Professional Speech & Conduct: Do the Courts Know the Difference?

By: Prakash Kadiri

Is giving nutritional advice protected by the First Amendment? Absolutely. Now, what if you’re not licensed by the state but compensated for that advice—is your speech still protected by the First Amendment? A Florida District Court recently said no.

In deciding cases like this, courts try to distinguish whether the licensing laws— regulations requiring professionals receive approval from the state—affect professional speech or professional conduct. Professional speech is any speech based on an individual’s expert knowledge or judgment who is typically under a state’s licensing and regulatory regime, like a lawyer advising his client. Professional conduct, on the other hand, is daily actions performed on the job, like a doctor performing surgery; this is not protected from regulations by the U.S. Constitution. Now what if someone is a therapist whose conduct is exclusively speech, is her speech protected by the First Amendment?

Courts have agreed such speech—speech that is part of one’s profession—is not as highly protected by the First Amendment as other types of speech; therefore, state laws regulating such speech are held under less scrutiny. Recently however, the Supreme Court changed its position in National Institute of Family and Life Advocates v. Becerra (2018), or “NIFLA.” A crisis pregnancy center sued California over a law that mandated disclosures of other state-sponsored options relating to pregnancies, such as abortion. The law was challenged as violative of First Amendment rights for compelling speech. In response, the government argued the mandated speech was a regulation of professional speech and therefore constitutional. The Court disagreed and made clear that under the First Amendment, the Court does not differentiate professional speech from other types of speech. Furthermore, the Court clarified that states have the authority to regulate professional conduct but cannot reduce a person’s First Amendment rights through licensing requirements. Yet the Court acknowledged the trickiness in differentiating between professional speech and professional conduct.

Often, state attorneys, defending their state’s licensing laws, argue that if the speech-based conduct is compensated, it’s no longer professional speech but professional conduct. Therefore, they argue compensated speech-based conduct is not protected by the First Amendment. Since 2018, federal courts have wrestled with applying NIFLA to state regulations on speech-based professional conduct. It’s still unclear what standard of review courts should adopt.

For example, in the Capital Associated Industries Inc. v. Stein (2019), the Fourth Circuit heard a case in which an employee trade association wanted to give legal advice to its members. The association brought a First Amendment challenge against a North Carolina law forbidding corporations from practicing law unless the company is owned by a lawyer, is a public interest law firm, or has in-house counsel representing their employers. This law prevented the human resource center of the trade association from giving any sort of legal advice to association members. Following NIFLA, the court applied an intermediate scrutiny test and found the NC law does not violate the trade association’s First Amendment rights because the law is regulating professional conduct, not professional speech.

Similarly, the Sixth Circuit heard a case, in EMW Women’s Surgical Center, P.S.C. v. Beshear (2019), where a surgical center challenged a Kentucky law that compelled a doctor to perform an ultrasound and make the child’s heartbeat audible to the expecting mother before performing the subsequent abortion. The plaintiffs argued the law was in violation of their First Amendment rights. However, the court disagreed and held that because the law in question required only the disclosure of truthful, non-misleading, and relevant information about an abortion, the compelled speech did not violate a doctor’s First Amendment rights.

Essentially, the circuit courts categorized the compelled speech of the doctors in Beshear and forbidden speech of human resource employees in Stein as professional conduct that did not require strict scrutiny analysis against the respective laws. Of course, because both medicine and law are generally highly regulated professions, the court’s decisions in these two cases are unsurprising.

NIFLA’s effects are more interesting in contexts with speech-based professional conduct that are not universally held to a highly regulated standard. Currently, the Institute for Justice, a non-profit litigation firm, represents different clients in lawsuits against state laws that regulate professional conduct that is entirely speech.

In Hines v. Quillivan (2019), a Texas veterinarian offers veterinary advice over the internet, essentially practicing telemedicine for animals. A Texas law prohibits a veterinarian from communicating individualized advice unless he or she has first physically examined the animal. The Fifth Circuit, before NIFLA, stated the First Amendment was not implicated in his initial challenge in 2014. After NIFLA, the fully licensed veterinarian renewed his constitutional challenge, yet the district court upheld the law and sidestepped the issue. As of publication of this post, the decision is being appealed to the Fifth Circuit.

In a Mississippi case, a tech company that helps local banks evaluate collateral when creating loans came under threat of the state’s surveyor board. The tech company, Vizaline, communicated existing and established property boundaries using Google Maps-like technology. The company sought to challenge the surveyor board to protect their right to collect and disseminate information (property boundaries) to the bank clients. The district court, however, dismissed the claim because it found that the state could regulate surveyors and was unable to distinguish Vizaline’s business model from actual surveying. This decision was appealed to the Fifth Circuit; as of publication of this post, Vizaline awaits a new decision.

Finally, a Florida district court found that a Florida law, allowing only licensed people to be compensated for giving dietary advice, did not violate the First Amendment even though the entire practice of giving diet advice is speech-based. A Florida diet coach, who recently moved to the state, came under fire for giving individualized nutrition and diet coaching to her clients while unlicensed by Florida. The court relied on Eleventh Circuit precedents and applied rational basis review to deny the First Amendment claim.

None of these courts really allowed the First Amendment claims to be fully decided on the merits. Instead, the cases sidestepped these issues or used low standards of review to dismiss the claims and uphold the state’s regulation of professional speech. These cases will likely continue to be appealed and potentially create circuit splits in differing the standards of review, eventually forcing the issue to rise to the Supreme Court to create a uniform standard of review for speech regulations on professions. Until then, courts will likely remain unsure of the distinction between professional speech and professional conduct that is entirely speech.

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