Individualized Advice and the First Amendment

by Paul Sherman:

One of the fascinating things about the First Amendment is that, despite having been around for more than 200 years, there are still fundamental questions that the U.S. Supreme Court has not even addressed, let alone resolved.  One of the most important of these is whether or not the First Amendment protects individualized advice; that is, advice specifically tailored by the speaker to the needs of the listener.

Free SpeechA moment’s reflection reveals that restrictions on advice are all around us, commonly in the form of occupational-licensing laws.  And as government has grown, so too has the amount of advice that it seeks to regulate.  In North Carolina, a state dietitian board ordered a blogger to stop giving advice on the low-carb “Paleo” diet because he is not a licensed dietitian.  In Texas, the veterinary board ordered a licensed veterinarian to stop giving pet-care advice to people in foreign countries, who often had no other access to veterinary care.  And in Kentucky, the state psychology licensing board ordered a syndicated newspaper columnist to stop giving parenting advice in his Dear Abby-style column.

It seems obvious that these restrictions must implicate the First Amendment.  Advice is clearly a form of speech, and the First Amendment says that the government “shall make no law . . . abridging the freedom of speech.”

Surprisingly, however, the U.S. Supreme Court has never squarely addressed the question of how or whether the First Amendment applies to occupational licensing laws. Nevertheless, the Court has spoken with enough clarity to refute the main arguments made by the proponents of such laws.

The most common argument is that individualized advice isn’t speech at all, but rather a form of “professional conduct.”  Under this reasoning, helping a person lose weight by advising them to eat more vegetables and less pasta is the conduct of “nutritional assessing and counseling,” and is no more protected by the First Amendment than helping a person lose weight by performing gastric-bypass surgery.

This argument has been expressly rejected by the U.S. Supreme Court.  In the 2010 decision Holder v. Humanitarian Law Project, the Court rejected an argument by the federal government that giving expert legal advice to designated terrorist groups was conduct rather than speech.  As the Court made clear, the application of the First Amendment doesn’t turn on the label that the government attaches to an activity, it turns on whether the activity communicates a message.  Legal advice—like all advice—clearly communicates a message, and thus implicates the First Amendment.

Another common argument is that the First Amendment does not apply to speakers who are compensated for their advice.  But the Supreme Court has held for decades that the fact that a speaker is paid to speak has no bearing on the level of First Amendment protection to which that speaker is entitled.  And it could hardly be otherwise; it cannot be the case, after all, that a book is protected by the First Amendment if given away, but unprotected if sold.

Finally, some argue that speech between a professional and a client simply falls outside the scope of the “freedom of speech” described in the First Amendment, in the same manner as fraud, defamation, obscenity, or incitement.  But this argument, too, has been rejected.  In the 2010 decision in United States v. Stevens, the Supreme Court made clear that categorical exceptions to the First Amendment may only be recognized on the basis of evidence that the challenged category has historically been considered unprotected.  That showing is impossible to make for the kinds of common advice that Americans freely exchange every day.

In short, the Supreme Court’s First Amendment caselaw doesn’t justify treating advice as second-class speech.  Nevertheless, lower courts have tended to do precisely that.  So what explains this disconnect?

One explanation is that courts are confused by another, conflicting body of caselaw:  the U.S. Supreme Court’s economic-liberty jurisprudence.  Over the same period that the Supreme Court has become vastly more protective of First Amendment rights, the Court has become vastly less protective of economic liberty.  While content-based restrictions on speech are reviewed with the highest level of judicial scrutiny, occupational-licensing laws are reviewed with the lowest.  As a result, when courts evaluate occupational-licensing laws that impose content-based burdens on speech, they are faced with the legal equivalent of the philosopher’s unstoppable force colliding with an immoveable object.  In response, they too often throw up their hands and resolve the conflict in favor regulation rather than free speech.

Another plausible explanation is that judges and the legal academy simply don’t recognize the value of the sort of advice burdened by occupational-licensing laws.  It is common for judges and law professors to wax poetic over the privileged position that political speech occupies under the First Amendment (a privilege that lacks any grounding in the actual text of the First Amendment).  But for most people, the freedom to seek out advice on personal finance, health, or child care is vastly more important than the freedom to seek out advice on political matters.

It is past time that courts recognized the value of individualized advice and gave it the constitutional protection it is due.  We live in a complex world and no one can be an expert on everything, which is why all of us seek out advice from people we trust about the important decisions in our day-to-day lives.  When government restricts those sources of advice, it not only violates the rights of speakers, it violates our right as listeners to decide for ourselves which messages—and which messengers—are worth considering.

 

Paul Sherman is a senior attorney at the Institute for Justice, which defends occupational speech nationwide.

3 Comments

  1. great read … and people wonder why we don’t have jobs

    too many people worrying about making money, and not enough about adding value. if you are adding value, you won’t need the state to protect your sources of income!

  2. what part of do not make a law to abridge the freedom of speech don’t they get? speaking about gastric bypass surgury and performing is quite another matter one is speech one is a service being performed requiring vast experience. I am just amazed how much people try to get around the law (constitutional and Jehovah’s laws) by using semantics and twisting language. shameful. lets change the definition of accident from unintentional wrech ot one of intentional wreck problem solved. sure we should be responsible for what we say if speech was said with malice (fire!!! in a theatre causing panic as an example).

  3. Pingback: Do You Use Your Blog to Give Individual Advice? « Pejman Yousefzadeh

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