By Claudia E. Haupt
Why does the law sanction giving bad advice to one patient, while it permits giving bad advice to millions of YouTube or television viewers, which may result in significant physical harm?
We might call this the “Dr. Oz paradox.” Dr. Mehmet Oz, the Republican candidate in Pennsylvania’s U.S. Senate race, is a famous television personality as well as a licensed physician. But, according to one study, half of his publicly disseminated medical advice is wrong. Yet, his sizable audience may very well follow it anyway, and perhaps suffer harm as a result. Such bad advice, which could get any doctor in legal trouble if disseminated to their patients, may be given to the public at large without fear of sanction. The consequences of this sharp doctrinal distinction can be quite jarring.
We march into battle with the army we have, and doctors around the world are choosing hydroxychloroquine more than any other solution.
— Dr. Mehmet Oz (@DrOz) April 3, 2020
Professionals within a professional relationship are subject to a variety of legal constraints, such as informed consent requirements or professional malpractice liability if things go wrong. Within the confines of the professional relationship, the First Amendment operates in a way that permits limits on the professional’s speech to ensure the patient receives good advice. For example, free speech is not a defense against a malpractice claim. The knowledge asymmetry between professional and client or doctor and patient provides the basis for imposing legal constraints on the professional. Patients can only make autonomous decisions that are important to their own health if they receive accurate and reliable advice. In the professional relationship, this limits the professional’s freedom to speak their own mind if it diverges from professional knowledge.
Speakers outside of this relationship, however, are not bound by these constraints, even if they are licensed professionals. Outside of the professional relationship — whether on TV, YouTube, or TikTok — when speaking as a private person, a professional’s speech receives the same First Amendment protection as anyone else’s. Perhaps this reflects an appropriate tradeoff between expertise and freedom of speech in ordinary times. But the value of this tradeoff is significantly strained when the stakes of advice-giving are high, exposing the weakness of the traditional framework. In particular, the type of speech I call “pseudo-professional advice” — that is, advice given by licensed professionals outside of the professional relationship that contradicts the professional knowledge community’s insights — poses a challenge that I explore in more detail in an eponymous forthcoming article.
The American Medical Association — as a private organization not subject to First Amendment constraints — provides ethical guidelines for physicians’ media interactions stating that any information they give be aligned with “medical expertise” and be “based on scientific evidence,” but the quality of advice is not secured by the same legal guardrails as advice within the doctor-patient relationship. Professional organizations, including state medical licensing bodies, have called for disciplinary sanctions against licensed professionals who disseminate misinformation. Meanwhile, scholars have noted that “[t]here is precedent for both medical professional societies and boards of medical licensing to take action when physicians violate their ethical responsibilities in nonclinical contexts.” Can disciplinary action for giving bad advice to the public, perhaps even up to loss of the license to practice, be squared with individual professionals’ free speech interests?
The disconnect between the speaker’s identity as a licensed professional and the largely unregulated content of their potentially dangerous message outside of the professional relationship makes pseudo-professional advice especially troublesome. Based on their expertise, professionals might be considered especially trustworthy — their statements on medical matters, for example, might be deemed more reliable and thus more dangerous if they’re wrong — than those of laypeople. We may rely on advice given by athletes, celebrities, or influencers for any number of reasons, including that they’re good at marketing, but we don’t assume they have particular professional expertise. The combination of the significant potential for harm, the knowledge asymmetry that persists no matter the context in which the professional speaks, and the formal licensing credential that signals a professional’s disciplinary competence to the public and thus further induces reliance may justify treating licensed professionals speaking on matters of expertise to the public at large differently than other speakers.
Finally, let’s circle back to Dr. Oz. Assume he wins a seat in the U.S. Senate, joining several other senators who are also licensed physicians. What happens if he continues to give bad health advice in what is then a government role? The First Amendment’s Free Speech clause does not apply to government speech. As the Supreme Court most recently reiterated in Shurtleff v. City of Boston, “when the government speaks for itself, the First Amendment does not demand airtime for all views.” The government can choose its own message, and it can do so to the exclusion of other messages: for example, it can choose to be pro-smoking or anti-smoking. To check the government’s problematic speech, courts rely on democratic accountability, rather than the First Amendment. As the Court reaffirmed in Shurtleff, “[t]he Constitution . . . relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” This can make for tricky line-drawing when government speakers have multiple roles, including professional ones.
So, when a senator who is also a licensed physician disputes the effectiveness of masks to curb the spread of the coronavirus, his statements likely have a different valence than those of other senators who cannot claim professional expertise in addition to their official role. When the physician is also a government speaker, two positions of authority converge, and the potential for harm is especially great if the speaker’s advice is bad. My colleague Wendy Parmet and I explore this conundrum in a forthcoming article through the lens of professional malpractice liability to expose an array of thorny questions. Elections have consequences, and we might end up with yet another Dr. Oz paradox.
Claudia E. Haupt is an Associate Professor of Law and Political Science at Northeastern University.