Professional Speech Doctrine

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.

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Neutral Pharmacy Rules Upheld Over Religious Objections

In a religious freedom decision, the Ninth Circuit Court of Appeals upheld the state of Washington’s rules requiring the timely delivery of prescription medication over two pharmacists religious objections. The pharmacists objected to delivering emergency contraceptives on the grounds of religious freedom.

The issue presented is whether a pharmacist must timely delivery emergency contraceptives when the state’s rules for pharmacies are neutral and generally applicable. The federal appellate court upheld the state’s pharmacy rules because “the rules are neutral and generally applicable and that the rules rationally further the State’s interest in patient safety.”1

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