Jane Bambauer is a Professor of Law at the University of Arizona. Professor Bambauer’s research assesses the social costs and benefits of Big Data, and questions the wisdom of many well-intentioned privacy laws. Her articles have appeared in the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies. Professor Bambauer’s own data-driven research explores biased judgment, legal education, and legal careers. One of her recent publications is Information Libertarianism, 105 Cal. L. Rev. 335 (2017) (with Derek E. Bambauer).
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Professor Jane Bambauer
It’s obvious to anybody with a passing familiarity with Narcissistic Personality Disorder that President Trump has it. Yet psychiatrists and psychologists have been constrained to some extent by the “Goldwater Rule,” leaving Omarosa to make the most forceful public statements to date about Trump’s mental health.
Section 7.3 of the American Psychiatric Association code of ethics states the rule as follows:
On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.
Section 7.1 also advises psychiatrists to refrain from making public statements with authoritative conviction, admonishing them not to use the phrase “psychiatrists know that…”
The American Psychological Association’s code has similar language, and shortly after Donald Trump’s inauguration, that association reminded its members that
When a psychiatrist comments about the behavior, symptoms, diagnosis, etc. of a public figure without consent, that psychiatrist has violated the principle that psychiatric evaluations be conducted with consent or authorization.
Consent is the weasel word. The concept is perfectly applicable to invasive procedures and other direct interventions, but when it is used to constrain other people from talking to each other, it has been stretched beyond its use.
Jeannie Suk Gersen has written an excellent summary of the Goldwater Rule’s origins and constitutional infirmities. As she explained, the AMA’s and APA’s guidelines are explicitly transcribed into some state licensing laws. Others could very well investigate complaints based on the violations of the professional codes of ethics, so the threat of state action is real.
These constraints led some members of the psych professions to propose bold work-arounds. Bandy Lee, organizer of the “Duty to Warn” conference at Yale on the topic of Donald Trump’s mental illness, claimed that members of the profession can and should exercise their duty to warn about Trump’s “dangerousness” without diagnosing him. This proposal is based on a flawed understanding of the Tarasoff doctrine (not to mention a dubious assumption that psychologists’ assessment of a person’s dangerousness is unrelated to an opinion on “behavior, symptoms, diagnosis, etc.”). One contributor to the symposium even suggested that psychologists and psychiatrists should exercise their danger-based powers to detain Trump against his will. Presumably, if a profession cannot even comment on the mental health of a president within the bounds of ethics, it also cannot initiate a coup by overturning a fair, democratic election.
The free speech issues are blatant enough, but the case law on “professional speech” has enough incoherence to make the Goldwater Rule plausibly defensible. Consider Pickup v. Brown, a Ninth Circuit case that decided (wrongly, in my opinion) that a law banning psychologists from practicing “Sexual Orientation Change Efforts” on youth clients was nota speech regulation. Never mind whether the law could pass the requisite level of scrutiny, the court said scrutiny was unnecessary.
The court divided therapist’s communications into two buckets:
(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself;
(2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word.
Get it? Dialectical therapy is a “treatment,” not speech.
With the right evidence, I suspect SOCE bans could survive scrutiny, but Pickupis a dangerous case for permitting a restriction on communications to fly under the radar of constitutional review by asserting that some communications get a technical exemption. “Diagnosis,” in the case of the Goldwater Rule, is a good candidate for the same treatment as “treatment”. Indeed, much of the Food & Drug Administration’s authority over information technologies depends on it.
Chief Justice John Roberts
Under Chief Justice John Roberts, the Court has done good work shaping free speech doctrine so that it looks beyond labels. The Court has applied scrutiny to regulations that target communication and influence even when the text of the law avoids using obvious references to speech. [Expressions] Campaign finance laws are a good (if controversial) example—those laws are superficially about money and donations, but purpose and underlying theory of campaign finance reform is entirely related to managing communications to voters. But the Court has undercut its work by overextending free speech coverage in Janus. That case involved labor laws that compelled all public employees who are represented by unions to pay union fees. In both form and substance, the law addressed an economic free-rider problem, not a communication problem. But the Court treated the law as a regulation on speech because labor contracts require negotiation, and negotiation requires talking. Janus will be a low point in the Roberts Court’s free speech legacy because it provides ammunition to the argument, mostly specious, that since everything is expressive, the First Amendment should be limited to X (to political speech, to vulnerable speakers, to vulnerable listeners, etc.).
(credit: The New York Times)
There could be more fodder from the regulation of products, too. Free speech challenges to bans on readily executable code for 3-D printed guns should lose. Computer code is made up of words, yes, and those words can communicate an idea to other people who read the same programming language. But everyobject and action has embodied information. A traditionally manufactured gun can also teach. It could be put on display with labels showing how it was made. But gun bans that pass Second Amendment scrutiny could still treat the display gun as contraband. Likewise, code that will be used principally to make guns rather than to engage in the marketplace of ideas can be regulated the same way physical guns are, as long as they are regulated the same way for the same reasons.
This quick survey leaves a lot of nuance out, but to the extent we can agree that the First Amendment applies when communications are targeted by state action, the Goldwater Rule (as incorporated in state licensing laws) should trigger First Amendment scrutiny.
Moreover, the Goldwater Rule should not survive this scrutiny, even at an intermediate level for professional speech. While diagnosing third parties who are not in a direct relationship with a psychologist or psychiatrist could be error-prone in some circumstances, there are plenty of circumstances in which psychiatrists get enough information from a third party’s self-disclosure. Donald Trump is one such case, but he’s not even the archetype. Many non-famous people leave evidence of their delusion and mischief in emails, social media posts, and voicemails. For disorders in the “dark triad,” these may be as useful or more useful than an in-person session. A patient who is in close contact with a malignant narcissist is better off getting counsel from a psychologist or psychiatrist who does not have to pussy-foot around a clear analysis and remote diagnosis of a client’s septic tormentor.
So, psychologists could successfully challenge any government attempt to punish them for diagnosing Donald Trump. Does that mean they should?
(credit: The Blue Diamond Gallery)
Yes, I think so, but not for the reasons that participants of the “Duty to Warn” conference thought. Their motivation to diagnose Trump was to warn the republic that the president is unstable. But Trump was conspicuously unstable during the election, too. Right now, national politics are controlled by Republicans, and Republican politics are ruled by Trump supporters. And Trump supporters still love their leader because, not despite, of his destructiveness and rancor. You know the fable of the frog and the scorpion? The psychologists at the Duty to Warn conference want to yell, “HE’S A SCORPION! HE’S A SCORPION!” but Trump voters will respond, with a snicker, “damn right; he’s OUR scorpion!” And then they will adjust their little MAGA hats on their littlescorpionheads. (By the way, the populist left could develop its own collective narcissism. Like Trump supporters, the prevailing orthodoxy revolves around oppression by power hierarchies, both real and imagined. And they, too, can be played by Putin.)
Instead of diagnosing Trump to issue a warning, psychiatrists and psychologists should do it for another reason. They should do it to help advise people who are in Trump’s sphere of influence. As Vladimir Putin seems to understand, grandiose narcissists can be manipulated because they are so single-minded and exhausted. I suspect the aides who sprinkle Trump’s briefing with his name have gotten some coaching. Indeed, while the popular media criticizes the president for spending his time and energy on cartoonishly grand missions like the Space Force and cartoonishly frivolous things like Twitter flame wars with celebrities, these are exactly the sorts of things that we should hope take up his presidency. They are the presidential equivalent of giving a toddler some pots and pans to bang on.