Little-discussed free speech question:

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?