Sherman and Nelson on the Weak Historical Case for Regulating Occupational Speech

Paul M. Sherman and Daniel Nelson of the Institute for Justice have posted The (Weak) Historical Case for Licensing Speech:

Increasingly, governments use occupational licensing to control who may speak on certain subjects and what licensees may say. The Supreme Court has twice rejected governments' doctrinal justifications for excluding occupational speech from First Amendment protection-first in NIFLA (2018) and again in Chiles (2026). But it has left open one possible source that could justify such exclusion: "persuasive evidence" of a "heretofore unrecognized" tradition of regulating occupational speech. This Article--the first to fully examine whether any such tradition exists--shows it does not.

This history has direct implications for today. Protecting occupational speech would protect against government controls on conversations between professionals and their patients that extend beyond the "conversion therapy" at issue in Chiles, like gender-affirming talk therapy. And it would undermine modern-day bans on "unlicensed" advice, including bans on who may provide legal advice, which have spurred our nation's current "access-to-justice crisis. 

--Dan Ernst 

Maehle on Medical Confidentiality

Out now with the University of Chicago Press is Contesting Medical Confidentiality: Origins of the Debate in the United States, Britain, and Germany by Andreas Holger Maehle, Durham University. From the publisher:

Medical confidentiality is an essential cornerstone of effective public health systems, for centuries societies have struggled to maintain the illusion of absolute privacy. In this age of health databases and increasing connectedness, however, the confidentiality of patient information is rapidly becoming a concern at the forefront of worldwide ethical and political debate. 

In Contesting Medical Confidentiality, Andreas-Holger Maehle travels back to the origins of this increasingly relevant issue. He offers the first comparative analysis of professional and public debates on medical confidentiality in the United States, Britain, and Germany during the late nineteenth and early twentieth centuries, when traditional medical secrecy first came under pressure from demands of disclosure in the name of public health. Maehle structures his study around three representative questions of the time that remain salient today: Do physicians have a privilege to refuse court orders to reveal confidential patient details? Is there a medical duty to report illegal procedures to the authorities? Should doctors breach confidentiality in order to prevent the spread of disease? Considering these debates through a unique historical perspective, Contesting Medical Confidentiality illuminates the ethical issues and potentially grave consequences that continue to stir up public debate.

 More information is available here.