Speaking Hypothetically

Eugene Volokh offers a series of interesting and under-analyzed problems for free speech jurisprudence, along with a hypothetical case in which some of the problems he sketches come to the fore.

Comments

[Rick Barton]

It would seem that any government licensure requirement that entails a violation of the first amendment should be found unconstitutional and made void.

A private association that imposes speech restrictions as a condition of affiliation with the association would seem to be OK, since joining it is voluntary.

The problem comes when joining a private but speech restrictive association is a legal prerequisite for obtaining a license to practice a profession.

The ultimate solution is to abolish occupational licensure requirements, which would yield large general benefits anyway. see: Capitalism and Freedom by Milton Friedman; chap. IX. Short of that, abolishing the speech restrictions of the associations whose membership in is required for license is a step to remedy this.

Now, general speech compulsion regulations seem to be justified by the government only because the government restricts the number who may offer services, in what ever type of business, so it limits the market mechanism for the dissemination of information.

From the article, in a cited court opinion:

To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.

Note that the best the court does to justify this imposition is to say; “Yeah, but the doctor doesn’t have to say anything about anything else” and then back it up by invoking, “reasonable licensing and regulation by the State”. But, there are certainly good arguments that licensing is never reasonable. Check out the chapter in Capitalism and Freedom that I cited.

[Walter Wallis]

Rick – when you are right, you are right. While I must be licensed to practice engineering, I would think that a private insurance bond would protect public interest just as well.
Attorney – client and confessor – priest privlege may have some common law validity, but the so-called reporter’s right is kinda self-serving since the reporter retains the right to divulge at his option. Perhaps if we allow the prosecuter just one thumb screw?