Jul 23 2019

Practicing Medicine Without a License Is Not Free Speech

A federal court has recently affirmed that states do indeed have the right to enforce professional licensing laws. This may seem obvious, and I think it is, but lawyers for Heather Del Castillo (from the libertarian, public-interest law firm, The Institute for Justice), a “holistic health coach” based in Florida, argued in court that their client was protected by the First Amendment’s guarantee of free speech. Judge Casey Rogers of the US District Court for the Northern District of Florida rejected their arguments out of hand.

This is a very important ruling for anyone interested in science, skepticism, and professionalism. Had the ruling gone the other way, it would have been a disastrous precedent. Let’s review what the First Amendment does and does not guarantee.

First, you have to think about when a question of speech and censorship is a First Amendment issue at all. For example, if you get banned from a social media outlet because someone doesn’t like your speech, that is not a First Amendment issue. The First Amendment states, “Congress shall pass no law…abridging the freedom of speech…” This applies only to the government, both federal and state. So this affects how and when the government can censor, oppress, and punish speech. It has zero effect on private companies or citizens. The bottom line is that you have no right to speech in someone else’s private venue.

What about getting fired from your job for your speech? Nope, that’s not a First Amendment issue either, if you work for a private company and not any government. However, your employer may still run afoul of the Civil Rights Act or contract law. If you do work for the government, then the burden of proof shifts to the government. They can only discipline you for your speech if it interferes with your job or violates your contract or ethical guidelines of the job.

The First Amendment applies when government is involved in any way. If you get sued for libel, then that is a First Amendment issue. The government cannot shut down your newspaper because it doesn’t like your editorial policy. You cannot be arrested and jailed for your speech (with certain limits). Once we determine that a certain situation is a First Amendment issue we are not done, because freedom of speech is not absolute. There are certain very narrowly defined limits.

Here is a good overview. The government can restrict speech that incites people to immediate and specific violence, and also credible threats of violence that puts someone at risk. There is also a fairly high bar for banning obscenity. Most obscenity is protected, but if it is particularly offensive and without artistic or literary value, it can theoretically be banned. This one is tricky, however, and it seems that apparent obscenity is increasingly protected by legal precedent. Child pornography is a clear exception, however, and is simply illegal. Libel and slander are also not protected, but the burden of proof is on the plaintiff who has a high bar to meet.

If the speech itself is inherently criminal, such as perjury, that is not protected, nor is speech that is used to commit a crime. So criminals discussing how they are gong to knock over a bank is not protected. Also speech that violates copyright law is not protected.

Finally we come to the category that is relevant here – commercial speech. Commercial speech is still protected by the First Amendment, but that protection is diminished. The courts have recognized that governments have a legitimate interest in protecting the public. That interest may supersede the First Amendment if the government can demonstrate both that they have a legitimate interest, and the restrictions are narrowly tailored to be the minimum necessary to meet their interests. That was the exact judgement by Casey Rogers in this case.

States can licence professionals in order to maintain minimum standards. That necessarily means they can restrict engaging in a profession without a license. If that profession involves giving advice, then they can restrict charging a fee for that advice if you do not have the appropriate license. Otherwise licensure is meaningless. You can always give your advice for free – that is protected free speech. Once you charge for it you are engaging in a profession, and licensure laws apply.

Libertarians generally disagree with this state of affairs, which is why the Institute for Justice took up this case, and why they vow to appeal. They believe that licensure laws essentially restrict competition and are an example of governments meddling in the free market. As if often the case, they have a point, but in my opinion they take it too far. They are making the mistake of applying a valid principle absolutely, without balancing it with other valid principles. Licensure laws are sometimes used primarily to restrict competition, rather than truly ensure quality and professionalism. The system is easy to abuse. But that does not mean it is wrong or abused in every case. Especially when it comes to health care, the public interest of having regulated quality and ethical standards is legitimate and very compelling. The public interest more than justifies having and enforcing professional standards.

That is what the judge affirmed in this case, rebuking the Libertarian argument against the very concept of professional licensure. Further the judge ruled that the state’s actions were narrowly tailored, and furthered a legitimate state interest in protecting the public. Heather Del Castillo was practicing without a license and then tried to hide behind the First Amendment. It’s a good thing that the court did not buy this argument. Otherwise professional standards would evaporate. The states would have essentially lost all ability to regulate health professionals. Anyone could then hang up a shingle and practice whatever they want, claiming First Amendment protection. They would not be able to prescribe drugs (not yet – but that could arguably follow) but they could prescribe homeopathy, herbs, or supplements – deregulation has given them an entire market of alternative health products to prescribe.

They might not be able to perform procedures like surgery or manipulation, but again, once professional licensure has been gutted, it’s easy to imagine it would eventually lose all its teeth.

The core issue here is that the law often has to balance various legitimate interests that may be at cross purposes, and no one interest is or should be considered absolute. Free speech is a vital and very important principle, but again that does not mean it needs to be or should be absolute. The current balance is thoughtful and probably pretty close to optimal. We enjoy highly protected free speech in this country, but there are specific narrow limits that are valid and do not threaten free speech more generally.

Also, as a society we need to recognize the value in expertise and professionalism. These do not exist in a vacuum, and require regulations and institutions that have standards and follow a valid process. Otherwise we have chaos. That, of course, is what the charlatans and the con artists want. They thrive in chaos, and they will always rail against legitimate protections as if they were a violation of precious freedoms. That is their narrative, and it unfortunately often works. I’m glad it did not work in this case.


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