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Contribution to Book
Professional Rights Speech
First Amendment Law Handbook (2017)
  • Timothy Zick, William & Mary Law School
Abstract
Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First Amendment scrutiny. Many professionals perform critical, but underappreciatedf, u nctions with regard to the recognition and effective exercise of constitutional rights. Moreover, the author contends that the mere fact that the speakers are professionals and the listeners are clients or patients does not extinguish or diminish First Amendment protections or concerns. To the contrary, the examples discussed in the Article demonstrate various reasons, rooted in free speech values, constitutional rights, and professionalism norms for subjecting at least some professional speech regulations to heightened First Amendment scrutiny.
Keywords
  • Confidential Communications,
  • Freedom of Speech,
  • Professional Employees,
  • States,
  • Strict Scrutiny Doctrine,
  • United States Constitution
Publication Date
2017
Editor
Rodney A. Smolla
Publisher
Thomson Reuters
Citation Information
Reprint of: "Professional Rights Speech," 47 Arizona State Law Journal 1289-1360 (2015)