Debating the First Amendment: Is False Speech Constitutionally Protected?
False beliefs are common in society and have permeated the healthcare industry.
False beliefs are historically common in society, whether through a lack of knowledge or willful ignorance. Many false beliefs exist in health care and have the potential to cause undue harm to patients who require life-saving therapies.
Anti-vaccine efforts are an example of a false belief in health care today. According to research by Scott J. Schweikart, JD, MBE, a senior research associate for the American Medical Association Council on Ethical and Judicial Affairs, the potential to curb these erroneous beliefs in medicine may hinge on governmental regulations to reduce false speech in health care. The article was published in the AMA Journal of Ethics.
The 2 speech categories that govern clinician practice are false speech and professional speech. False speech is a law category where regulations and sanctions are placed on false statements, comprising fraud, perjury, defamation, and false commercial speech. The Supreme Court states that “falsity alone is not enough to warrant regulation and that there must be some extenuated circumstance attached to the falsity — like malice or perjury, for example — for government sanction of false speech to be valid.”
Physicians who practice under a false belief (ie, the belief that vaccines cause harm) that has contrary evidence to negate that belief may pose a substantial risk to patients. Some argue that “true and false speech” should be considered separate speech categories in the First Amendment and should therefore be regulated. This regulation also has ethical considerations and tends to cross into murky waters, with some physicians citing that these regulations violate their right to freedom of speech.
Further debate may be necessary to determine the best route for regulating false beliefs and speech, however, physicians should continue to engage in evidence-based practice. “Ultimately, a legal doctrine that allows a clinician to speak most truthfully to patients and the community is the best outcome for the health professions and society,” Mr Schweikart concluded.
Schweikart SJ. Constitutional regulation of speech (and false beliefs) in health care. AMA J Ethics. 2018;20(11):E1041-E1048.