Can doctors post that? Free speech rights in social media posts

Martin Merritt, JD

This week, I handled a case on behalf of a physician accused of violating certain medical board rules pertaining to social media posts. The posts showed photographs during surgery, without identifying the patient.

The doctor had obtained patient consent to post photos for educational and training purposes, but not necessarily advertising. Part of the issue, is whether HIPAA or state privacy rights apply, when the patient cannot be identified ( I argued it does not) and whether this post counts as “advertising.”

Under Texas Medical Board Rule 164.1(which are new rules effective Jan. 9, 2025), defines “advertising” as“[a]ny communication designed to attract attention to the practice of a physician.”But even if a social media post is “advertising” that is not the end of the discussion.

When it comes to advertising, an often overlooked issue, is the constitutional right to “free speech” and the ability of a medical board to suppress commercial free speech under the First Amendment. Which is an interesting story.

There was a time when licensing boards prevented physicians from advertising at all. Many states, through licensing board, dictated the size of the lettering that could appear on a physician’s store front window.

Then, in the middle 1970’s, came a series of Commercial Free Speech First Amendment cases handed down by the U.S. Supreme Court.

In the U.S. Supreme Court seminal case, Virginia State Pharmacy Board v. Virginia Citizens Consumer Counsel, 425 U.S. 748 (1976), the Supreme Court held that truthful statements about the health care profession are protected by the First Amendment, even if uttered for commercial purposes. Justice Blackmun, writing for the majority reasoned, this case was just as much about the “consumers' right to receive information” as it was about the “pharmacists' right to provide it,” and that “the right to free speech is just as much about the ‘listener’ as it is about the ‘speaker.’”

According to Justice Blackmun, the fact that there may be even a purely economic interest in the content of the speech does not deprive the speaker or listener of the protection of the First Amendment. “This is especially true for the consumers in this case, as the poor, elderly, and infirm needed access to such information to make informed decisions.” For such people in need, Blackmun reasoned, such information was more than simply a convenience. 

Ultimately, the Supreme Court ruled that under the First Amendment, licensing boards, like the Virginia Board of Pharmacy, cannot regulate commercial speech which is neither “false nor misleading.”

As a result of this, Texas enacted a Statute, Occ. Code 101.201, that was created by a board consisting of members of multiple licensing boards and the governor’s office, which specifically defines a list of “false and misleading advertising,” that could be regulated, which is to be read in conjunction with Texas Medical Board Rule 164.4., which specifically permits advertising regarding the practice of medicine unless it fits into a list of categories of“false, deceptive or misleading.”

Applying Justice Blackmun’s reasoning, truthful speech describing a medical condition is as much about the consumer’s right to know what the condition looks like, as it is about the physician’s right to describe to the public what the condition looks like and that he treated it.

Many state privacy laws are more restrictive than the federal HIPAA standard. I would recommend, however, that any publication of patient photographs, be done only after consulting HIPAA and state regulations regarding the permissible authorization to use a patient’s deidentified photo for educational or commercial purposes, and that permission contain as expansive an authorization as possible under state and federal privacy laws.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.