Thread by @dilanesper

Inspired by a recent @whignewtons podcast, I want to talk about a part of the "conversion therapy" case that I think legal conservatives have been way too dismissive of-- professional speech.

To tee this up, let's talk about my profession, lawyers. We write and talk for a living

There are all sorts of restrictions on the content of lawyers' speech. In a couple of areas, we get some First Amendment protection, though less than ordinary people get. In other areas, nobody even thinks the First Amendment applies to our speech.

So let's take the former categories, where lawyers get SOME First Amendment protection. We get some protection for our advertising, and we get some protection for our out of court statements on behalf of clients during pending cases.

So first, advertising. If the Supreme Court followed a "history and tradition" model, our advertising would not receive any protection at all. State bars routinely barred lawyers from placing mass market advertisements beyond a shingle or a yellow pages listing.

There were no lawyer billboards before the 1970's. No guy in a suit interrupting the daytime soap operas to tell viewers he would "fight for them". That whole enterprise was prohibited by bar rules.

Bates v. State Bar of Arizona, in 1977, changed that.

But even under Bates, my profession is not allowed the same leeway in advertising as other service providers. Plumbers, repairmen, and real estate brokers can just solicit business. But SCOTUS ruled lawyers can be barred from soliciting clients via direct mail after accidents.

The point is, we lawyers don't have the same rights to talk that everyone else does.

Another example of this is the Gentile v. State Bar of Nevada rule, which involves talking to the press during pending cases. Normies can talk unfettered about pending cases. We can't.

We aren't allowed to make statements that have "a substantial likelihood of materially prejudicing an adjudicatory proceeding". If you are a podcast host, a journalist, or a celebrity, you can make such a statement. But we lawyers aren't allowed to. That was upheld by SCOTUS.

But those are actually the areas where lawyers HAVE some First Amendment rights. In fact, there are many things the disciplinary rules, license restrictions, and statutes tell us not to say that haven't even been trimmed back by the First Amendment.

For instance, we are not allowed to reveal any client secrets, or information provided to us under a discovery protective order. It doesn't matter if the information is of great public concern. We aren't allowed to do it. We can lose our license or be held in contempt if we do.

We are also limited in what we say about the law. We can only advocate (1) positions consistent with the law or (2) positions that we, in good faith, believe a court will adopt as a change in the law.

I'll give you a concrete example of this-- January 6.

I have no idea what was in Trump lawyers' hearts regarding 1/6 legal theories they advanced. But they didn't have a 1st Amendment right to express them in court proceedings-- we know this because many of them got disbarred for doing it. Because they violated the rule I set forth.

And you can say, "that's because they are in court", but it's not just in court. We also aren't allowed to tell our clients legal theories we believe in but which aren't supported by existing law are correct, and if we say them in public, we are subject to the Gentile standard.

Meaning that if we say them in public and they have a substantial likelihood of materially prejudicing the proceeding, we can be brought up on bar discipline for that as well!

And basically nobody contests any of this.

To be clear, there's one very small First Amendment area (where I have, actually, done a little work in the past) involving criticizing judges in open court-- cases like Standing Committee of Professional Discipline v. Yagman suggest there's some First Amendment rights there.

But as a broad-strokes statement, what I am telling you is clearly the law-- lawyers have a much narrower scope of First Amendment protection than other people, and many of our acts of writing and oral expression are entirely unprotected and subject to government bans.

So if that's the law, WHY is that the law? You can babble something about lawyers being "officers of the court", but that's a slogan. We're clearly working for our clients, not the government and the court system.

What's actually happening is our speech is also our WORK PRODUCT.

We are literally selling our speech, as the product. And when your speech is the product, sold one on one to a particular consumer (unlike mass communication, which is obviously fully protected by the First Amendment), there are serious consumer and public protection issues.

In the same way the government can stop a plumber from installing leaky pipe, or stop a car dealer from selling a lemon, the government can regulate the product that lawyers are selling to individual customers. And that product happens to be our speech.

So now let's get back to conversion therapy. But to do that let's take one more detour, to a case from 2018 called NIFLA v. Becerra. That involved California regulation of "crisis pregnancy centers".

The Supreme Court struck down what was clearly a consumer protection regulation-- California requiring the centers to tell customers they didn't provide abortions and where they could go to get one-- as "compelled speech".

Now, let's be clear here-- if this were any other product (not a speech product), SCOTUS would not handle NIFLA the same way. Nobody but hard-core minimal state libertarians thinks the government can't require non-misleading product labels or product warnings.

Here's the product analogue to NIFLA-- let's say a lot of people are using skin condoms to stop disease, and the government requires skin condom makers to include a warning that they do not fully prevent STD transmission and that they may purchase latex condoms for that.

I think it's perfectly clear that regulation should pass muster under the First Amendment-- yes, it's "compelled speech", but it's a consumer protection measure to prevent the seller from misleading the buyer and directing the buyer to the product that suits the intended use.

But because our SCOTUS is frankly sympathetic to pro-lifers, they struck down the regulation in NIFLA and rejected arguments about "professional speech" to do it.

But really, the provision of medical advice to pregnant women IS kind of like the provision of legal advice!

The service being provided is the speech, and there are serious consumer and public protection issues that are raised by the provision of that speech.

It's not the same as giving a public speech against abortion. The speech is a product here!

So now back to conversion therapy. I have said already I do think Colorado's statute is vague. And BTW, Gentile struck down a portion of a lawyer's speech rule as vague. Void for vagueness applies here!

But it's a mistake to treat "conversion therapy" as the same as a political speech about trans people. It's a product.

We license therapists. We tell them all sorts of things they can and can't say.

For instance, a therapist has every right to advocate for legal assisted suicide in the public sphere. But a therapist who tells a patient "I think you should end it all" can be disciplined. And properly so!

Just like the state has an interest in what I say, the state has an interest in what therapists say to their patients.

Another thing to consider is tort liability. Under New York Times v. Sullivan, normies and journalists face strict limits on lawsuits based on speech.

But we lawyers can be sued by clients for our speech to them or on their behalf, and we don't have a First Amendment defense against such malpractice lawsuits. Again, this is entirely proper.

And, well, therapists can be sued for bad advice too! Properly!

The point is, we really do treat these forms of professional speech as products. We don't apply all the rules that make it almost impossible to impose tort liability, administrative rules, or civil or criminal sanctions to speech, to professional speech.

Now to be clear, this isn't an argument that necessarily means that talk therapy receives no constitutional protection at all. As I said up top, lawyers do receive limited First Amendment rights, when such rights do not interfere with consumer and public protection.

Maybe for similar reasons talk therapists still have First Amendment rights in some contexts with respect to the product they sell. I'm open to that.

But the notion that "professional speech" is to be treated by the exact same rules as a political speech seems wrong to me.

Indeed, it's not only wrong; it's clear SCOTUS doesn't actually do it. It just wanted a weird crisis pregnancy case to come out a certain way so it screwed up its doctrines to do it.