A reader asks: Why isn’t the professional speech question — when may the government regulate speech by lawyers, psychiatrists, accountants, doctors, and other professionals — covered by the commercial speech doctrine? Under First Amendment law, “commercial speech” is less protected than other kinds of speech; and professional speech is commercial speech, right?
Wrong; and this raises an important point that’s worth remembering — the commercial speech doctrine is generally limited to commercial advertising, which is to say speech proposing a commercial transaction with the speaker. There are certainly gray areas, as in the recent Nike v. Kasky litigation, but they relate to how direct the proposal has to be: For instance, if Nike assures the public that its shoes are made in factories that abide by certain labor rules, is that commercial advertising, because it’s aimed at getting the public to buy Nike shoes? Or should it not be treated as advertising, because Nike should have a right to participate equally in debates about its own supposed labor practices?
But it’s quite clear that speech does not become “commercial speech” simply because it’s being sold in commerce. True, a psychiatrist and a patient are engaging in a commercial transaction — a patient pays money for advice. But the New York Times and its customers are also engaging in a commercial transaction: The customer is paying money for the newspaper. (The newspaper also engages in commercial transaction with its writers, who write for money.) Likewise, the author of a psychiatry self-help book and his customers are engaging in a commercial transaction. Yet newspapers and books are treated as fully protected speech, not commercial speech. Only commercial advertising, not commercially sold speech generally, is treated as “commercial speech.”
The same goes for professional-client speech: Unless the speech is itself commercial advertising (e.g., speech by the professional urging the client to engage him), it is not commercial speech. If professional-client speech can be more heavily regulated than other speech, the reason must be something other than the commercial speech doctrine.
So just remember: “Commercial speech,” for First Amendment purposes, basically means “commercial advertising.” It’s not speech sold in commerce. It’s not speech about commerce (such as the Wall Street Journal). It’s not even advertising bought in commerce (such as a political ad in a newspaper). It’s speech by which the speaker proposes, directly or indirectly, a commercial transaction with itself (or its business associates).
(Warning: As is generally the case with posts that try to boil down complex doctrine into a few paragraphs, this post contains some necessary oversimplification — but the basic thrust, I think, can be quite reliably applied to most situations, including professional-client speech.)
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