The First Amendment and professional-client speech

Sat Feb 25 12:52:31 PST 2006

    1)  People's sex lives kill about as many people as do firearms.  If
one focuses just on accidents (and even throws in suicides and homicides
by minors), the number for sex is probably at least five times that for
firearms.  Now it's true that not all medical conditions are potentially
connected to people's sex lives, though many are, including some that
one might not expect (liver disease, oral cancer, even occasionally
heart disease).  But if doctors decide that, in addition to treating one
condition, they want to warn people about other medical harms that many
patients expose themselves to, I don't quite see why it would be
permissible for the government to ban such warnings.

    2)  Sandy suggests, by analogy to sexual harassment law, that
questions by doctors or professors (said to patients or students) about
the listener's sex life, or invitations to dates, would be
constitutionally unprotected.  This, it seems to me, further shows the
slippery slope danger that I've often noted about hostile environment
harassment law.  For all its faults, hostile environment harassment law
is at least limited to *severe or pervasive* and *unwelcome* statements.
A single request for a date is generally not punishable harassment; nor
is a single question about one's sex life.  Moreover, for all its
faults, hostile work/educational environment harassment law is at least
premised on the notion that the listener is being imposed on because
economic necessity forces the listener to stay at the same workplace or
in school.  if a doctor says things that the patient dislikes, then in
most situation it seems to me that any such economic pressure is
missing; it's not that hard to change doctors.  (One can imagine
situations in which this isn't so, but generally speaking one can change
one's doctor with relatively little trouble.)  

    So I would hope that a flat ban on doctor-patient questioning about
sex, or date requests, would be unconstitutional; and likewise even for
professor-student statements, at least absent repetitive questioning
when the speakers knows the inquiries are unwanted.  (I've argued before
that speech said to someone who clearly doesn't want to hear more would
indeed often be unprotected, under a broadening of the Rowan v. Post
Office Dep't theory.)  The government acting as employer, of course,
would certainly be able to do much more, but we've been speaking here of
the government as sovereign.

    3)  Would a ban on date requests by doctors, or even by professors
(again, assume the government is acting as sovereign), violate Lawrence
v. Texas?  It seems to me that a flat prohibition on doctor-patient sex,
even when the doctor is a dentist, podiatrist, and the like, would
indeed be unconstitutional under Lawrence; if that's so, then it seems
to me that a prohibition on date requests would impose an
unconstitutional burden on that right (perhaps a requirement that the
requests be said outside the doctor's office wouldn't be much of a
burden, though it would still pose First Amendment problems).  A ban on,
say, psychiatrist-patient sex might be justifiable on an undue influence
theory, but I doubt that this would extend to all doctors, or even most.
Whether a ban on professor-student sex -- or for that matter
employer-employee sex -- would be justifiable, despite Lawrence, on an
undue influence theory seems like a harder question; what do others on
the list think?

    Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Saturday, February 25, 2006 11:35 AM
To: Nelson Lund; conlawprof at lists.ucla.edu
Subject: RE: The First Amendment and professional-client speech

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
<http://home.hamptonroads.com/stories/story.cfm?story=100053&ran=103354&
t> &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
>_______________________________________________
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