The opinions expressed in this post are those of the authors and do not necessarily represent CERL’s official views.

Beginning in 2017 and throughout Trump’s presidency, Dr. Bandy X. Lee, a forensic psychiatrist and professor at Yale University, warned the public about the mental state of then-president Donald Trump. She was fired by Yale in the spring of 2020, months before the presidential election. The chairman of the Yale School of Medicine’s psychiatry department wrote that Dr. Lee was released following a committee’s determination that her public statements and “diagnostic impressions” of Trump and others called her ability to teach into question. The letter cited her purported repeated violations of the American Psychiatric Association’s (APA) Goldwater Rule.

The larger issue is the APA’s position on its members making public statements about the mental health of public figures. Without an evaluation and patient’s permission, it is deemed an ethical violation for an APA member to offer a “professional opinion” or diagnosis. Despite Trump’s erratic and impulsive behavior, the APA has not changed its position. In March 2017, the APA’s Ethics Committee issued an opinion reaffirming the rule.

The Goldwater Rule is set out in the APA’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry:

7.3 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.

Created in 1973, the rule traces its origins to the 1960s after some psychiatrists expressed concern about 1964 presidential candidate Barry Goldwater’s mental fitness to be president in control of a nuclear arsenal at the height of the Cold War. Other psychiatrists disagreed and wanted to keep psychiatry out of political discourse. The rule prohibits APA members from diagnosing someone they have not seen in a physician-patient relationship. It has been interpreted to prohibit public professional comments about the psychiatric condition of a public figure. Dr. Lee has not been a member of the APA for more than a decade.

There are exceptions to the rule. For example, a psychiatrist or other physician who is authorized by the public figure in question and who has been asked to conduct an examination may announce the results. Former White House doctor Ronny Jackson—who is not a psychiatrist—could publicly announce that he examined President Trump and that he was mentally fit for the duties of his office. But the Goldwater Rule, if followed, would mean that the psychiatrists it purported to regulate would not be allowed to make comments about Trump disagreeing with Dr. Jackson.

In our view as ethicists, the Goldwater Rule, and the underlying professional standard it advances, is a dangerous infringement of Dr. Lee’s freedom of speech as well as the freedom of speech of many other psychiatrists who joined her in concluding that President Trump was mentally unfit for office. Unlike the American Psychiatric Association, the American Psychological Association does not have a Goldwater Rule. Its reasons for differing from the APA are not clear, but Danny Wedding, Ph.D. and a member of the American Psychological Association’s Council of Representatives, astutely observed that “[i]t is not hyperbole to suggest that there is a connection between the mental health of the United States President and the future of the world.”

In 2017, we found Dr. Lee’s description of Trump’s mental condition so alarming that we urged Congress to revamp the mechanisms for implementing the 25th Amendment, which sets forth procedures for removal of a president who is mentally unfit for office. In that case, as we wrote in the chapter we co-authored in Dr. Lee’s book, The Dangerous Case of Donald Trump, Congress should establish an alternative body to assess the president. It is ironic that about the same time as the events giving rise to the Goldwater Rule seeking to take psychiatrists out of public debate about the mental health of political figures, the Constitution went in the opposite direction with the 1967 ratification of the 25th Amendment, which recognized that a president could be involuntarily removed from office because of physical or mental illness.

The legal profession contended with a comparable challenge in the 20th century when bar criteria were used to stifle dissent. Some states threatened lawyers’ licenses until the courts stepped in to rule that was unconstitutional under the First Amendment.

Baird v. State Bar of Arizona (1971) and In re Stolar (1971) were two seminal cases in which the U.S. Supreme Court ruled on whether Communist Party affiliation could preclude bar membership. Baird had refused to answer a question on the Arizona Bar application about membership in the Communist Party. Justice Hugo Black wrote that the “First Amendment gives freedom of mind the same security as freedom of conscience.” The First Amendment, he added, “prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs.” Also, “a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes…. The practice of law is not a matter of grace, but of right for one who is qualified by his learning and moral character.” Justice Potter Stewart’s concurring opinion said that “the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs.”

