Under the First Amendment individuals have the right to the freedom of speech. But in the instance of when professionals speak it can conflict with government’s right to regulate professions for the health and well-being of individuals, called police powers. In the balancing of the competing rights an individual’s right to free speech is not lost when one enters into a profession,1 giving rise to the professional speech doctrine.
Three recent United States Court of Appeals decisions, from three separate circuits, are reinforcing the idea there are constitutional limits to the regulations governments may impose upon professional’s speech. The regulation of professionals extends from doctors and lawyers to even fortune tellers.2
This issue involves a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment.3
Professional speech is defined when the government’s right of licensing and regulation through police powers outweighs an individual’s right to free speech.
This article will explain the facts of the three separate United States Court of Appeals decisions and how the courts analyzed the issues presented to them. Hopefully, this article will illustrate the modern trend of analyzing issues arising under professional speech.
Serafine v. Branaman, No. 14-51151 (5th Cir. Jan. 12, 2016).
Mary Serafine ran for state Senate in Texas. Both on her campaign website and her campaign filing with the Secretary of State, Ms. Serafine described herself as an attorney and psychologist. Ms. Serafine is not licensed to practice as a psychologist in Texas because she did not receive a doctorate from a qualifying doctoral program. She is licensed attorney in Texas, and her speech as a legal professional is not in question.
In the lead up to the election, the Texas State Board of Examiners of Psychologists told Ms. Serafine that she was violating the state statute regulating psychologists and ordered her to stop using the title of psychologist on her political website, and to stop offering “psychological services” in Texas.4 After removing psychologist from her website and other publications, she then sued.
Fifth Circuit’s Analysis
The Court agreed with Ms. Serafine’s contention the statute is unconstitutional in the context of political speech when she represented herself to the public “by a title or description of services that includes the word ‘psychological,’ ‘psychologist,’ or ‘psychology.'”
The Court recognized that the United States Supreme Court never squarely addressed the professional speech doctrine, but the courts which do recognize it, base it upon Justice White’s concurrence in Lowe v. SEC, 472 US 181 (1985).
The First Amendment does not act as an automatic trump card protecting speech from all regulation. But the Fifth Circuit states the professional speech doctrine must be applied narrowly.
“[A]ssuming arguendo that the speech of professionals can be regulated incidentally to a valid licensing scheme, Justice White’s concurrence suggests that such restrictions—to avoid running afoul of the First Amendment—are properly confined to occupational-related speech made to individual clients.”5
The Court notes in this case Ms. Serafine’s speech on her website was not made to individuals, but to the public at large entitling it to full First Amendment protections.
Moore-King v. County of Chesterfield, Va., 708 F. 3d 560 (4th Cir. 2013).
Patricia Moore-King desired to offer services as a psychic and a spiritual counselor in the County of Chesterfield, Virginia. She wanted to use the trade name “Psychic Sophie.” Ms. Moore-King is inspired by a variety of sources including: “[s]pirituality, astrology, Reiki, natural healing, meditation” and metaphysics among others.6 She incorporates those sources into spiritual counseling, which is her primary practice.
Chesterfield County regulates the profession of fortune tellers. Although Ms. Moore-King does not identify herself as a fortune teller, both parties agree that her practice fits within the County’s definition for a fortune teller.
The County regulates fortune tellers in four ways: 1. Must acquire a business license; 2. Must apply for and obtain a permit from the Chief of Police; 3. Pay the license tax of $300.00; 4. The County regulates where fortune tellers may have their business through zoning ordinances.
When confronted by the City about the business license, Ms. Moore-King chose not to get the license and instead challenge it in the courts.
Ms. Moore-King claims these regulations burden her freedom of speech.
The County claimed it the regulations are valid because it believes: 1. fortune telling is inherently deceptive; 2. inherently deceptive speech is not afforded First Amendment protections.
Fourth Circuit’s Analysis
The modern trend appears to provide some constitutional protections for predictive speech. The Court notes that there is some case law that supports the County’s contention inherently deceptive is within the police power of the state, but the modern trend is to look at fortune telling as predictive speech (like religious prophesy, medical diagnoses, etc. (I would put weather forecasting in this list, as an aside)).
“The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.”7
Moreover, the Court pointed out that even false speech is given some constitutional protections unless it harms someone. “[T]hat falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”8 The County never argued Moore-King’s speech harmed anyone.
