I'm adding a new section on "The Unsolved Problems" to my First Amendment textbook supplement. (Eventually, if there's a second edition, it will be worked into that.) Most of the textbook focuses on what the Supreme Court has said about various questions, such as the constitutional protection offered advocacy of violence, false statements of fact, sexually themed speech, and so on. But on some important questions, the Supreme Court has said very little; and these, I think, can be particularly interesting subjects for in-class policy discussion, precisely because there's no binding precedent.

A couple of the topics are ones that I've blogged about extensively — hostile environment harassment law and crime-facilitating speech. But I thought I'd mention here another one, which is actually very important but which has gotten much less attention than it deserves: professional-client speech.

I'm not writing on the subject, so I'm not soliciting suggestions. (There have been some interesting pieces already written on it, including by my fellow Kozinski clerk Robert Kry, though many fewer than I would have expected.) I probably won't even have time to discuss this more on the blog. Still, I thought some readers would find it interesting, so I'll quote my summary of the question, and the problem that I recommend people use to discuss this:

2. Professional-Client Speech

a. The Issue

Many professional-client relationships — lawyer-client, psychotherapist-patient, accountant-client, even often doctor-patient — mostly consist of speech. Sometimes, of course, they involve physical conduct (surgery) or the submission of statements to the government (a lawyer arguing in court). But often they consist solely of two people talking with each other, one asking questions and the other giving advice.

And yet this communication is often subject to speech restrictions and speech compulsions that would generally be forbidden in other contexts. For instance:

1. Many professionals may not advise clients without a government license — something that would be a prior restraint if applied to speech by people other than professionals.

2. The government may impose liability on professionals for negligent advice, not just for negligently false statements of fact, but also for negligent predictions, which would otherwise be generally seen as constitutionally protected opinions.

3. The government may bar professionals from revealing client confidences. This isn't just an implied contract term (which might be defensible under Cohen v. Cowles Media Co.), because under some such rules the obligation can't be disclaimed even if the professional expressly states to the client that he doesn't promise confidentiality.

4. Some professionals, including lawyers and psychotherapists, are barred from having sexual relations with their clients — and it is the professionals' communicating with the clients that triggers the prohibition. Laws that constrain the sexual choices of authors of advice books, or of movie stars who project an image of trustworthiness, would violate the First Amendment (as well as perhaps the sexual autonomy right recognized by Lawrence v. Texas); such laws involve a burden placed on people because of their speech. Yet similar burdens are imposed on some professionals because of their speech.

5. A requirement that doctors give patients certain state-provided information before getting the patient's consent to an abortion was upheld in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality), with just the following discussion:

   All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement thatthe physician provide the information mandated by the State here.

Such restrictions and compulsions may in fact be properly upheld: There may be something in a professional-client relationship that would justify such extra regulation. But the Court has never explained (1) exactly what speech restrictions and speech compulsions would be allowed in such a situation, or (2) exactly when this reduced protection would be triggered. In Lowe v. SEC, 472 U.S. 181 (1985), a three-Justice concurrence (written by Justice White and joined by Chief Justice Burger and Justice Rehnquist) suggested this rule (paragraph break added):

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech, or of the press."

The majority, however, didn't find it necessary to speak to this question. See also Thomas v. Collins, 323 U.S. 516 (1945) (holding that union organizing couldn't be restricted on the grounds that such a restriction was just a regulation of the "profession" of union organizer).

b. Problem: Counseling That Advocates Race-Based Decisions

A state has long required all marriage and family counselors — defined as "any person who offers advice related to marriage and family matters in exchange for money" — to be licensed, and to follow rules prescribed by the state's Marriage and Family Counseling Licensing Board.

The Board learns that some marriage and family counselors are advising clients not to enter into interracial marriages or interracial adoptions. Some are even advising clients who are in interracial marriages that the interracial nature of the marriage may be a source of the problem, and are suggesting in some instances that divorce may therefore be the only solution.

The Board believes that such advice is offensive, and harmful to the patients. It therefore enacts the following rule: "Any marriage and family counselor who uses the patients' race, or the race of the patients' spouse, children, or prospective adoptive children or stepchildren, as part of the basis for the counselor's recommendation, shall have his or her license suspended for six months."

Based on this rule, Mary Moe, a counselor who had engaged in such advice, has her license suspended. Her former patients, Laura Loh and Richard Roe, who divorced each other partly on Moe's advice (Loh is East Asian and Roe is white), but who have since reconciled, sue Moe for emotional distress caused by her advice, which they claim constituted malpractice. The judge awards them $100,000 in a bench trial. One of the judge's findings of fact is that Moe's advice was unreasonable by the standards of the profession, and the sole evidence that the judge relies on is the Board's rule.

What should be the proper analysis be under the First Amendment?

News.com reports:

A New York state man who sent out millions of junk e-mails was sentenced to three-and-a-half to seven years in prison, the state attorney general's office said Thursday.

Howard Carmack, known as the "Buffalo Spammer," received the maximum sentence for 14 counts of identity theft and forgery, a spokesman for New York Attorney General Eliot Spitzer said.

Carmack sent out 825 million bulk e-mail messages using stolen identities and forged addresses, the court found, and was the first defendant to face charges under the state's new identity-theft statute. . . .

Carmack could be out in three-and-a-half years should he behave in prison . . .

