Socially Awkward

Well, THAT was fast.

It was only the end of January when UpSolve filed its lawsuit against New York and its overly-broad unlicensed practice of law — or “UPL” — law.

I shouldn’t be too hard on the Empire State; every state has horrifically overbroad UPL laws. And what do these laws do? First, they make a criminal out of anyone who wants to provide legal services but is not a lawyer. And second, they create a speech and access to justice-chilling definition of “legal services.” UPL rules seem designed for maximum uncertainty, ensuring that the monopoly for lawyers it creates is as wide as possible.

The natural result is that the UPL monopoly reaches basic legal advice, like explaining to someone how to navigate a custody hearing, or how best to fill out a government form.

But such advice is speech, speech protected by the First Amendment. And it’s intolerable that the government would criminalize the content of speech in this way.

Thankfully, U.S. District Court judge Paul Crotty agrees, having granted UpSolve an injunction from the enforcement of New York’s UPL statute. And while the decision is narrow, it may well have a much longer reach. Judge Crotty writes convincingly of the reasons why a prohibition on providing legal advice is a content-based restriction on speech — and holds that as such, it is subject to strict scrutiny.

Now, it’s true that the old axiom that strict scrutiny is “strict in theory but fatal in fact” is somewhat overstated. Government speech regulations can survive strict scrutiny review. Some elements of UPL — like holding out, court representation, or making certain attestations — may well do so. But I’m thinking the broad prohibition on anyone but lawyers providing legal advice is fatally flawed.

As Judge Crotty notes, in finding that New York’s UPL statute as applied to legal advice falls far short of meeting the bar of strict scrutiny:

Aside from its less-than-compelling interests, the State has failed to narrowly tailor the statute. In fact, the UPL rules could hardly be broader: New York could implement less restrictive alternatives to blanket ban on all unauthorized legal advice.

Important words, and an important warning to every other state. While it could certainly be cut back on appeal, this decision is now the second I’m aware of that has taken a cue from the Supreme Court’s 2018 decision in NIFLA v. Becerra to find that restrictions on professional speech are subject to strict scrutiny.

If I might offer a suggestion to the other state Bars: start working, post-haste, on what a version of UPL would look like that could satisfy strict scrutiny and the First Amendment rights of your states’ citizens. And there’s a bonus to so doing, aside from avoiding the inevitable legal thrashing: you’d be providing a powerful boost to the Access to Justice initiatives that you all spend so much time talking about.

Counseling services designed to get people to change their sexual orientation or gender identity have a deservedly gross reputation. Grosser still is their predominant orientation toward children, who frequently aren’t the ones choosing to undertake such counseling. 

In response, a number of jurisdictions have imposed laws prohibiting conversion therapy (or “sexual orientiation change efforts” – SOCE) with respect to minors. Among these were Boca Raton and Palm Beach County, Florida. 

It’s fairly well-recognized that any such ban as applied to adults would be unconstitutional. However, bans of SOCE for minors have had more success in the courts. Not so for these Florida jurisdictions. On November 20th, the 11th Circuit issued its decision in Otto v. City of Boca Raton, finding that these ordinances violated the First Amendment rights of the SOCE practitioners who challenged the ordinances. 

My interest in the case is primarily how deep a dive it takes into the interplay between the First Amendment and professional speech regulation. As the court notes, a ban on SOCE is clearly a content-based speech regulation, so strict scrutiny would normally apply. But what of the idea that this is a “professional speech” regulation, subject to some lower standard of review? The court makes short work of this:

The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings: “As with other kinds of speech, regulating the content of professionals’ speech `pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.'” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2374 (2018) (alteration in original) (quoting Turner, 512 U.S. at 641).

Okay, but what about if we approach the professional-speech-is-special thesis from behind, with the argument that this kind of speech — speech that is instrumental to the professional service being delivered — is not expression, but rather simply conduct? 

No chance. 

We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: “the enterprise of labeling certain verbal or written communications `speech’ and others `conduct’ is unprincipled and susceptible to manipulation.” Wollschlaeger, 848 F.3d at 1308 (quotation omitted). 

LOL; that’s an understatement! Wollschlaeger was the much litigated “Docs & Glocks” case, involving a Florida statute that restricted the rights of doctors to ask questions about patients’ gun ownership.

The court goes on to note:

The local governments are not entirely wrong when they characterize speech-based SOCE as a course of conduct. SOCE, after all, is a therapy, and plaintiffs say they want to “engage” in it. But plaintiffs have the better of the argument. What the governments call a “medical procedure” consists—entirely— of words. As the district court itself recognized, plaintiffs’ therapy “is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.” If SOCE is conduct, the same could be said of teaching or protesting—both are activities, after all. Debating? Also an activity. Book clubs? Same answer. But the law does not require us to flip back and forth between perspectives until our eyes hurt. Our precedent says the opposite: “Speech is speech, and it must be analyzed as such for purposes of the First Amendment.” Wollschlaeger, 848 F.3d at 1307 (alteration omitted).

Those who closely follow the Supreme Court’s First Amendment jurisprudence will recall that in NIFLA the Court stopped just short of finding that professional speech regulations must pass strict scrutiny. The 11th Circuit felt no such constraint:

And because NIFLA directly criticized Pickup and King—cases with very close facts to this one—we do not think there is much question that, even if some type of professional speech might conceivably fall outside the First Amendment, the speech at issue here does not. But to whatever extent NIFLA failed to bind us with a direct holding on that point, we now make that holding ourselves. These ordinances are content-based regulations of speech and must satisfy strict scrutiny. (emphasis added)

I think this is the first affirmative statement from a federal appellate court that core professional speech is fully protected by the First Amendment; I doubt it will be the last.

