I don't have a position about the constitutionality of this kind of speech restriction on doctors, so am not arguing a conclusion. I don't know enough to have a conclusion. Eugene's qualified response makes me believe the question is not slam-dunk already answered, so probably even he can make arguments for and against its constitutionality. The arguments against it are obvious so not as interesting. It seems plausible that such restrictions might be permissible because:
* Doctor's licenses are conditional on complying with standards set by the legislature (or by a body designated/delegated by the legislature). * There seem to be few areas where the courts have constrained the legislature's ability to set such standards or make definitions. Abortion is the glaring example, in which the patient's (not the doctor's) right is involved. * I'm guessing that the state can license what Eugene and I think is junk science, and can refuse to license good science. As far as I know, there's no constitutional requirement for the legislature *not* to license e.g. phrenology because it doesn't meet somebody's standards of "science." * Some body must have the authority to define the limits of "medicine" and declare what is outside the bounds of the state medical license. That would seem to be the legislature within the constitutional limits above. * It seems doctor's speech for the purpose of diagnosing patients could be considered treatment and liable to regulation, hence the homosexual-treatment example. To undo that would require a court substituting its judgment for the legislature's, which would fall under what standard of review? * To strike down a gun-question ban, the court would either have to second guess the legislature by declaring that guns do equal medicine, or alternately decide that the doctors' right to ideological speech falsely posing as medicine outweighs the legislature's interest in regulating medicine. On Mon, Jan 21, 2013 at 9:47 PM, Volokh, Eugene <[email protected]> wrote: > Well, the question was asked “in First Am[endment] > terms.” (To quote the earlier post to which I was responding, “So the > state saw a problem with doctors imposing ideological values in the**** > > name of medicine, and limited doctor's speech to prevent that. The AMA > was on the other side of the fence in that argument. But how is it > different in First Am terms?”) If the argument isn’t for a government > policy, that’s fine, but it sounded to me like it was an argument for a > government policy.**** > > ** ** > > As to a doctor’s trying to sell you tires, I would think > that would be protected commercial advertising under the Court’s First > Amendment precedents – and that’s even though commercial advertising is > generally *less* protected than other speech. So again I’m not sure how > the tire promotion analogy is any more of a support for a restriction on > doctors’ questions about guns than the restriction on > sexual-orientation-change therapy of minors would be.**** > > ** ** > > Eugene**** > > ** ** > > James Heath writes:**** > > ** ** > > Eugene wrote:**** > > ** ** > > > "I'm not sure how that supports the constitutionality of a ban on simply > asking questions -- questions that might well lead to perfectly reasonable > advice, though they might also lead to unsound advice -- of adult patients." > **** > > ** ** > > First, I am not arguing for a government policy on the subject. I do think > that doctors are interjecting politics into their medicine so do not > sympathize with their complaints that politics are being interjected into > medicine. I think they are abusing their position to impose a policy > preference that has the slimmest nexus to their trade. Global warming will > affect water supply but I don't want to hear a lecture about it from the > guy unplugging my toilet. That's not his job. **** > > ** ** > > From the above, it sounds like the constitutionality of defining doctors' > speech as "treatment" and restricting it is unresolved or vaguely > contoured. Does the constitutionality depend on the scientific merits? And > if so, as judged by the legislature or by the courts?**** > > ** ** > > If a doctor asks what brand tires you have on your car maybe that's free > speech. But if it turns out Pirelli is paying doctors to ask the question > as part of a "push-polll" advertising campaign, most people might think a > speech restriction would be in order.**** > > ** ** > > Who would be the arbiter of whether car tires are a legitimate "health > issue" and protected speech? **** > > ** ** > > **** >
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