standards, many of which are “inherently viewpoint based.”
In this case, she concludes, Colorado is doing no more than that, and so the law, in her view, is constitutional.
5. Where do we go from here?
Taking the majority’s approach to its conclusion, the learned professions as sources of expert knowledge would cease to exist. If medical health providers have a First Amendment right to tell a patient anything they please, a doctor’s diagnosis will be worth as much as the latest Reddit thread.
Therefore, the Supreme Court must, in my view, reconsider how it analyzes government restrictions of professional speech. And it must do so in a way that is reasoned, coherent, and reflects a good deal of our settled constitutional practice.
I urge the court to come around to something like the model of “professional speech,” which now has a foothold in the US Reports in Justice Jackson’s dissent.
On this path, mind you, there will still be plenty of room for reasoned debate and disagreement on the outcome in particular cases—including this one. Justice Jackson’s conclusion about who wins in this case does not inexorably flow from the model of “professional speech”—but it would take too long to unpack that here.
The other approach is to keep talking about the marketplace of ideas while upholding some, and striking down other, regulations of what doctors and lawyers may say. That approach will, in my view, systematically lead the court down the wrong path and to the wrong decisions.
Moreover, it will be increasingly hard to shake the feeling that some of the justices uphold or strike down professional regulations based on whether they like them or not.
Michigan Law
Just over 25 years ago, Professor Daniel Halberstam proposed a paradigm for analyzing the First Amendment rights of learned professionals communicating with their clients. Supreme Court Justice Ketanji Brown Jackson relied on Halberstam’s framework, and subsequent papers building on it, as the foundation of her dissent in Chiles v. Salazar.
In “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,” Halberstam argued that “professional speech” is constitutionally subject to government regulation. This allows for content and viewpoint regulation, but only to the extent the regulation supports, as opposed to undermines, the speaker’s proper professional role and the client’s reliable access to the professional’s applied expert knowledge.
Chiles v. Salazar involved a constitutional challenge to a Colorado law banning “conversion therapy” for minors. A licensed counselor claimed the law violated the First Amendment because it prescribed the content and viewpoint of constitutionally protected speech. The justices, voting 8-1, agreed, and struck down the law.
Justice Jackson dissented, arguing that the Colorado law in question fell within a state’s ability to regulate medical treatment. She explained that the law did not limit speech generally, but only regulated “professional medical speech.”
In defining the concept of “professional speech,” Jackson relied on Halberstam’s paper, as well as two others that built on it. Jackson further argued—again citing Halberstam’s paper and another that built on it—that a licensed professional is bound by the prevailing standard of care and thus not free to choose the content of her professional speech.
Halberstam—the Eric Stein Collegiate Professor of Law and director of the European Legal Studies Program—recently answered five questions:
1. What was the core argument in your paper that Justice Jackson cited?
My paper exposed and addressed the fact that the Supreme Court had not developed a proper jurisprudence for professional speech. Stray remarks here and there in various cases mentioned professionals without much doctrinal consistency, let alone conceptual coherence or organizing principle.
I argued that the First Amendment applies differently to professional speech as compared to ordinary speakers. Black-letter First Amendment law roughly says that if you’re standing on the street corner, the government cannot prohibit you from saying something because of disagreement with what you’re saying. My claim is that this basic principle doesn’t—or at least shouldn’t
—control in the same way for professional speech.
I defined “professional speech” as speech uttered by professionals in their professional capacity to their client. A doctor providing a diagnosis and treatment recommendation to a patient in the exam room is a classic example. A lawyer advising their client is another.
Within the professional /client relationship, I argued, the government rightly can and does regulate what professionals say. Just think of a malpractice suit against a physician for providing a patently false diagnosis to their patient with disastrous consequences. Or think of the more basic prohibition on practicing medicine or law without a license—and the related requirement that aspiring professionals must pass a licensing exam in which they are judged on their viewpoint on a host of questions.
These all involve the regulation of professional speech. Indeed, once you think about it, regulating professional speech is essential. If doctors (or lawyers) were free to say whatever they pleased to their patients (or clients), no matter the professional’s training or truthfulness, professions and their important role in society as sources of applied expert wisdom and learned practical judgment would cease to exist.
