Let's explore the roles governments and organizations play in health communication
When it comes to health and medical communications, there are legal restrictions that fall somewhat outside of 1st Amendment bounds due to the knowledge required and high risk of harm if that knowledge isn't present.
Federal Laws on Health Claims
One set of regulations comes from the U.S. Food & Drug Administration, specifically regarding written (and, I assume, verbal) health claims of foods and dietary supplements.
According to the FDA, describing health claims of foods...
"must contain the elements of a substance and a disease or health-related condition;
are limited to claims about disease risk reduction;
cannot be claims about the diagnosis, cure, mitigation, or treatment of disease; and
are required to be reviewed and evaluated by FDA prior to use."
When making claims about dietary supplements, language must fit the "structure/function" rule. They cannot claim to diagnose, treat, cure or prevent any disease. Legally, only a drug can make such a claim. Again, according to the FDA...
“Structure/function claims may describe the role of a nutrient or dietary ingredient intended to affect the normal structure or function of the human body... In addition, they may characterize the means by which a nutrient or dietary ingredient acts to maintain such structure or function.”
State Laws on Medical Communication
Every state is free to define "practicing medicine" in its own way, though they all involve diagnosing, treating medical conditions, prescribing medications or treatments, and/or perform surgery. Communications must stay within the licensed scope of practice. If they fall outside of that or if you aren't licensed at all, you may be penalized for practicing medicine without a license. This falls into the realm of a concept recognized as "professional speech". This describes limitations on free speech which lower courts have recognized. When speaking as a health care professional, your speech must reflect the guidelines and boundaries of your profession, else it be subject to malpractice.
Importantly, some communications are specifically excluded –offering general advice, general nutrition information, or communicating about medical conditions.
Bylaws of Medical Societies
As non-governmental entities, health provider professional organizations have the ability to set codes of ethics and bylaws that guide the behavior of members. For instance...
The American Medical Association reserves the right to discipline or terminate any member for an infraction of its Constitution or Bylaws, for a violation of its Principles of Medical Ethics, or for unethical or illegal conduct. Unfortunately, medical misinformation is not currently an explicit part of this. The AMA is currently considering modification of its code of ethics to address physician behaviors and duty of care in light of the COVID-19 pandemic. They also aim to study the issue of medical students, residents, fellows, and physicians endorsing products through social and mainstream media for personal or financial gain–with an aim to alter their bylaws, depending on what they find.
A 2021 joint policy statement endorsed by number of non-governmental nursing organizations clarified that, "When identifying themselves by their profession, nurses are professionally accountable for the information they provide to the public. Any nurse who violates their state nurse practice act or threatens the health and safety of the public through the dissemination of misleading or incorrect information pertaining to COVID-19, vaccines and associated treatment through verbal or written methods including social media may be disciplined by their board of nursing. Nurses are urged to recognize that dissemination of misinformation not only jeopardizes the health and well-being of the public, but may place their license and career in jeopardy as well."
Workplace Rules for Employees
Unless you work for a government entity, your speech is not protected under federal law. Private employers are subject to state law, which is banned from making laws which restrict speech under most circumstances, but is allowed to make laws which protect it (even in private companies).
Most states leave the regulation of employee speech to employers. Employers may weigh in on whether communication about divisive political or social issues is allowed while at work or whether employees are able to discuss their wages with one another. In health care–unless there is a state law protecting private sector speech–a company may stipulate that employees not share false health-related information on company time, property, or while identifying as an employee.
In Summary...
Communicating falsehoods about health and science may be unethical, but in most cases, it's not illegal.
References:
American Association of Colleges of Nursing & American Nurses Association (2021). Policy statement: Dissemination of non-scientific and misleading COVID-19 information by nurses. Retrieved on June 19, 2022, from https://www.ncsbn.org/PolicyBriefDisseminationofCOVID19Info.pdf
American Medical Association (2022). Report of reference committee on amendments to constitution and bylaws. Retrieved on June 19, 2022, from https://www.ama-assn.org/system/files/a22-refcomm-conby-report.pdf
Theoharis, M. (n.d.). Practicing medicine without a license. CriminalDefenseLawyer.com. Retrieved on June 12, 2022, from https://www.criminaldefenselawyer.com/resources/practicing-medicine-without-a-license.htm
U.S. Food & Drug Administration (n.d.). Questions and answers on health claims in food labeling. FDA.gov. Retrieved on June 12, 2022, from https://www.fda.gov/food/food-labeling-nutrition/questions-and-answers-health-claims-food-labeling
U.S. Food & Drug Administration (n.d.). Structure/function claims. FDA.gov. Retrieved on June 12, 2022, from https://www.fda.gov/food/food-labeling-nutrition/structurefunction-claims
Warren, A. M. (2021). Free speech and expression in the 2021 workplace. The National Law Review, XII(170). Retrieved on June 12, 2022, from https://www.natlawreview.com/article/free-speech-and-expression-2021-workplace
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