The Supreme Court’s 2018 decision in National Institute of Family & Life Advocates v. Becerra (NIFLA), set out a plain rule of law: “Professional speech” is not “a unique category that is exempt from ordinary First Amendment principles.” Nevertheless, in about two dozen federal cases since NIFLA, the lower courts have struggled to, or outright refused to, apply ordinary First Amendment principles. These cases have arisen in a wide variety of contexts—from highly controversial speech involving abortion, sexual orientation, gender identity, and COVID-19 misinformation, to perfectly ordinary and uncontroversial speech about a city’s history, a person’s diet, pictures of real property, and even horseshoeing—and they have involved both licensed and unlicensed people. The lower federal courts again are split and mired in confusion.
In the years leading up to NIFLA, several lower courts had marked out a set of special First Amendment rules for so-called “professional speech.” Those courts “define[d] ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’” And the courts would exempt those regimes from usual First Amendment rules. They wouldn’t evaluate whether, as applied to the plaintiffs before them, the challenged laws were triggered by speech or by nonspeech conduct. Rather, upon identifying the law as a “generally applicable licensing provision[],” the courts would apply either a watered-down level of First Amendment review or none at all. One eye-catching example arose in Virginia, where the federal court of appeals immunized from First Amendment scrutiny a licensing law triggered by the “spiritual counseling” of a fortune teller. In Kentucky, the state’s psychology licensing board tried (unsuccessfully) to shut down a nationally syndicated advice columnist for the unlicensed practice of psychology. The North Carolina dietetics board took a literal red pen to a health blog, claiming the “unlicensed practice of dietetics.” The list goes on.
In this way, the professional speech doctrine gave the government (as NIFLA would come to recognize) dangerous and “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” And so the NIFLA Court rejected that doctrine. Why? Speech is highly protected by the courts. Outside of certain narrowly defined historical exceptions such as true threats or obscenity, regulations affecting speech require some form of heightened scrutiny, demanding at least an important government interest and some form of tailoring. But restrictions on conduct typically receive rational basis review, which often seemingly requires neither a rationale, nor a basis, for the government to win. No surprise then that governments, as the 11th Circuit recently noted, “attempt to control speech by recharacterizing it as conduct.”
This makes the speech-versus-conduct determination critically important, lest the government’s “clever framing” allow it to restrict constitutionally protected speech without First Amendment constraint. And those framing maneuvers have gone into overdrive in the half-decade since NIFLA. In turn, the lower courts have fractured on a basic First Amendment question: what legal standard should they use to determine whether an occupational-licensing law restricts speech or merely nonspeech conduct? Three post-NIFLA circuit court decisions, all involving speech subject to surveyor licensing, demonstrate the conflict:
In Vizaline, a company used spatial mapping software to convert existing legal descriptions of real property (“metes and bounds”) into a computer drawing so that people could “visualize” what the description showed. Mississippi tried to shut the company down for “unlicensed surveying.” Vizaline just uses existing information to create new information in the form of a drawing, and that, clearly, is speech, so Vizaline argued this was a regulation of its speech. But the state argued that the surveyor licensing law generally regulates conduct and that Vizaline’s drawings fell within the regulation, so this this was a regulation of conduct. The Fifth Circuit held that the way to determine if this is a regulation of speech or conduct is to look at what Vizaline—the speaker—did to be regulated. If what it did was speech, then this was a regulation of speech. But if what it did was conduct, then this was a regulation of conduct. Simply, the court held, the standard for determining whether an occupational-licensing law regulates speech or regulates conduct is the Supreme Court’s “traditional conduct-versus-speech dichotomy.”
