We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment

Abstract

The circuits are split as to what level of scrutiny should be applied to challenged regulations of professional speech. In the past two years, the Third and Fourth Circuit Courts of Appeals have applied intermediate scrutiny to regulations of professional speech, whereas the Ninth Circuit Court of Appeals has applied rational basis review. The Eleventh Circuit Court of Appeals first applied rational basis review, but then changed its approach in 2015 and applied intermediate scrutiny. This Note argues for the adoption of intermediate scrutiny as the appropriate standard with which to analyze regulations of professional speech. Intermediate scrutiny is the only standard that effectively balances the government’s interests with the First Amendment speech rights of professionals. In doing so, this Note explores the genesis of the professional speech doctrine as well as the implications of withholding First Amendment protections from professional speech.