Urganch axborat texnologiyalar texnikumi

Distinguishing Private Speech
Courts134 and scholars135 have analogized professional speech to commercial speech. But, I argue, the analogy is tenuous; the underlying speech interests are fundamentally different. The content of professional speech, distinctively, is defined by the professional’s connection to the knowledge community.
Most prominently perhaps, Halberstam and Post each propose and defend models that serve as a basis for the analogy. In doing so, however, Halberstam reconceptualizes commercial speech doctrine itself; Post cautions against its wholesale adoption. Halberstam advances the “bounded speech institutions” model, and Post advances a professional speech variation of the democratic self-government model. Both focus on the structure of the communication.
The doctrinal starting point for assessing commercial speech remains the canonical, though increasingly criticized,136 Central Hudson test.137 The Court has ostensibly relied on this doctrinal basis in its expansion of First Amendment protection for commercial speech.138 Writing at the turn of the twenty-first century, Halberstam observed that the classic position of minimal protection of commercial speech was beginning to appear in flux.139 Since then, there has indeed been a considerable expansion of First Amendment protection for commercial speech. The Court now affords what comes close to strict scrutiny review in commercial speech cases.140
But the extent of protection should not be the primary reason to analogize the two types of speech unless doctrine is tethered to theory. This requires “a deeper kinship between the two forms of communication.”141 For Halberstam, this deeper kinship is rooted in the “paradigm of bounded speech institutions.”142 Both professional and commercial speech in this model can be seen as “relational” or “bounded speech institutions,” though Halberstam acknowledges that “the relationship between physician and patient and the duties attendant to that relationship are substantially deeper than those between vendor and purchaser.”143 He makes an (ostensibly descriptive) institutional or structural argument, suggesting that
the Court may be seen as implementing a constitutional theory of bounded speech institutions, based on its perception of various socially defined relationships between interlocutors and, accordingly, rendering contextual judgments about the extent of government intervention that is both necessary for and compatible with the preservation of the particular institution.144
With respect to both professional and commercial speech “[t]he boundaries of the discourse . . . may be policed, but, conversely, as long as the speaker remains within the boundary of the institution, the speaker would be engaged in protected speech.”145 In other words, state regulation serves a definitional purpose—mapping the boundaries of discourse. While speakers remain within those bounds, interference with their speech is impermissible.146 The so-bounded communicative relationships are subject to “contextual First Amendment review that is specifically centered around the social relation, as opposed to an abstract review such as that traditionally applied to the street-corner speaker.”147 Under this model, in both the professional and the commercial speech contexts, “[t]he government may neither suppress the speech entirely nor remodel the institution to its liking.”148
Conceptually, it seems plausible to view both commercial and professional speech in this way. But, while I agree with the differentiation between speech within and outside of a bounded discourse and with awarding First Amendment protection accordingly, I do not embrace the suggested parallel between commercial and professional speech. The “bounded speech institutions” model assumes the equal position of professional and commercial speech in contrast to political or private speech, which is traditionally unbounded.149 However, it does not sufficiently account for the differences between professional and commercial speech. In order to do so, such a structural view is not enough.150 The bounded discourse approach encompasses the individual professional-client relationship, but, in doing so, undervalues the role of the professional’s connection to the knowledge community. In terms of content, the individual professional serves as a conduit for the knowledge community’s insights.
The content of the communication and its relation to the body of knowledge possessed by a knowledge community is distinctive in the professional speech context. So is the imposition of professional malpractice liability and its relation to the professional standard of care. This unique relationship with the knowledge community demands a thicker account of the communication. Thus, the analogy falls short if it is based solely on the structural “bounded speech institutions” model. It explains why the state may impose liability as a structural boundary, but it does not define the content of the boundedness. This makes Halberstam’s model conceptually useful, but ultimately incomplete. To establish a theoretical basis for evaluating professional speech, this model should be supplemented with the theory of knowledge communities.
Post, in setting up the commercial speech-professional speech analogy, focuses on three distinctive features of commercial speech: first, the concern about the flow of information to the public; second, the value attached only to truthful, non-misleading information (and, consequently, the application of content- and viewpoint-based regulations); and third, the permissibility of disclosure requirements based on the emphasis on the public’s right to receive truthful and non-misleading information.151 These three features, in Post’s assessment, closely track the concerns in the professional speech context. In contrast to speech as part of public discourse, the focus of commercial speech, like that of professional speech, is its informational value.152 The knowledge-enhancing character of both types of speech provides the link to the democratic self-government values underlying the First Amendment.153
However, Post offers two distinctions between commercial speech and professional speech, which complicates the analogy.154 The first concerns dissemination of commercial information to the public at large as opposed to the dissemination of professional information only to the client. In an age of sophisticated, highly personalized advertising, however, this characterization of the dissemination of commercial speech may no longer be descriptively accurate.155 The second distinction lies in the presupposed equality of the speaker and the listener in commercial speech and their relative inequality in professional speech. Of course, extensive psychological research on the part of advertisers makes the speaker and the listener unequal in the commercial speech context as well. Product placement, subconscious messaging, and the like give a distinct advantage to commercial speakers over their audiences. The Court may have originally had it right in assuming the vulnerability of consumers, though not because the consumer “lacks sophistication,”156 but because the advertiser has an overabundance of it.157 Thus, Post rightly cautions against pushing the analogy.158
The commercial speech analogy, then, while initially appealing, falls short. It lacks descriptive accuracy and analytical force on numerous counts. A preferable approach, therefore, considers the theoretical justifications for protecting professional speech on its own merits.