The question of how the First Amendment interacts with the government’s
power to regulate the practice of an occupation has bedeviled courts for
decades. But a growing number of courts — including the United States
Court of Appeals for the Ninth Circuit, which upheld California’s law —
have held that many restrictions on occupational speech are governed by
what they call the professional
speech doctrine, a rule that says professionals like doctors are
entitled to less First Amendment protection than ordinary citizens
because of the reliance clients place on their expertise. Applying that
rule to the California case could give government officials broad
authority to compel or prohibit speech by crisis-pregnancy centers.
That idea may seem appealing to readers whose sympathies lie with
California in this case, but it is nonetheless a recipe for widespread,
ideologically motivated censorship. And that is not speculation; it is
how this rule has played out. When government officials are given the
power to regulate speech they deem professional, they abuse it —
immediately and with unseemly zeal.
Sometimes, government officials use their newfound powers to silence
speech they find politically uncongenial. For example, after the
American Medical Association adopted a policy urging doctors to discuss
gun ownership with their patients — either to talk to them about gun
safety or, perhaps, to dissuade them from owning guns at all — the
Florida Legislature, spurred by gun-rights advocates, rushed to prohibit
doctors from doing so. In court, Florida
defended the law as a regulation of unprotected
“professional speech.” It took five years of litigation, in the face of
repeated court rulings upholding the ban, before the law was finally
struck down in 2017 by the United States Court of Appeals for the 11th
Circuit.
Other times, officials simply try to silence speech that is
embarrassing. When an Oregon man named Mats Järlström, who we have
represented, wrote to his state engineering board to complain that
traffic engineers had made mistakes in how they calculated the timing of
red-light cameras, the
board fined him $500 for doing the underlying math
without an engineering license. (As it happens, the physics professor
who initially came up with the formula for timing red-light cameras
thought that our client was probably right, but that made no difference
to state officials.)
And these threats to free speech extend far beyond traditional
professions like doctors or engineers. Regulators have invoked the idea
of professional speech to crack down on everything from everyday advice
about healthy eating to private citizens’ testimony at public
city-council hearings. One court even held the professional-speech
doctrine applies to fortune tellers; in another case, city attorneys
said it should apply to tour guides telling ghost stories. It turns out
that there really is no such thing as just a little bit of censorship.
As this case moves from oral arguments to a published opinion, the court
will undoubtedly be deciding between groups supporting and opposing
abortion rights. But it will also have to decide whether or not to grant
government officials sweeping powers to regulate speech they find
obnoxious on the grounds that the speaker is a professional. Americans
have strongly held and widely divergent opinions on the first issue. But
if we are to preserve our ability to openly and honestly debate abortion
rights — or any issue — we should all stand united on the second one.