King v. Governor of the State of New Jersey: Applying the First Amendment to Laws Regulating Physician Speech

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

Last week’s decision by the U.S. Court of Appeals for the Third Circuit in King v. Governor of the State of New Jersey, provides an insightful addition to the growing body of case law examining the clash between the state’s power to regulate clinical practice andfree speech.

Although the common law of informed consent arguably implicates the First Amendment rights of physicians and other health professionals, the conflict between the state’s power to regulate health care and free speech has become more apparent in recent years as state legislatures have increasingly enacted laws prescribing what physicians and other clinicians can and cannot say. Such laws are especially common with respect to abortion, but state legislatures have also required physicians to provide specific information about breast cancer treatments, or refrain from asking patients about gun ownership.

Not surprisingly, these laws are frequently challenged on First Amendment grounds. Some courts, relying on the Supreme Court’s cursory treatment of a First Amendment claim in Planned Parenthood v. Casey, have held that laws pertaining to what is said in the course of treatment regulate clinical practice rather than speech, and are, therefore, not subject to heightened review under the First Amendment. That was essentially the approach followed by the Ninth Circuit in Pickup v. Brown, which upheld a California law banning sexual orientation change efforts (SOCE) for minors, and the Eleventh Circuit in Wollschlaeger v. Governor of the State of Florida, which upheld a Florida law limiting physicians’ ability to inquire about their patients’ gun ownership.  As a result of these decisions, it became easier for states to regulate the speech of physicians than the speech of commercial purveyors of deadly products. 

In a unanimous decision written by Judge Smith, the King Court demolished that paradox, holding that professional speech warrants the same protection granted to commercial speech. Reviewing New Jersey’s ban on SOCE for minors, the court began by dismissing the fiction that laws regulating professional practice do not regulate speech. “Simply put,” Judge Smith wrote, “speech is speech.” That does not mean, he explained, that such laws should be subject to strict scrutiny, as that would undermine the state’s ability to protect patients. Still, if states are to be given wider latitude in regulating professional speech than other forms of speech, the court must find that the law “directly advance[s] the State’s interest in protecting its citizens from harmful or ineffective professional practices and [is] no more extensive than necessary to serve that interest.”

Applying that standard to the facts, the Third Circuit had little trouble upholding the statute. In so doing, the court noted that most relevant professional organizations concurred as to the harmful effects of SOCE. The court stated that “Legislatures are entitled to rely on the empirical judgments of independent professional organizations.” Nor need legislatures wait until all empirical questions are settled. But there must be a plausible basis for assuming that the law will protect patients.

The King decision does not answer all questions. Nor will it be the last word about the clash between the First Amendment and the regulation of professional speech. But by rejecting the extremes of strict scrutiny and rational basis review, and by putting the question of whether state laws regulating professional speech actually protect patients at the center of the inquiry, the Third Circuit has helped shed some needed light and common sense on an increasingly common conflict.