In Crownholm, a company called MySitePlan.com used preexisting GIS information to make “site plans.” These simple drawings could then be used for a variety of purposes, such as for minor building permits or as layouts for farmers markets. So simple and common are these drawings that California building departments even teach homeowners how to draw them for themselves. But California tried to shut the company down for “unlicensed surveying” because any drawing that “depicts” property boundaries and buildings is a survey requiring a license. MySitePlan, like Vizaline, just uses existing information to create new information in the form of drawing, and that is speech, so the company argued this is a regulation of its speech. Breaking from the Fifth Circuit, the Ninth Circuit held that the way to determine if this is a regulation of speech or conduct is to look at what the state—the regulator—claims to be doing. “By citing Plaintiffs, the Board has simply penalized unlicensed land surveying conduct,” the court said—even if what the state is calling “conduct” is actually speech.
Finally in 360 Virtual Drone Services, a company using drone photography provided aerial maps created with software that can stitch together photos to make a single, large, high-resolution photograph with metadata. North Carolina tried to shut the company down for “unlicensed surveying.” All 360 Virtual Drones does is create and use information, and that, again, is speech, so again the company argued this was a regulation of its speech. But the Fourth Circuit saw things differently. Breaking with both the Fifth and the Ninth Circuits, it marked out a novel legal standard for “distinguishing between licensing regulations aimed at conduct and those aimed at speech as speech”—one that entails balancing a “non-exhaustive list of factors.” That head-spinning “variety of factors” includes “whether the speech carries economic, legal, public-safety, or health-related consequences”; “whether the speech takes place in a traditionally public space,” as opposed to on the speaker’s private property; and whether the law being challenged “appears to regulate some kind of unpopular or dissenting speech.”
Tellingly, however, both the Fourth and Ninth Circuits apply the Fifth Circuit’s traditional speech-conduct analysis when other kinds of speech are at issue. That rule comes from the Supreme Court’s decision in Holder v. Humanitarian Law Project. In Holder, non-profit groups wanted to provide to certain designated terrorist organizations training and advice on how to use international law or on how to petition the United Nations. This was regulated as providing “material support” to those terrorist organizations, which is a crime. The government argued that because the restriction on providing material support “generally functions as a regulation of conduct” (such as restrictions on providing money or supplies), that the law regulated speech only “incidentally.” The Supreme Court, however, rejected this position because when “the conduct triggering coverage under the statute consists of communicating a message,” then the First Amendment applies with full force. But when it comes to professional speech, the lower courts have long disregarded Holder and continue to do so.
There are other conflicts among the lower courts when it comes to professional speech regulation. Content-based regulations of speech get strict scrutiny, and where speech is regulated because of what it depicts or shows, that is content-based. But some courts nevertheless say that professional speech regulated by a licensing laws gets only rational basis review, or intermediate scrutiny, or (in the Fourth Circuit’s case) a unique intermediate-scrutiny test specifically “for professional-conduct-focused regulations” that incidentally burden speech, one “loosened,” “quite different,” “more relaxed,” and “lower” than “the traditional intermediate-scrutiny test.” And, similar to the “surveying” cases, there is conflict some members of the Supreme Court have already noted with regard to “conversion therapy,” with some courts calling it speech and others conduct.
Given all this conflict, it is not surprising that these professional speech cases are beginning to reach the Supreme Court. Both Crownholm and 360 Virtual Drone are pending certiorari and set to be conferenced. There is also a conversion therapy case in the petition for certiorari stage. There will shortly be a petition for certiorari from the Fifth Circuit’s decision that Texas’s veterinarian licensing law violated Dr. Ron Hines’s free speech rights when the conduct triggering regulation was providing online advice to animal lovers worldwide without examining the animals that were the subject of his advice. And more cases are almost certainly coming.
The sooner the Court revisits professional speech, the better. Ever more people in this “Information Age” make a living by using, creating, and disseminating information, especially as new technology makes information both more readily available and valuable. State regulators, whether for political, social, religious, or pecuniary purposes, are continuing to crack down on speech by simply labeling it conduct. This exercise of power doesn’t only threaten to restrict dissidents. It threatens to restrict anyone who uses and disseminates basic useful information—the very “beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.” The First Amendment has something to say about that.
Disclosure: The author represents MySitePlan.com and 360 Virtual Drone Services in the cases discussed above, as well as numerous other Americans whose speech has been threatened by occupational licensing laws.
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