“Eugene Volokh”:http://volokh.com/archives/archive_2004_05_28.shtml#1085773062 has an interesting post about unsolved or unexplored issues in First Amendment doctrine. His topic is Professional-Client Speech:
bq. Many professional-client relationships — lawyer-client, psychotherapist-patient, accountant-client, even often doctor-patient — mostly consist of speech. Sometimes, of course, they involve physical conduct (surgery) or the submission of statements to the government (a lawyer arguing in court). But often they consist solely of two people talking with each other, one asking questions and the other giving advice. And yet this communication is often subject to speech restrictions and speech compulsions that would generally be forbidden in other contexts.
He gives five examples, including professional negligence, professional advice being dependent on a license (a prior restraint in other contexts), and banned sexual relations between professionals and clients (doctors, etc). “What should be the proper analysis be under the First Amendment?” he asks. I have no idea, of course, because I’m not a lawyer. But sociologically, these restraints are generally self-imposed should be seen as constitutive of professional authority in the first place. A professional association that endorsed this kind of lawsuit would be making a big mistake.
Professions claim a monopoly on legitimate knowledge or expertise about something — medicine, dentistry, the law and so on. Professional societies organize to establish and enforce a monopoly on this knowledge. They do it in various ways: by setting up professional schools, by licensing practitioners, by lobbying the state to formally recognize and guarantee their legitimacy while banning their competitors, and so on. Because there are often multiple claimants to professional experise, the “system of professions”:http://www.amazon.com/exec/obidos/ASIN/0226000699/kieranhealysw-20/ref=nosim/ is a complex ecology of social actors trying to establish or entrench their professional status while fighting against those whom they want to label as quacks or impostors. The fringes of professional life are full of the authority-claims of upstart semi-professions (chiropractors, homeopaths, economists[1]) and concomitant efforts to leverage existing professional authority into new areas (intellectual property law, bioethics, social work).
In their efforts to establish legitimacy, particularly in the eyes of the state, professions adopt codes of conduct that bind their members to standards of practice. Professions agree with Superman that with great power comes great responsibility, with the caveat that with great responsibility comes the ability to police oneself. The benefits of being licensed to practice law or medicine by the state are paid for, in part, by deliberately giving up some of the opportunities that come one’s way as a consequence of holding that license. This contributes to the legitimacy of the field as a whole and provides further ammunition to fight charlatans and quacks who can now be identified by the absence of such codes and their attendant willingness to go into business, party or sleep with their clients. You see this clearly in cases where professionalization hasn’t happened. Management is a good example. Despite the proliferation of business schools and MBA programs, you don’t need a license to be a manager. As “Rakesh Khurana”:http://www.exed.hbs.edu/programs/hrm/faculty.html — whose “book”:http://www.amazon.com/exec/obidos/ASIN/0691074372/kieranhealysw-20/ref=nosim/ I warmly recommend, and who, I’m delighted to discover, has a “weblog”:http://rakeshkhurana.typepad.com/ — commented in last week’s _Economist_, professions are all about renouncing something, and managers in the U.S. haven’t shown much interest in giving things up in the past few years.
So, First Amendment Law in this area is probably unexplored because the kind of professional who would take a First Amendement case because she wasn’t allowed to knowingly give bad advice, lie to and sleep with her client, and then blab to her friends about his medical condition, is _ipso facto_ likely to have her license revoked for unprofessional conduct. Moreover, the desire of professions to police themselves leads to systems of internal review and the like aimed at preventing cases of misconduct from making it to the courts. This isn’t to say that such cases are unheard of, though I imagine it’s much more likely that it would originate from an incompletely institutionalized profession, or perhaps one presently in conflict with a competitor. Indeed, one of Eugene’s examples concerns bad advice given by marriage counselors.
All of which says nothing about the legal questions of First Amendment Doctrine, I suppose, but as I say I’m more interested in the sociology of professions. Note that the ability to pose questions like this — that the First Amendment might impinge on, and take precedence over, professional rules of conduct — is itself an aspect of the professional power of the law. Lawyers are in the happy position of being able to sit in judgment on themselves, and have the unique capacity to regulate and adjudicate disputes between other professions. And all billable by the hour, too. But of course it would be wrong to abuse that power.
fn1. Sorry, sorry.
{ 6 comments }
Jacob T. Levy 05.29.04 at 3:30 am
Spider-Man.
Otherwise, all quite right.
Kieran Healy 05.29.04 at 3:49 am
Spider-Man. Of course. Sorry about that.
