The First Amendment and professional-client speech

[Sanford Levinson]

One responsen to Nelson Lund's very interesting questions is that they all concern what many would define as "sexual harassment."  Eugene, of course, is the leading critic of much sexual harassment--especially that dealing with creation of "hostile environments"--as violations of the First Amendment.  In any case, I have little doubt that courts would uphold legislation forbidding doctors (or professors) from asking patients (students) about their sex lives or attempting to date them.  I'd be less confident if the state tried to criminalize all "non-professionally-related" conversations where the easiest response is, "I'd prefer not to discuss this with you" or "that's none of your #*%@ business."  I presume the Md. legislature couldn't bar doctors from including anti-gun literature in their waiting rooms, even if it could, arguendo, prohibit sexually-explicit literature.  If I'm correct, then I agree with Eugene that the proposed legislation is constitutionally dubious.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Nelson Lund
Sent: Sat 2/25/2006 11:28 AM
To: conlawprof at lists.ucla.edu
Subject: Re: The First Amendment and professional-client speech



I don't claim any expertise in the intricacies of First Amendment case
law. So I'm wondering, if this would be unconstitutional, would it also
be unconstitutional to forbid physicians from interrogating their
patients about their sex lives while treating them for unrelated medical
conditions? Or to forbid physicians from asking their patients whether
they might like to go out together on a date?  And does the First
Amendment give employers a right to ask their employees the same kinds
of questions?

Nelson Lund
George Mason



Volokh, Eugene wrote:

>       I'm inclined to say that the bill discussed below would violate
>the First Amendment, even given the likely greater latitude the
>government has in regulating professional-client speech.  Any sense,
>though, of just how much extra latitude has, and what the constitutional
>test for such speech restrictions would be?
>
>http://home.hamptonroads.com/stories/story.cfm?story=100053&ran=103354&t
>ref=po
>
>CHESAPEAKE - A pediatrician who asks a child's parent about firearms in
>their home could lose his or her license or be disciplined under
>legislation being considered by a Senate committee today.
>
>The bill would prohibit health care professionals from asking a patient
>about gun possession, ownership or storage unless the patient is being
>treated for an injury related to guns or asks for safety counseling
>about them. . . .
>
>       For a defense of the bill (which I find inadequate to justify
>the bill's constitutionality), see
>http://www.claremont.org/localliberty/archives/004686.html.  "The
>American Academy of Pediatrics does indeed have an opinion on guns--they
>should be banned. Contrary to what Dr. Ellwood says, the AAP does say
>guns are a bad thing to have around children. They want pediatricians,
>in the privacy of the exam room, to urge parents to get rid of their
>guns. A quick check of the American Academy of Pediatrics web site would
>have shown the reporter all of this. See the Summary and Recommendations
>section of this page, section 1B, about halfway down the page.
>
>       "With very few exceptions, a doctor's probing of a patient about
>guns in the home is a politically motivated question. That makes it an
>ethical boundary violation, which is unprofessional conduct. Doctors are
>forbidden to misuse the trust of their patients to advance a political
>agenda such as gun control."
>
>       Eugene
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
> 
>

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060225/4b7118d7/attachment.html