Martin Robert Stolar, a member of the New York bar, sought admission in Ohio but refused to answer questions on the bar application about membership in organizations that advocated violent overthrow of the United States government. Again, the Court upheld his First Amendment rights. At the height of the Cold War, the Supreme Court thus protected the right of lawyers to belong to the Communist Party—an organization that advocated the violent overthrow of the United States government. The message was clear: lawyers and other professionals could not be punished simply for stating their beliefs.

What are the chances the Supreme Court would allow a state to revoke a psychiatrist’s license simply for saying that the sitting president or a candidate for president is unfit for office? We think slim to none. There is a reason no state actor has, as far as we can tell, ever enforced the Goldwater Rule—it raises constitutional questions in that context. The APA is a private organization and perhaps can require its members to abide by rules restricting speech, although thus far the APA has not to our knowledge enforced the Goldwater Rule. But a state actor who disciplined a psychiatrist for such speech would likely confront a challenge under the First Amendment.

Dr. Lee has sued in federal court in New Haven, Connecticut. Because Yale is a private university, her case likely will turn on employment law and Connecticut state law rather than directly on the First Amendment. Dr. Lee’s legal position may be no worse or better than the faculty member recently fired from a small college in Oregon in alleged retaliation for reporting sexual misconduct. Just as Bob Jones University aggressively defended its right to restrict inter-racial dating in the 1980’s, Yale can try to convince courts that it has the right as a private university to ban a small portion of its faculty—psychiatrists—from unpopular speech about the mental health of the president (or others).

Punishing Dr. Lee for stating her opinion about Trump’s mental health is in our view also a violation of the principle of academic freedom—a principle distinct from freedom of speech but one that is foundational to the advancement of knowledge in universities and other academic institutions. Decades ago, Yale committed itself to the principle of academic freedom in the well-publicized 1974 Woodward Report. At the very beginning of that report Yale quoted first John Milton’s 1644 Areopagitica on the “free and open encounter” between truth and falsehood, and then Justice Holmes’s famous words in United States v. Schwimmer in 1928: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” These and the other statements in support of academic freedom in the Woodward Report were not just lofty words; the principal they stand for was impliedly part of Dr. Lee’s employment contract and is critical to the mission of Yale University.

Not only did Dr. Lee have the right to speak out about Trump, she also had a moral obligation to warn the public if she did in fact believe that Trump was mentally unfit for office. Dr. Lee never diagnosed Trump, but she did speak out publicly about her concerns. We are not aware of any professional discipline or firing of a psychiatrist for violating the rule. And no university of which we are aware has sought to discipline a faculty member for violating the rule. It should have no place in the psychiatric profession.

Yale should reinstate Dr. Lee or a court should find that her employment contract, which encompassed the concept of academic freedom, was breached and order that she be reinstated. The APA should revisit the Goldwater Rule. We live in an age in which one person—sitting in the White House or in control of the nuclear arsenal of another superpower—could order the destruction of human civilization in minutes. Everyone, including psychiatrists, should have the right and, we believe, has the duty to warn the public if the wrong person has been given such enormous power. The alternative we risk otherwise is a world where the Goldwater Rule is irrelevant because nobody will be here to enforce it.

We will leave to others the question of whether the White House’s Dr. Jackson or trained psychiatrist Dr. Lee was correct in what each said about Donald Trump. The fact that Trump controlled our nuclear arsenal for four years without triggering global annihilation is hardly proof that Trump was mentally sound. Perhaps we just got lucky. But that is not an acceptance of the Goldwater Rule in its current form and application. It is time for the APA to re-evaluate and allow their professionals to speak out on matters of the utmost public concern. A well-functioning democracy depends on it.

Richard Painter is the S. Walter Richey Professor of Corporate Law at University of Minnesota Law School and a member of CERL’s Advisory Council. He served as White House chief ethics counsel under George W. Bush. Twitter: @RWPUSA

Ambassador Norman Eisen (ret.) is Senior Fellow in Governance Studies at Brookings and an expert on law, ethics, and anti-corruption. He most recently served as special counsel to the House Judiciary Committee from 2019 to 2020. Twitter: @NormEisen