The CNN assault weapons poll, which used to be (if I recall correctly) about 60-40 in favor of extending the assault weapons ban, is now 55-45 in favor of lifting it (or, more precisely, not extending it).

Of course, the result is still junk, and CNN should be ashamed of intimating to the public that the result is meaningful. They do write, below the graphic showing the results,

This QuickVote is not scientific and reflects the opinions of only those Internet users who have chosen to participate. The results cannot be assumed to represent the opinions of Internet users in general, nor the public as a whole. The QuickVote sponsor is not responsible for content, functionality or the opinions expressed therein.

But if the result doesn't represent the public's opinion, and only reflects who happened to be better organized online to drive up the statistics, then why should a news organization that aspires to accuracy and candor report it? My sense is that the reason this thing draws eyeballs is precisely that some readers, who aren't knowledgeable in statistics, do wrongly ascribe some meaning to it.

I'm happy that people won't be able to tout the results of this poll as evidence in favor of gun restrictions. But I'd be happier still if serious news organizations got serious about this subject, and dropped this sort of misleading nonsense.

[PLEASE NOTE IMPORTANT CORRECTION BELOW.]

Clayton Cramer posts about what he says is "The ACLU's Stunning Hypocrisy About Free Speech." His evidence? The only evidence that I saw in his posts was that (1) the ACLU was defending the rights of obnoxious anti-Mormon street preachers to speak on a pedestrian mall that had been sold by Salt Lake City to the Mormon Church, but (2) the ACLU is apparently not involved in defending the rights of obnoxious anti-gay street preachers to speak on a public sidewalk outside a gay pride festival in Harrisburg, Pennsylvania (see here for more details). Cramer argues based on this:

Where's the ACLU? If they want to push for the right of offensive speech in Salt Lake City, why not in Harrisburg?

It seems increasingly clear that the ACLU has abandoned its support for freedom of speech, if that speech is directed against homosexuals.

Hence the charge (in the title of his post) of "the ACLU's stunning hypocrisy."

Well, let's see: Do we know that the Harrisburg preachers called the ACLU? Cramer gives no evidence of that, and I know of none. Perhaps they didn't call the ACLU. Perhaps they have their own lawyers and don't need the ACLU's help. (The ACLU had actually spoken up in the past on behalf of one of the Harrisburg preachers' right to speak out against abortion. It's not clear, though, whether Grove would be interested in ACLU's direct legal help. And if the question is where ACLU's public comment is, it's not clear whether the ACLU's views on the PrideFest controversy were solicited by the media — or for that matter whether they might have been solicited, given, but then not reported in any easily accessible publication.)

What's more, to my knowledge in most instances decisions are made by local ACLU chapters. Even if somehow the Pennsylvania ACLU behaved differently from the Utah ACLU — and I stress again that we have no reason to think so, since we don't know if the Pennsylvania ACLU was asked to stand up for Grove — that might simply be evidence of different views in the organization rather than "hypocrisy" on the part of the organization as a whole.

[MAJOR ERROR IN THIS ORIGINAL PARAGRAPH: Finally, when the national ACLU has had to speak up about the First Amendment and opposition to homosexuality, it has to my knowledge come out for the First Amendment. The ACLU filed an amicus brief supporting the Boy Scouts in Boy Scouts v. Dale, stressing their right to exclude gay scoutmasters. And the ACLU filed an amicus brief in Hurley v. Irish-American Gay, Lesbian & Bisexual Group — the case in which the organizers of the St. Patrick's Day Parade wanted to exclude some pro-homosexuality floats — supporting the right of nongovernmental organizations to exclude such speech. (The Hurley brief was on behalf of neither party, because the ACLU argued, not implausibly, that the parade organizers might in fact be state actors because the city had given them preferred treatment. If this were so, and the ACLU asked that the case be remanded for findings on whether this indeed was so, then the gay rights group would itself have had a legitimate First Amendment claim to equal access to a state-actor-organized parade. But in any event, the ACLU expressed its full support for the rights of non-state-actors to speak, even when their speech involved the exclusion of pro-gay messages.)]

[CORRECTION:] My quick research last night completely led me astray as to the Boy Scouts v. Dale brief; the ACLU, it turns out, was indeed on the wrong side of the question, and in favor of applying the antidiscrimination law to the Boy Scouts — their theory was that "State regulation of who takes part in an act of expression, like a parade or a demonstration, interferes directly with a speaker's message. By contrast, insisting that an association not discriminate in its membership ordinarily does not interfere with the organization's message because there is little risk that an association open to the public will be thought to be making a statement through the composition of its membership."

My apologies for screwing up on that (I must have picked up the wrong brief from the WESTLAW listing), and appreciate the messages from readers Benjamin George and Gil Milbauer who set me straight on this, and allowed me to promptly correct this.

Nonetheless, my basic point still remains: Even if the ACLU is in error on this score, neither the Harrisburg-Salt Lake City comparison nor the ACLU's restricted view of the freedom of expressive association supports the charge of "hypocrisy" on the ACLU's part. [END CORRECTION]

I have plenty of differences with the ACLU. I think they're not as solid supporters of free speech as they used to be, and this is especially so as to some local chapters. And perhaps there is some other evidence somewhere out there that the ACLU fails to adequately support the right to engage in anti-gay speech. But Cramer has not, as I see it, adduced any reliable evidence in support of his pretty strident charges.