Up for debate: Is electronic practice speech or conduct?


Stimulated by technology advancements and multiplied by government shutdowns due to the COVID-19 pandemic, society has experienced virtual access to almost every form of commerce and professional practice. Consumers enjoy the benefits of shopping online, ordering grocery delivery, watching on-demand movies and programming, and engaging in social interactions with friends and family from the confines of their living space. To be economically competitive and to provide access to care to a much wider audience, professional services have also evolved to a virtual delivery mode. Consumers of professional services now have access to licensees via virtual platforms.

Counsel's column

Virtual professional practice has brought added attention to many legal concerns implicated by practice without physical presence. The fundamental issues to consider include whether the actions constitute practice as defined, and if so, where practice occurs. In addition to these initial inquiries (which are not easily answered), recent litigation has focused on the fundamental right to free speech guaranteed by the U.S. Constitution.

photograph of Dale Atkinson
Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.

The Constitution’s First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Probably the most noteworthy article of the Bill of Rights, the First Amendment guarantees the right to freedom of speech and has been the subject of countless lawsuits. The right to freedom of speech is not unfettered, as courts have upheld various statutes that limit speech in defined and narrow circumstances. For example, obscenity, child pornography, and what have been characterized as “fighting words” are subject to limitations.

In the realm of professional practice, legal disputes that question what constitutes conduct and what constitutes speech are becoming more commonplace.

In the realm of professional practice, legal disputes that question what constitutes conduct and what constitutes speech are becoming more commonplace. These legal challenges subjecting a state-based regulatory system to First Amendment scrutiny are a relatively recent phenomenon. Historically, lawsuits have shed some light on the authority of government to limit (or not limit) professionals from engaging in certain specific speech within the context of professional practice. For example, the 9th U.S. Circuit Court of Appeals upheld the California statute that prohibited psychotherapists from engaging in sexual orientation change efforts with minors. (Pickup v. Brown, 9th Cir 2013). Conversely, the 11th U.S. Circuit Court of Appeals struck down a Florida law that prohibited physicians from asking patients about firearm ownership. (Wollschlaeger v. Governor of Florida, 11th Cir. 2017). The U.S. Supreme Court has pontificated on these concepts, finding that speech is incidental to the conduct of the profession while engaging in practice. This “incidental” finding somewhat eliminated First Amendment analysis in this previous litigation.

More recently, two cases are instructive regarding the issue of the First Amendment as related to professional practice. Both cases have been couched in terms of speech versus conduct. At what point is professional practice deemed to be speech and therefore subject to First Amendment scrutiny?

This question, historically dormant, has resurfaced and is being considered by multiple courts. In one case, the 5th U.S. Circuit Court of Appeals has ruled that a veterinarian is entitled under the First Amendment to challenge the requirement that an in-person examination must be conducted in order to establish a valid veterinary–client/patient relationship. The veterinarian, a 40-year practitioner in Texas, conducts his practice solely online and has patients in many states and countries. He does not perform in-person examinations of the animals. The Texas Board of Veterinary Medical Examiners sanctioned him as a result, and he challenged the board’s actions under the First Amendment. The 5th Circuit remanded the matter to the district court that had previously dismissed the case on grounds that the First Amendment did not apply. On remand, the lower court will address the issue of whether the veterinarian’s actions constitute conduct or speech. (Hines v. Quillan, 220 U.S. App. LEXIS 37725 5th Cir. 2020).

In another case, the California Cemetery and Funeral Bureau issued a citation to a business that employs end of life doulas (individuals who prepare family members for home funerals) and also threatened the business with fines of up to $5,000/day for engaging in and holding itself out as a funeral director. The business commenced litigation, arguing that it does not hold itself out as a funeral director and that the threatened actions of the bureau violate its rights of free speech under the First Amendment. The court granted a preliminary injunction in favor of the business. That injunction prohibits the bureau from enforcing the practice act against the business pending the outcome of a trial on the merits. (Full Circle of Living & Dying v. Sanchez, 2020 U.S. Dist. LEXIS 243980).

These two recent cases have not yet been decided on the merits, meaning that the current judicial rulings are based on procedural motions. In both cases, if the courts determine that the activities of the businesses constitute speech, the issues will eventually be litigated under the First Amendment. Because First Amendment cases involve a fundamental right (free speech), any government restriction on those rights must be substantiated under a strict scrutiny analysis. Strict scrutiny analysis means that any government limitations or prohibitions must be based on substantial government interest(s), the limitation must advance that interest(s), and the limitation must be narrowly tailored to the least restrictive means. Strict scrutiny is the most difficult burden to meet.

These cases have relevance to the social work community. As challenges to government regulatory schemes escalate, a potential plaintiff is bound to ask whether mental health services constitute conduct or speech. This is an important question, as illustrated above. In a climate of deregulation, in which professional licensure is perceived as a barrier to economic growth, the least restrictive means portion of the test under a strict scrutiny analysis will likely become the focus of a legal inquiry. Social work regulators must not only be in tune with why government regulation exists, what the roles of the board and board members are, and why public protection is important, but also maintain complete separation between trade and regulation.

Distinguishing between conduct and speech will continue to be the focus of challenges to regulatory structures. The First Amendment, which protects the most sacred right of free speech, will be at the center of these discussions. When interpreting the scope of practice and rights of both licensees and clients, social work regulators will need to think about what differentiates conduct and speech.