Court Majority Wisely Rejects Expansive Application of Professional Speech Doctrine

A positive development emerged from the Supreme Court’s invalidation of two compelled notices in a California law that required pro-life pregnancy centers to provide notices about the availability of abortion services. That positive development was the Court’s rejection of an emerging concept in the lower courts known as the “professional speech doctrine.”

The Court ruled 5-4 in National Institute of Family Life Advocates v. Becerra that the compelled notices for licensed and unlicensed clinics violated the First Amendment either because they were content-based compelled speech restrictions or unduly burdensome. The 9th Circuit below had justified the disclosure requirement for licensed clinics by claiming that the requirement impacted only “professional speech.” The appeals court wrote that “professional speech is speech that occurs between professionals and their clients in the context of their professional relationship.”

As I explained in a previous piece, the Court needed to heed warnings about this doctrine because if applied expansively it could limit a whole range of speech. Justice Clarence Thomas heeded those warnings and recognized that the notices required in the California law “in no way relates to the services that licensed clinics provide.” Justice Thomas – who at times is a most forceful defender of the First Amendment –cast significant doubt on the professional speech doctrine.

“But this Court has not recognized ‘professional speech’ as a separate category of speech,” he wrote. “Speech is not unprotected merely because it is uttered by professionals. This Court has been reluctant to mark off new categories of speech for diminished constitutional protection.”
Thomas concluded that “[t]his Court’s precedents do not recognize such a tradition for a category called “professional speech.”

While some may view the case through the prism of the abortion controversy and a battle between pro-life and pro-choice, the case should be known for the majority’s rejection of the dangerous limitation of speech under the label of “professional speech.”

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