John Quiggin 05.29.04 at 4:10 am
I was a bit surprised by Eugene’s example and in fact emailed him about it (no answer yet). I can’t see any difference between a marriage counselor (licensed by a regulatory board in the hypothetical example) being sued for bad advice and a doctor being sued for malpractice. Presumably any First Amendment issues in the latter case have long since been resolved.
As regards economists, it’s an interesting observation that there have been no attempts at professionalisation of economics (except the academic entry-ticket of a PhD), even though subfields like accounting and finance are full of this kind of thing.
Economists recognise all the negative features of professionalism and none of the positive one. I had a bit to say about this here.
Nicholas Weininger 05.29.04 at 3:45 pm
Your account of professionalism points up a lot of what I think is wrong with the modern concept of professions. Why claim a monopoly on legitimate expertise in a field, rather than just a particularly large and useful concentration of expertise? And why accept as a given that you will end up holding power over your clients, rather than striving to empower them instead and leave them with the greatest possible degree of responsibility for their own decisions? “With great power comes great responsibility” is a noble-sounding excuse for taking power you shouldn’t have in the first place, and taking responsibility away from others that they should have retained.
Dan 05.29.04 at 5:37 pm
This is a fascinating subject, and I thank you for following up on Prof. Volokh’s post. This subject is a research interest of mine because I direct a paralegal education program in the States. My students and graduates operate both within and at the fringes of a regulated profession. One of the topics we repeatedly emphasize is the “unauthorized practice of law.” In some cases (e.g., appearing on behalf of another in court) the line is a bright one; far more often, though, the boundaries of that line are anything but bright. We try to train our students to recognize the issue and deal with it before it becomes a problem.
Within the First Amendment context, I don’t think it is controversial to say that professional regulations operate, to some degree, as a restraint on speech. The state chooses to regulate some “professions” but not others. Why? One of the most often proffered rationales is the risk to the public from failing to regulate. Occasionally the risks are obvious: death or serious harm can result from someone doing surgery on you who doesn’t know what he or she is doing. Other times, the risks are not so obvious. Some states regulate hairdressers, for example. While there are risks associated with a bad haircut, that risk does not seem to approach the level of risk associated with bad health care. Of course, risk to the public isn’t the only reason to regulate. Sometimes a “profession” can simply muster enough political clout to convince the state that regulation is in the public interest, when it is really the profession’s interest that regulation protects.
In the end, the decision to regulate or not is more-or-less arbitrary. The Supreme Court concurrence that Prof. Volokh quotes demonstrates this:
“One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.
Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Lowe v. SEC, 472 U.S. 181 (1985)(White, J., concurring).
If I go to the local hardware store and ask the person what kind of fertilizer I should use on my lawn to make the grass grow and kill the weeds, that person is arguably “tak[ing] the affairs of a client personally in hand and purport[ing] to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances.” Yet that person is probably not regulated in any way. Once can surely hypothesize a set of facts where there is risk to the public in recommending and selling fertilizer; the state has simply chosen not to regulate.
Regulation is something a profession wants because it benefits the profession: the profession can exercise a “monopoly” over that knowledge; it can regulate entry into the profession; it can, to some extent, control prices; it can mandate exit from the profession. As you point out, there are costs associated with this. One of the costs is something less than the level of free speech enjoyed by the public generally. The profession is willing to pay this cost in exchange for the benefits of regulation. The public is willing to accept this because of the security it enjoys as a result of the regulation.
Every now and then, a profession decides to challenge speech regulations. Lawyer advertising used to be strictly regulated, but as other professions encroached on what was perceived to be the practice of law, lawyers rebelled and won. Though lawyer advertising is still regulated, the constraints have been substantially reduced.
I’ve rambled on far too long, here. I look forward to other comments on this issue.
john c. halasz 05.30.04 at 12:13 am
Actually, speaking from the U.S.A., the regulation of professional psychotherapy is fairly wide-open and lax. A decade and a half ago, there were wide-spread abuses concerning “false-memory syndrome” and accusations of Satanic child abuse that resulted in the incarceration of several probably innocent persons. In physical medicine, studies have estimated that only a small fraction of instances of malpractice, as low as 2%, are ever redressed. The problem with professional self-regulation is that it tends to function in the interests of the preservation of the value of the intellectual/educational capital of the profession over against the merely material factors of production, with only the most egregious instances and individuals subject to any severe sanction. Of course, I don’t think that an increase in state regulation would be of benefit, though a separation of the regulatory means from the manifest interests of the professional body would seem to be the proper criterion. On the other hand, leaving matters up to the self-interest of the legal profession, as with the litigiousness rampant here in the U.S.A., only tends to compound the irrationalities and injuries. And when several different professional groups are involved in a matter, then the comedy really grows: cover-your-own-ass syndrome then abounds.
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