James Madison
Senior Member
http://www.washingtonpost.com/opinions/revoke-the-license-of-any-doctor-who-opposes-vaccination/2015/02/06/11a05e50-ad7f-11e4-9c91-e9d2f9fde644_story.html
After these few examples the author then proceeds to make the argument, which is below.
As a general matter, the government is prohibited from restricting speech on the basis of its content. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Alvarez, quoting Ashcroft v. American Civil Liberties Union, 535 U. S. 564.
When the government's regulation, law, or action taken in regards to speech falls within several well recognized exceptions to the 1st Amendment Free Speech Clause, then the Court is likely to uphold the law, regulation, restriction or action taken by the government in response to the speech. Those exceptions are true threats, slander, libel, speech advocating for, and likely to incite imminent lawless action, obscenity, speech necessary to a crime, child pornography, fraud, and speech presenting some "grave and imminent threat" the government has the authority to prevent.
Here, the author is seeking to revoke the license of a doctor who ventures a medical opinion and such opinion is not only false but if acted upon by a patient/people in society, could result in adverse health consequences for the patient/people and others. In other words, the author isn't advocating for revoking the license on the basis the speech is false but also on the potential communicative impact the speech may have for patients/society. I think then the Court isn't likely to apply strict scrutiny, which improves the likelihood of any revocation of a doctor's license surviving a review by a court.
There isn't a lot of guidance by the judiciary on the limits of professional-client speech but the government has imposed liability for negligent advice, negligent predictions, which otherwise would be constitutionally protected as opinions. Of course, there is also the interesting issue of when a statement by a doctor regarding a medical procedure is a false statement. At what point does the statement by a doctor regarding a medical procedure constitute as a false statement? What is needed to render the statement false? What is the guiding rule or principle for determining when a statement is false?
A 3 justice concurrence said the following in Lowe v. SEC, 472 U.S. 181 (1985):
Unfortunately some doctors...say that vaccines cause autism, as in the famous case of Andrew Wakefield, whose study drawing the link has been retracted. Or that measles isn’t that bad, so your child can skip the shots, as Jack Wolfson, a cardiologist in Arizona, says, adding that “the facts” show vaccines to be full of “harmful things” like “chemicals"....vaccines cause “permanent disability or death,” in the words of Bob Sears, a pediatrician in California.
After these few examples the author then proceeds to make the argument, which is below.
Doctors who purvey views based on anecdote, myth, hearsay, rumor, ideology, fraud or some combination of all of these, particularly during an epidemic, should have their medical licenses revoked...
But a doctor is not just another person with First Amendment rights to free speech. When a doctor tells you not to vaccinate, it is not the same as when a layperson says the same thing. And when a doctor ignores the evidence to claim that the measles vaccine will harm your child, it is not the same as when your bartender or hairdresser says so. Physicians’ speech invokes medical authority, so when they speak, patients tend to listen.
Because lives hang in the balance, medical speech is held to a higher standard. A doctor must consider the public health and patient good in all that he says in his role as an expert...
Counseling against vaccination is exactly that kind of misconduct. The science is unimpeachable: Vaccines do not cause autism; measles is dangerous and contagious; inoculating against the disease is neither pointless nor riskier than abstention...
That is why medical speech is subject to scrutiny by a doctor’s peers and can be curtailed by state licensing boards. My home state of New York, for instance, warns doctors that they may not use speech that is “false, fraudulent, deceptive, misleading” or relies on the use of “testimonials.” Violations may be punished by revoking a medical license. Those whose misinformation leads to harm can be charged by a patient, doctor or other health-care professional;
But a doctor is not just another person with First Amendment rights to free speech. When a doctor tells you not to vaccinate, it is not the same as when a layperson says the same thing. And when a doctor ignores the evidence to claim that the measles vaccine will harm your child, it is not the same as when your bartender or hairdresser says so. Physicians’ speech invokes medical authority, so when they speak, patients tend to listen.
Because lives hang in the balance, medical speech is held to a higher standard. A doctor must consider the public health and patient good in all that he says in his role as an expert...
Counseling against vaccination is exactly that kind of misconduct. The science is unimpeachable: Vaccines do not cause autism; measles is dangerous and contagious; inoculating against the disease is neither pointless nor riskier than abstention...
That is why medical speech is subject to scrutiny by a doctor’s peers and can be curtailed by state licensing boards. My home state of New York, for instance, warns doctors that they may not use speech that is “false, fraudulent, deceptive, misleading” or relies on the use of “testimonials.” Violations may be punished by revoking a medical license. Those whose misinformation leads to harm can be charged by a patient, doctor or other health-care professional;
As a general matter, the government is prohibited from restricting speech on the basis of its content. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Alvarez, quoting Ashcroft v. American Civil Liberties Union, 535 U. S. 564.
When the government's regulation, law, or action taken in regards to speech falls within several well recognized exceptions to the 1st Amendment Free Speech Clause, then the Court is likely to uphold the law, regulation, restriction or action taken by the government in response to the speech. Those exceptions are true threats, slander, libel, speech advocating for, and likely to incite imminent lawless action, obscenity, speech necessary to a crime, child pornography, fraud, and speech presenting some "grave and imminent threat" the government has the authority to prevent.
Here, the author is seeking to revoke the license of a doctor who ventures a medical opinion and such opinion is not only false but if acted upon by a patient/people in society, could result in adverse health consequences for the patient/people and others. In other words, the author isn't advocating for revoking the license on the basis the speech is false but also on the potential communicative impact the speech may have for patients/society. I think then the Court isn't likely to apply strict scrutiny, which improves the likelihood of any revocation of a doctor's license surviving a review by a court.
There isn't a lot of guidance by the judiciary on the limits of professional-client speech but the government has imposed liability for negligent advice, negligent predictions, which otherwise would be constitutionally protected as opinions. Of course, there is also the interesting issue of when a statement by a doctor regarding a medical procedure is a false statement. At what point does the statement by a doctor regarding a medical procedure constitute as a false statement? What is needed to render the statement false? What is the guiding rule or principle for determining when a statement is false?
A 3 justice concurrence said the following in Lowe v. SEC, 472 U.S. 181 (1985):
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."
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."