The Court turned its attention to what level of protection Moore-King’s speech deserves under the First Amendment.
The Court found that no constitutional protections apply to Moore-King’s speech because her actions fit within the realm of the professional speech doctrine. Her psychic and spiritual reading activities are performed in front of paying customers and not intended for the general public. As she stated to the court, she custom fits her advice to each individual client. This professional speech rightly falls within the scope of the County’s four part regulation (summarized above).
The Court refrained from deciding what level of protection fortune telling for public consumption (i.e. a generalized horoscope appearing in a newspaper) would deserve under the First Amendment.
Pickup v. Brown, 740 F. 3d 1208 (9th Cir. 2013).
The California Legislature passed a law which banned “state-licensed mental health providers from engaging in ‘sexual orientation change efforts’ (‘SOCE’) with patients under 18 years of age.”9 The Ninth Circuit Court of Appeals combined two different cases where Plaintiffs sought an injunction to stop enforcement of the law because it violated their constitutional rights.
The trial courts split on whether Plaintiffs would be able to succeed on the merits on the application of an injunction to stop the enforcement of the law. In each case, the losing party appealed.
Ruling just on the law (since there are different facts for each case) the Court holds SOCE as a state law, regulates professional conduct, and does not violate any of the Plaintiff’s constitutional rights.
The ‘Soce’ Law
SOCE also known as reparative or conversion therapy, seeks to change an individual’s sexual orientation from homosexual to heterosexual. Both Plaintiffs in this case are mental health providers which use non-aversive treatments which use physical and social reinforcements “to increase other-sex sexual behaviors.”10 Treatments can involve re-framing desires, redirecting thoughts, or the use of hypnosis, all with the intent of changing the individual’s sexual preference.
California’s SOCE law does one thing: “it requires licensed mental health providers in California who wish to engage in practices… that seek to change a [minor’s] sexual orientation either to wait until the minor turns 18 or be subject to professional discipline.”11 The law does not limit mental health providers speech to the general public, or in recommending treatment to clients.
Ninth Circuit’s Analysis
The Court’s analysis first looks at whether the state law regulates words or conduct. This is because the United States Supreme Court instructs free speech protections do not apply to conduct that is not “inherently expressive.”
Looking back to its past cases the Court reiterates the principle that conduct in part, initiated by speech, never has been afforded free speech protections. Even in talk therapy, is only initiated by speech which is intended to treat depression, considered conduct by the Court. But the Court says that in and of itself is not determinative in the analysis to the treatment of specific mental health treatments.
The Court decides to use a continuum in deciding the free speech rights of professionals. “At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest….At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished….At the other end of the continuum, and where we conclude that [SOCE] lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech.”12 Using the continuum, the court holds the SOCE regulation falls within the realm of the state’s police powers and not within the free speech protections.
Taking things a step further, the court concludes “the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone.” 13
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- Lowe v. SEC, 472 US 181, 228 (1985) (White, J., concurring).
- Moore-King v. County of Chesterfield, Va., 708 F. 3d 560 (4th Cir. 2013) (regulation of fortune teller’s speech)
- Lowe v. SEC, 472 US 181, 228 (1985) (White, J., concurring).
- Serafine v. Branaman, No. 14-51151, at ¶¶ 3,4 (5th Cir. Jan. 12, 2016).
- Serafine v. Branaman, No. 14-51151, at ¶ 11 (5th Cir. Jan. 12, 2016).
- Moore-King v. County of Chesterfield, Va., 708 F. 3d 560, 564 (4th Cir. 2013).
- Moore-King v. County of Chesterfield, Va., 708 F. 3d 560, 567 (4th Cir. 2013).
- Moore-King v. County of Chesterfield, Va., 708 F. 3d 560, 567 (4th Cir. 2013) (quoting US v. Alvarez, 132 S. Ct. 2537, 2557 (2012) (Alito, J., dissenting)).
- Pickup v. Brown, 740 F. 3d 1208, 1221 (9th Cir. 2013).
- Pickup v. Brown, 740 F. 3d 1208, 1222 (9th Cir. 2013).
- Pickup v. Brown, 740 F. 3d 1208, 1222 (9th Cir. 2013) (internal quotation marks omitted).
- Pickup v. Brown, 740 F. 3d 1208, 1227-29 (9th Cir. 2013).
- Pickup v. Brown, 740 F. 3d 1208, 1230 (9th Cir. 2013).