AUTONOMY AND DISCIPLINARITY: CAN PSEUDOPROFESSIONAL SPEAKERS SELECT THEIR OWN CONSTITUTIONAL CATEGORIZATION?

First is the relevance of speaker autonomy-the constitutional relevance of individual choice.3 Second is the First Amendment's treatment of disciplinary expertise and knowledge-a category of speech that is undoubtedly important but hard to square with other values like autonomy or the marketplace of ideas.4 Third is the First Amendment's responsiveness to harm-an issue that has not received scholarly attention commensurate with its importance and complexity.5 It would be surprising if the overlap of these three difficult issues lent itself to clear normative and doctrinal takeaways, and it is a considerable virtue of Haupt's project that she does not offer (to repurpose her central example of bad medical advice) a simple and inadequate prescription. When speaking in public discourse, a doctor is treated like any other speaker; her statements are "transmuted" into statements of opinion to which liability cannot attach.8 Haupt highlights the enormous "gulf' between these two outcomes and suggests that pseudoprofessional speech sits uncomfortably between them.9 And because the enormous power imbalance between professionals and others is incompatible with the equality on which public discourse depends, there is a strong argument for treating such speech-even if delivered outside a traditional professional-client nexus-as subject to disciplinary regulation. To the contrary, pseudoprofessional speech can be regulated precisely and solely based on its deviation from professional standards, regardless of any resulting individualized or social harm.10 This would be in accord with the law's treatment of professional practice without a license, which effectively presents the converse problem from the one that Haupt investigates. At risk of overcomplicating what is hopefully an intuitive point, this is essentially a matter of what Wesley Newcomb Hohfeld would call a "power": the ability to alter legal relationships (including the "rights" and "duties" that are often central to primary rules).11 One obvious answer is that a judge, professional association, or other legal decisionmaker has the ultimate authority to determine what is, in effect, a legal question.