"Adam Smith's First Amendment"

I have seen reference to this article, which notes:

From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.

Furthermore, the Supreme Court "defined the [commercial speech] doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers." Thus, truthful advertising and compelled speech (e.g., labeling requirements) are allowed there while lying in various contexts (even about obtaining a medal) or forced speech is deemed protected by the First Amendment. "Freedom of speech" is protected, not a total right to speak, all words treated the same. 

Note that "to receive information" provides an important caveat here -- even in the "purely economic" field, a law that burdens the receipt of information can and should be deemed illegitimate in various contexts. Thus, e.g., I noted that there was a case involving the receipt of contraception advertising; an early case that recognized commercial advertising was protected by the First Amendment dealt with abortion ads. So, mere "rational basis" is not enough. The article also cites as problematic a case involving a locality's law that would "prohibit gun sales at its fairgrounds."  But, that raises Second Amendment concerns, just as the abortion ad ban (or a lawyer speech ban) touched upon other rights. Speech regulation, including involving money, can involve various things.

The article flags as problematic a recent lower court opinion regarding licensing tour guides, noting that the matter being regulated is  not something "we" would deem as regulating "an attempt to influence the content of public opinion."  It notes that if the tour group had an ideological nature ("Tea Party Tours"), it would be different.  I find this a somewhat dubious line -- tour groups probably are divided in various ways, many with some sort of "ideological" focus in some sense.  For instance, let's say the tours focus on certain historical events.  Will they all determine the locations totally neutrally? What does that even mean?  What if the group singles out places that highlights advances in women's history and it seems to overall noticeably lean in a progressive direction.  Enough? 

I think if we allow tour guides for profit to be licensed in some fashion that neutral fashion, the Tea Party Tours can be covered too. The law in question set forth rules by age (over 18), a proficiency in English (seems problematic), not being guilty of certain felonies and a general knowledge test.  But, the last provision does seem problematic. Why exactly is it required to pass some general knowledge test (with all the selective knowledge that tends to further) to be a tour guide?  You do not have to do so to write a tour guidebook.  It's helpful, sure, but why not just provide those who pass the test a government seal of approval that could help consumers?  Passing a test is a limited benefit and given speech is involved, is it really worth the candle? 

This underlines the wider point of the article that a "one size fits all" free speech rule is not appropriate.  But, this applies to "commercial" speech in both directions.  The same applies to professional speech generally. Surely, e.g., doctors do not have the same freedom to speak to patients as let's say a politician in a campaign.  Note though that even there disclaimer and disclosure laws (with some push-back) have been upheld.  Still, be it too blithely put (no shock), Justice Douglas had a point:

The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But, as Chafee said, "the First Amendment and other parts of the law erect a fence inside which men can talk. The lawmakers, legislators, and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law."

Likewise, the right to privacy is of special importance in the doctor/patient relationship, even if it is not absolute. So, broad statements by some regarding the state's power to regulate professional speech in doctors' offices should not allow, e.g., various interferences with doctors talking to their patients about abortion.  Some "conduct" is involved in medicine as well, but yesterday's discussion regarding contraceptives shows this as well.  Medicine is regulated but it also is speech friendly in some ways. Plus, neutral regulations are one thing; ideological barriers often another.  Thus, just because it is a professional area, a law that denies a doctor the ability to ask anything about guns given their health effects would be illegitimate. There is no "right to privacy" against that; a compelled reply is another matter. 

The truth often comes by listening to both sides here, including when determining what speech regulations are warranted for "safeguarding democratic governance."