We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment

INTRODUCTIONOn August 19, 2013, Governor Chris Christie of New Jersey signed a bill that prohibited licensed therapists in the state of New Jersey from using sexual orientation change efforts, also known as conversion therapy, to treat minors.1 Conversion therapy seeks to eliminate or reduce same-sex attractions in homosexual people and often involves prayer and psychological counseling.2 In the signing note, Governor Christie reflected that "[g]overnment should tread carefully into this area and I do so here reluctantly."3California and the District of Columbia have passed similar laws prohibiting the use of conversion therapy with minors.4 Recently, however, the Oklahoma legislature considered a bill that would shield sexual orientation change therapy from state intervention.5 Although the American Psychiatric Association declassified homosexuality as a mental disorder more than forty years ago, conversion therapy still has supporters in conservative and religious communities.6The national debate over sexual orientation change therapy highlights a difficult legal question: should legislatures be able to curtail the speech of therapists, who are licensed professionals, on a single topic in order to protect minors from treatment that the medical community does not support?7 Some believe that legislatures should have the power to limit speech in this way.8 Would the answer change, however, if the question was instead: should legislatures be able to curtail the speech of doctors, who are licensed professionals, on a single topic in order to protect minors from preventative medicine that the medical community supports?9The Florida legislature did not think so.10 On June 2, 2011, Florida Governor Rick Scott signed into law a bill that restricted licensed health care practitioners' ability to ask patients questions about firearm ownership.11 Supporters of the law do not believe gun ownership is a public health issue and stand behind the law as a protection of patient privacy.12 The medical community, however, considers gun ownership to be an important public health issue that should be addressed as part of routine preventative care.13Regardless of how one would answer these questions, one thing is clear: these laws implicate the First Amendment rights of professionals because they constrain "professional speech," or what professionals may say to clients in the course of their provision of individual services.14 Addressing this First Amendment issue can be difficult because topics that implicate professional speech rights, such as conversion therapy and gun ownership, are often fraught with partisan rhetoric and ideals that cloud the debate.15 Yet states must find a way to balance the right of professionals to advise their clients with the interest the state has in protecting its citizens and regulating professional industries.16Courts have provided little clarity as to the extent to which the First Amendment rights of professionals should be protected or balanced against the interests of the state.17 The U.S. Supreme Court has not provided much guidance on how to balance these competing interests.18 In the past two years, several circuits have tackled the issue of professional speech, with varying results.19 Some courts have held that professional advice does not even qualify as speech under the First Amendment, while others have found that professional advice receives the heightened First Amendment protection of intermediate scrutiny.20This Note argues that courts should apply intermediate scrutiny to professional speech regulations.21 Part I discusses general First Amendment principles that are relevant to understanding the nuances of recent federal appellate decisions on professional speech and the contours and history of the professional speech doctrine.22 Part II analyzes those recent federal appellate decisions on professional speech that have created a circuit split on the issue of what level of scrutiny to apply to regulations of professional speech. …