The limits of free speech: An interview with I. Glenn Cohen

Many doctors have written to me with concerns that trying to curtail the promotion of dangerous medical ideas in the media may lead to heavy-handed regulation of what physicians say in general. These physicians who wrote to me agree that Dr. Oz and others like him are spreading false medical information, but they still worry about the unintended consequences of taking action.

Doctors feel it’s important to be protected when they talk to their patients about complex medical topics. What actually constitutes “good” medical information is not always easy to know.

I. Glenn Cohen, Professor at Harvard Law School

Even Dr. Oz recently claimed that his critics were trying to stifle his right to “free speech.” Freedom of speech, of course, also extends to Oz’s critics, who are predominantly private individuals trying to be truthful in their critiques. However, what if official regulatory bodies wished to take action?

In order to get a better perspective on how free speech comes into play with doctors in the media, I talked with I. Glenn Cohen of Harvard Law School. He is an expert on the intersection of law, medicine, and ethics and a director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics.

Read on for the complete interview.

 

Q: How might the first amendment apply to regulation of physician speech in the media?

IGC: The first and most important distinction is who is doing the regulating. For the first amendment to apply, there is a requirement of what is known as state action, which means that the government has to be the one limiting speech or be intertwined in a series of ways. So if you’re talking about the AMA, it’s a private organization. So I don’t think that you’re really talking about a first amendment issue because they’re a private club not governed by the first amendment.

Q: If a physician gives medical advice in the media, is that generally considered a first amendment issue or medical practice subject to regulation?

IGC: If the government, for example, says that if the physician goes on TV and has to say X or Y, then it becomes a first amendment issue. You have a state actor being the one doing the regulation. So it depends on who is trying to regulate.

Q: Typically state licensing boards regulate and enforce physician practice.

IGC: So if a state licensing board is punishing a physician for something they’ve said, then that now becomes a first amendment issue. If the AMA wishes to take some action, then it’s not a first amendment issue because it’s not a state actor. The question then would be what kind of regulation is being asked and is it justified under the First Amendment.

Q: Are you aware of any major legal cases or precedents that address this issue directly: doctors going in the media, saying things that people had a problem with, and wanting to regulate it?

IGC: I don’t know of any state licensing board that has revoked the credentials of doctors based on a doctor’s public statements on television, but that doesn’t mean they don’t exist. It’s important to understand that there is no doctor-patient relationship between Dr. Oz, for example, and his TV audience. If there are statements made within a physician-patient relationship, then that is the kind of issue that licensing boards are particularly interested in, but it goes beyond that too.

There are cases about the regulation of drug reps and the promotion of off-label uses that have led to a certain amount of first amendment concern over whether the government can regulate that. But I’m not aware of any case where a licensing board has attempted to revoke a license on the basis of a doctor’s public statements on television.

Q: So what is it about a doctor giving advice in the media versus his giving medical advice to his patient in the office that’s so different, where one doesn’t create a doctor-patient relationship?

IGC: One thing is that it’s just one-directional. A doctor in the media doesn’t have any information about the people he is talking to. There is not a dialog, for example. That is the first thing that distinguishes it. The other distinguishing thing is there is case law on when you form a doctor-patient relationship. A lot of it depends on the expectation of the individuals involved. So when Dr. Oz is talking on TV, are viewers expecting him to be their physician?

Q: Sure, they don’t expect him to be ordering blood work for them and that sort of thing, but presumably viewers watch and listen because they trust him?

IGC: They definitely trust him, but that’s not enough. There are some formalities to establishing a doctor-patient relationship. I can’t think of any legal expert who would think that a doctor talking in the media constitutes a doctor-patient relationship.

Q: So if there’s no doctor-patient relationship being formed, then the physician is pretty much free to say whatever he wants based on the first amendment? If a state medical board wanted to take action, they couldn’t?

IGC: So if a state licensing board was trying to penalize a doctor for his speech, the fact that there is no doctor-patient relationship doesn’t by itself answer the question. State licensing boards could have rules that extend beyond the doctor-patient relationship, for example, paying your dues or not misrepresenting your level of training.

Then we would have to go through first amendment case law and ask what kind of speech is this: is it commercial speech? Commercial speech gets less first amendment protection. Then there are a series of tests that we could go through to determine whether the state’s attempt to control the speech is justified under the first amendment.

Q: Then does the fact that Dr. Oz is making money from this whole endeavor come into play? He doesn’t make money from any particular piece of advice he gives, but the whole process results in his drawing quite a large salary.

IGC: It means that what he says is probably going to be classified as commercial speech, and commercial speech is protected a little less under the first amendment, but it’s still protected speech.

Q: What is the legal situation when Dr. Oz or someone like him promotes a certain supplement or product? Dr. Oz is quick to say he’s not endorsing any product by a particular company, but he certainly promotes specific supplements and recommendations.

IGC: If there was a product he created that made false claims, there would be liability for that. It doesn’t sound like he’s promoting a product that he himself sells.

Q: That’s an interesting question. I think that’s part of why he was brought before the senate committee. There was this question of whether or not he was implicitly endorsing a specific product. Those products later were associated with fraudulent claims by their manufacturers. Those manufacturers used Dr. Oz’s endorsement of the active ingredient in their advertising.

IGC: Usually these lawsuits involve manufacturers making claims about their own products or being hired to promoted products. I don’t know if there is case law on third parties making claims about someone else’s products. Certainly, if Dr. Oz were to say something false or misleading about a product, then it falls under the jurisdiction of the Federal Trade Commission.

Always with the first amendment, you want to be concerned with chilling speech and chilling dissent. So when something comes under the FTC’s jurisprudence, it takes a lot to regulate counter-majoritarian or heterodox views as actually false and misleading.

Q: Are there certain topics where there are frequent attempts to regulate physician speech?

IGC: There are attempts to regulate physician speech specifically about abortion. But that’s tied to government funding. The idea is that if you accept this money from the government, then you can’t talk about this or you have to read a certain paragraph before talking about abortion.

There was also case last year about the funding for organizations that fight HIV/AIDS, that they must oppose prostitution, and whether this was an unconstitutional condition.

Q: Could Medicare tie certain requirements for physician speech in the media to reimbursements? Would that potentially be legal?

IGC: They could try. My guess is they would reach a significant first amendment problem. Unless the speech was false. There is no protection for false speech.

Q: Do you have any personal opinions about whether this is an important issue, whether people are really being misled?

IGC: I do think that there are important spokespeople for the medical profession and that people listen carefully. This is a great opportunity to deliver accurate health information. So if these spokespeople are giving poor information, then that can be a problem. I think it’s entirely appropriate for the AMA, at least, to establish codes on media speech. But the real concern is not to just chill unpopular speech.

 


I am very grateful to Mr. Cohen for talking with me and clarifying these issues for medical professionals. In future posts we will continue to address the legal landscape that oversees physicians in the media.

April 27, 2015 | Benjamin Mazer