I posted previously about Pickup v. Brown here. As I mention in that post, I think that the result was correct, although some of the court's test language for determining whether professional speech is subject to regulation may be problematic.
Sherman and McNamara strongly disagree with the outcome in Pickup, and have filed an amicus brief in support of an en banc rehearing of the case in the Ninth Circuit. Their argument: the government should not be able to regulate speech simply by labeling it as "conduct." They write:
Under the Ninth Circuit’s ruling, governments could regulate this speech however they wanted, as long as they relabeled it “conduct.”
. . .
But whether or not something is protected by the First Amendment does not hinge on whether we decide to call it “speech” or “treatment.” It hinges on whether or not the government is regulating something that communicates a message. Brain surgery and electroshock therapy do not, but talk therapy — whatever else it does — clearly communicates a message.
They highlight the importance of their argument with what they argue is a similar example:
Mr. Cooksey is a resident of North Carolina who was recently ordered by that state’s dietitian licensing board to stop offering dietary advice through his Web site. The board’s reasoning? Dietary advice is not speech, it’s the “conduct” of nutritional assessing and counseling.
Sherman and McNamara have a point when it comes to the possible abuse of the term, "conduct." As the Ninth Circuit held, the therapy in Pickup v. Brown was subject to a great deal of regulation because the ban on the therapy was a regulation of "professional conduct" that had an incidental effect on speech. The court noted that a state could ban the use of a drug and that this would be completely within its power, even if there would be an incidental restriction on speech, namely, that doctors could not give recommendations that their patients use the drugs. The court did not go into very much detail as to how "professional conduct" should be defined.
I think that Sherman and McNamara exaggerate this concern, however, and they do so to the point where their argument becomes misleading.
One initial problem I have with their argument is that the question of whether talk therapy is speech or conduct is actually far less clear than they seem to make it. Even though talk therapy consists of communication, it seems that this communication has a unique impact on patients that takes place at a level other than one's listening to and reasoning about speech.
A larger problem with the editorial is that it overstates the breadth of states' ability to regulate speech. States cannot simply label speech as "conduct" and thereby regulate it without any First Amendment problems. The court takes into account speech by professionals to clients, notes that this speech can be regulated, but concludes that this speech is still protected by the First Amendment, albeit a somewhat diminished level of protection. Moreover, speech by professionals to the public about matters, including matters relating to their profession, receives full First Amendment protection.
Under that last point, the Cooksey case seems to be almost certainly incorrect based on the reasoning in Pickup, both because the speech is to the public at large (since Cooksey is characterized as a blogger who is blogging this advice), and because there is no professional-client relationship that might reduce the scope of the overall message.
Even if there were a one-on-one relationship in the Cooksey scenario, Cooksey's advice seems to be directed towards people's reasoning processes in that it urges people to take some action -- it does not seek to change those people's psychological makeup directly, as talk therapy would.
While I think that Pickup v. Brown is a notable First Amendment case, and while some of its reasoning raises questions, Sherman and McNamara's editorial oversimplifies the issue and makes analogies that don't hold up under scrutiny.
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