child pornography. The Supreme Court has held that the State’s interest in protecting children from
the harms of child pornography outweighs free speech rights, nearly without question.121 The
Court has upheld laws barring child pornography because they serve to protect harm to the child’s
physical and emotional health, and privacy.122
There are multiple instances where the government has demonstrated its willingness to
recognize free speech limitations in special relationships that deal with sensitive information.
Attorneys owe a duty of confidentiality to their clients under attorney-client privilege.123 The
Supreme Court formally recognized this privilege in 1826, holding that the privilege of
confidential communications belonged to the client, and is “indispensable for the purpose of
private justice.”124 The central reason behind attorney-client privilege is that to obtain effective
assistance of counsel, clients need to be able to communicate and consult with their attorney
freely.125 To do so, they must “feel safe that in so doing their private thoughts and remarks [will]
be protected from disclosure.”126 Notably, it is only the client who can waive the attorney-client
privilege. 127 This rule is imposed on all attorneys by the American Bar Association’s Model Rules
of Professional Conduct Rule 1.6, which has been adopted by state bar organizations.128
The value of confidentiality has deep roots in the medical community. The Hippocratic
Oath requires doctors to swear to protect the privacy of their patients, stating “Whatever, in
connection with my professional practice or not, in connection with it, I see or hear, in the life of
men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should
be kept secret.”129 United States Code requires confidentiality of medical “records of the identity,
diagnosis, prognosis, or treatment of any patient” absent one of the specified and limited
exceptions.130 The statute permits disclosure of information if the patient has given consent, if the
record is needed in a criminal proceeding, or if the record is needed by the Department of Veterans
Affairs to furnish healthcare to veterans.131 Many states have similar statutes.132 Generally, courts
121 New York v. Ferber, 458 U.S. 747, 761–62 (1982).
122 Id. at 754 (holding that “the legislative judgment, as well as the judgment found in the relevant literature, is that
the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health
of the child.”); Id. at 757–58, n.9 (“When such performances are recorded and distributed, the child’s privacy interests
are also invaded.”).
123 MODEL RULES OF PROF’L CONDUCT r. 1.6(a)(AM. BAR. ASS’N 2015) (“A lawyer shall not reveal information
relating to the representation of a client unless the client gives informed consent . . . .”).
124 Chirac v. Reinicker, 24 U.S. 280, 294 (1826).
125 Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981) (“[Attorney-client privilege’s] purpose is to encourage full and frank
communication between attorneys and their clients, and thereby promote broader public interests in the observance of
law and administration of justice.”).
126 RONALD GOLDFARB, IN CONFIDENCE: WHEN TO PROTECT SECRECY AND WHEN TO REQUIRE DISCLOSURE 62–63
127 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §78 (AM. LAW INST. 2000).
128 MODEL RULES OF PROF’L CONDUCT r. 1.6 (AM. BAR ASS’N 2015).
129 GALEN & HIPPOCRATES, 10 GREAT BOOKS OF THE WESTERN WORLD vii (Encyclopedia Britannica ed., 1952).
132 See, e.g., N.C. GEN. STAT. ANN. § 58-2-105 (West 2016) (“All patient medical records in the possession of the
Department are confidential and are not public records . . . . As used in this section, ‘patient medical records’ includes
personal information that relates to an individual's physical or mental condition, medical history, or medical treatment,
and that has been obtained from the individual patient, a health care provider, or from the patient's spouse, parent, or
legal guardian”);FLA. STAT. ANN. § 440.125 (West 2016) (“Any medical records and medical reports of an injured
employee and any information identifying an injured employee in medical bills which are provided to the
department… are confidential…except as otherwise provided by this chapter.”); TENN. CODE ANN. § 10-7-504 (West