An interesting article tackles the difficult and topical subject of free speech protection and the speaker’s intention.
First Amendment precedents can be confusing, non-linear, and seemingly not based upon common sense. Professor Eugene Volokh in “The Freedom of Speech and Bad Purposes” scrutinizes whether a speaker’s improper purpose can actually lose protection for speech. Using a wide spectrum of examples, from both the civil and criminal contexts, Professor Volokh concludes “the protection of speech should not turn on what a factfinder concludes about the speaker’s purposes.”
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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, 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.
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.
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.
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