So the view I presented in the article, and continue to hold, is that in reviewing First Amendment challenges to the regulation of “professional speech,” we should not be asking whether the government has interfered with the “free marketplace of ideas.” Instead, we should ask something like this: Does the government’s regulation support or compromise the professional’s communication of expert knowledge, and of applied professional judgment, to the client within the appropriate standards and duties of the profession?
It’s a mouthful, I know. And it’s not an algorithm that will give you an easy answer. But that’s the basic idea.
2. Has the legal landscape on this issue changed since your paper was published in 1999?
In terms of Supreme Court doctrine, unfortunately, not much. We’ve seen additional cases about professional speech, even some landmark judgments, but to this day—as evidenced not least by this latest decision—the Supreme Court has still not embraced a proper jurisprudence for the regulation of professional speech.
Over the years, this fundamental doctrinal failing has only become more treacherous, given that our knowledge-producing institutions, from medicine and public health to academia, are increasingly under politicized attack. We therefore need the court to adopt sensible tools to distinguish legitimate and beneficial government regulation from unconstitutional intrusion.
3. What was at issue in Chiles v. Salazar?
Colorado passed a law prohibiting licensed mental health care providers from engaging in so-called “conversion therapy” for minors. As enacted, the law barred psychiatrists and licensed counselors from attempting to change an individual’s sexual orientation or gender identity, including through talk therapy. (The state legislature adopted the law after hearing testimony and taking into account reports of a professional consensus, expressed by mental health professional organizations, against the practice. The enacted prohibition did not apply to the treatment of adults.)
Chiles—a licensed counselor in Colorado who provides talk therapy to her clients—challenged the prohibition, arguing that it violated her constitutional right to free speech.
The majority agreed with Chiles, holding that the law amounted to unconstitutional viewpoint discrimination. It rejected the notion that professional speech is a separate category of speech “exempt from ordinary First Amendment principles” or subject to “diminished constitutional protection.” The majority emphasized instead that the First Amendment “reflects…a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
4. How did the dissent draw on your piece?
Justice Ketanji Brown Jackson relied on Halberstam’s framework, and subsequent papers building on it, as the foundation of her dissent in a case involving “conversion therapy” for minors.
Justice Jackson’s dissent takes up the professional speech model of that piece in basically saying to the majority, “You’ve got this all wrong.” This case is not about speech in the free marketplace of ideas but about speech as part of the provision of medical treatment.
Justice Jackson first presents her argument in the language of prior case law that allowed restrictions on conduct with “incidental burdens on speech”. Chiles is free to speak her mind and advocate in favor of conversion therapy, Justice Jackson says, but Chiles cannot provide such therapy to a minor child without being subject to professional discipline under Colorado law.
She then turns to the concept of “professional medical speech” to argue that this is consistent with First Amendment principles. Justice Jackson says a medical provider providing treatment in the form of speech to a patient is not free to speak as they wish but constrained by professional duties and reasonable licensing requirements. A state may constitutionally require such learned professionals to provide care in line with professional standards, many of which are “inherently viewpoint based.”
In this case, she concludes, Colorado is doing no more than that, and so the law, in her view, is constitutional.
5. Where do we go from here?
Taking the majority’s approach to its conclusion, the learned professions as sources of expert knowledge would cease to exist. If medical health providers have a First Amendment right to tell a patient anything they please, a doctor’s diagnosis will be worth as much as the latest Reddit thread.
Therefore, the Supreme Court must, in my view, reconsider how it analyzes government restrictions of professional speech. And it must do so in a way that is reasoned, coherent, and reflects a good deal of our settled constitutional practice.
I urge the court to come around to something like the model of “professional speech,” which now has a foothold in the US Reports in Justice Jackson’s dissent.
On this path, mind you, there will still be plenty of room for reasoned debate and disagreement on the outcome in particular cases—including this one. Justice Jackson’s conclusion about who wins in this case does not inexorably flow from the model of “professional speech”—but it would take too long to unpack that here.
The other approach is to keep talking about the marketplace of ideas while upholding some, and striking down other, regulations of what doctors and lawyers may say. That approach will, in my view, systematically lead the court down the wrong path and to the wrong decisions.
Moreover, it will be increasingly hard to shake the feeling that some of the justices uphold or strike down professional regulations based on whether they like them or not.
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