At Volokh Conspiracy, Eugene delves into one of the shadier areas of First Amendment law, professional-client speech.  While it might be easily ignored, as one of those things that “just is” because it’s the way it’s always been, this subset of speech has been seized by the free speech relativists as a rationale for why they get to criminalize speech whenever there’s a teary-eyed story to tell.

The Court did not say that only speech falling within explicitly recognized categories (such as defamation, true threats, obscenity, imminent incitement of violence, and crime-facilitating speech) are proscribable. To the contrary, the Court specifically recognized that other forms of speech have “enjoyed less rigorous protection as a historical matter, even though they have not been recognized as such explicitly.”

In a breathless list, proponents run through restrictions like doctors and lawyers being prohibited from revealing patients’ and clients’ confidences, as proof that the categorical exceptions to free speech are vast, rather than limited to the specific handful the law recognizes.  And if the crimes concocted by anti-revenge porn zealots aren’t enough, there’s the “hate speech isn’t free speech” lie propagated by academics and SJWs.

What these efforts at misleading people as to the protections of the First Amendment have in common is the reliance on confused rationalizations and misleading examples to create questions in people’s minds. Throw enough crap against the wall and undermine any clarity as to what the law protects, particularly where people may emotionally want to censor speech they hate and are desperately seeking an excuse to do so. Some academics have dedicated themselves to sowing this confusion, selling what little scholarly credentials they have for their cause.

Addressing this significant piece of the confusion, Eugene Volokh offers:

One of the big uncharted zones of First Amendment law (here there be monsters) is professional-client speech. Courts have generally assumed that some restrictions on such speech are permissible.

He then offers examples of lawful restrictions on professional-client speech.

But at the same time, courts have also mostly concluded that professional-client speech isn’t entirely lacking First Amendment protection. Recent lower court opinions have therefore held that content-based restrictions on professional-client speech are subject to some First Amendment scrutiny, but only so-called “intermediate scrutiny” rather than the very-hard-to-satisfy “strict scrutiny.” 

While Eugene’s discussion focuses on the “what,” it offers little as to the “why” restrictions are permissible despite the First Amendment’s prohibition.  That piece is fairly straightforward, as society has authorized individuals to engage in professions that require specialized education and knowledge, culminating in licensure that entitled them to hold themselves out to the public as qualified to do so.

With this authority comes responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that operate to define the boundaries of good medical care. In keeping with this tradition, the State passed the Act.

One aspect of the responsibility is the acceptance of restrictions on professional speech. There are two separate components to this limitation, that speech by a licensed professional in the performance of his duties is, in fact, conduct, and the second, that a professional voluntarily waives free speech rights by voluntarily seeking authority to practice a restricted profession.  Some also argue that it’s commercial speech, but that is defined as speech addressing the availability or quality of goods or services, and really has no application here.

As to the “speech as conduct” theory, it relates to the professionals’ provision of services to patient or client, in that a physician, for example, obtains confidential medical information about a patient solely because of his professional relationship with the patient. Same for a lawyer and client. There is no independent component that gives the lawyer or doctor any authority to obtain secrets, and their possession of confidences derives exclusively from the professional relationship.  As such, the First Amendment right to tell cool stories about their patients or clients at cocktail parties can be restricted.

But the argument that aspirants to a profession waive certain rights in order to obtain the authority to practice the profession seems even more straightforward. There is no law that Aunt Gertrude, to whom a defendant confesses, can’t spill her guts, provided she’s not also the defendant’s lawyer. But the lawyer has agreed, as part of the package of becoming a lawyer, to abide the ethical and legal limitations imposed on his practice.  When he applied for his ticket, he accepted its terms, one of which was that he keep client confidences.

As Eugene notes, that doesn’t mean a lawyer or doctor gives away all First Amendment rights.  In other words, the state can’t silence a professional on any subject under the sun, but only those that can withstand “intermediate scrutiny,” which requires that regulation “further an important government interest by means that are substantially related to that interest.”

So what does all this have to do with the argument in favor of creating crimes that are based on speech? Absolutely nothing, and that’s the point. Crimes that apply to everyone, and the First Amendment restrictions that similarly apply to everyone are wholly distinct from speech limitations that are inherent to professional licensure.

This is a discrete subset of society, and the free speech restrictions that are part of the job, whether as a public safety prong of their conduct in giving professional advice and receiving information in the context of the performance of the profession, or under a waiver theory, has no connection to society at large. If your non-physician mother asks why you don’t feel well, she can tell your father what you said. She’s not a doc, and the restrictions on physicians don’t apply to her.

Yet, these professional-client restrictions are being thrown out to the public as if they’re examples proving that the First Amendment means pretty much nothing, so any argument on feelz that gains traction is good enough to silence speech without regard to the law. Not only is this false, but the fact that academics are spouting it to their students and the public is an abuse of their credentials and a palpable demonstration of their lack of integrity.