Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause public harm long before regulatory processes can gear up to address it.
This article examines how these two trends interact in the fields of health-care regulation and legal practice. It looks at how these forces work together both to create new regulatory problems and to shape the potential government responses to those problems. It analyzes the Supreme Court’s developing caselaw on professional speech and predicts how the Court’s jurisprudence is likely to shape current legal challenges in law and medicine. The Article further examines the regulatory challenges posed by the change in scale generated by massive digital platforms and the introduction of artificial intelligence. It concludes by recommending ways in which government regulators can meet the new challenges posed by technological development without infringing on protected speech. The crux of our proposal is that incremental change in the traditional state regulatory process is insufficient to meet the challenges posed by changes in technological scale. Instead, it is time to ask bigger questions about the underlying goals and first principles of professional regulation.
free speech, First Amendment, professional speech, commercial speech, law practice, attorney licensing, medical licensure, telemedicine, artificial intelligence, and FDA regulation
U.C. Davis Law Review (forthcoming, 2022)
Robertson, Cassandra Burke and Hoffman, Sharona, "Professional Speech at Scale" (2022). Faculty Publications. 2097.