Going on to apply strict scrutiny to the regulation at issue, the court — unsurprisingly — found that the statute did not pass muster. For despite the strong feelings on this particular topic, the state had marshaled little evidence that SOCE is actually harmful. The centerpiece report, from the American Psychological Association, concluded that it had “no clear indication of the prevalence of harmful outcomes” among those who had undergone such counseling. And as the court noted, the fact that most psychological professional associations are opposed to such counseling is not, in itself, evidence that the restriction is appropriate:

But that is, really, just another way of arguing that majority preference can justify a speech restriction. The “point of the First Amendment,” however, “is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” R.A.V., 505 U.S. at 392. Strict scrutiny cannot be satisfied by professional societies’ opposition to speech. Although we have no reason to doubt that these groups are composed of educated men and women acting in good faith, their institutional positions cannot define the boundaries of constitutional rights. They may hit the right mark—but they may also miss it.

By way of one obvious example, the American Psychiatric Association long considered homosexuality a mental disorder. As the court observes:

The Association’s abandoned position is, to put it mildly, broadly disfavored today. But the change itself shows why we cannot rely on professional organizations’ judgments—it would have been horribly wrong to allow the old professional consensus against homosexuality to justify a ban on counseling that affirmed it. Neutral principles work both ways, so we cannot allow a new consensus to justify restrictions on speech. Professional opinions and cultural attitudes may have changed, but the First Amendment has not.

Note the emphasis on neutral principles. It’s easy to get outraged about a particular practice, to advocate in favor of seeing it banned, but in such times it’s particularly important to seek neutral principles. Because if “subjective disfavor” is the guiding rule, the shoe can easily be on the other foot:

If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition—counseling supporting a client’s gender identification could be banned. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender. (emphasis added)

Given my interests, I can’t help but see the parallels between the regulation struck down in this case and lawyer speech restrictions. Sure, “lawyer speech” isn’t likely to drive the intensity of feeling that “counseling on matters of sexual orientation or gender” does. But both areas of regulation have a strong theme in common. They both feature a class of professionals who have formed strongly-held opinions about what members of the profession can and cannot say — and those opinions are typically based on little more than conjecture.

Applying the neutral principles of the First Amendment doesn’t always result in popular outcomes. But the more we do so, the more we can re-examine long-held beliefs that constrain the ability of members of society to exchange and access ideas. There’s a whole universe of professional speech restrictions that remains unexplored; I’m looking forward to more cases — like this one — that unapologetically take them on.

Chelsey Nelson Photography v. Louisville, a federal District Court case decided in August, is our latest entrant in the slowly-expanding string of cases recognizing that strong First Amendment interests are at play when professional speech is regulated.

The case stems from something that most would, at first blush, find uncontroversial: a local ordinance requiring that businesses not discriminate when selling goods and services, or in their advertising for the same (e.g., by claiming they will not sell to certain classes of people, or by stating that such classes of people will be unwelcome at their businesses).

There are good reasons for laws banning discrimination in sales, stemming from historic mistreatment of minorities and the need to ensure access to public accommodations. And it’s understandable why those who object to serving protected categories of people are barred from doing so in most cases. There’s not a connection between a constitutional right and, say, selling gasoline or renting a hotel room, and the law affords the government far more regulatory leeway when dealing with conduct rather than speech. 

But what happens when the goods or services sold are expressive, and the person providing those goods or services objects to employing their expression in a particular way?

To the state of Kentucky, Nelson’s photography is conduct, indistinguishable from selling pancakes or gasoline. To Nelson, her photography is expression – and she objects to a state law requiring her to to express herself in a way that she does not support.[ref]She only wants to take photos of opposite-sex weddings, and has religious grounds for so doing. However, I’m not focusing on the religion aspect of this argument to better hone in on the speech-related concerns.[/ref]

In finding in favor of Nelson, the court engages in a useful discussion of how conduct (such as, say, taking photos) can be “sufficiently imbued with elements of communication” to be covered by the First Amendment. And the court cautions that this is NOT an invitation for any-and-all conduct to be squinted at hard enough that it turns into expression:

Of course, most conduct is not speech, even if it has expressive elements. The Supreme Court has “rejected the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea.” For example, there’s plenty expressive about road rage, but it’s not speech. Neither is cooking barbecue or running a motel.

Rather, the question turns on whether the conduct in question wordlessly conveys a “particularized message.” Examples noted by the court — all from cases where the Supreme Court held that the conduct in question was expressive — include:

• nude dancing
• flag-burning in protest of the 1984 Republican National Convention
• displaying swastikas
• taping a peace sign on an upside-down flag to protest the invasion of Cambodia and the killings at Kent State University
• dressing up as a soldier to criticize the government in an anti-Vietnam War skit
• wearing a black armband to oppose the Vietnam War
• conducting a sit-in to protest segregation
• refusing to salute the flag
• flying a red flag in support of international communism

Finding the line where conduct becomes expression can be tricky. For example, is refusing to wear a face covering — in defiance of a state COVID health ordinance requiring one — an expressive act? A federal district court in Minnesota recently held no, noting that the conduct regulated by the challenged law must be “inherently expressive.” If the conduct in question requires an explanation to get the point being conveyed, that is strong evidence that the conduct is non-expressive: 

Absent explanation, the observer would not know whether the person is exempt from [the COVID mask law], or simply forgot to bring a face covering, or is trying to convey a political message.

And while the court in Chelsey Nelson v. Louisville holds that line-drawing isn’t hard when it comes to photography — because photography is “unquestionably” protected by the First Amendment — I don’t see this as quite that open-and-shut. The result here seems obvious. Wedding photos directly express a message about an event — a message that may be freighted with specific concerns to some people. But the analysis would likely go the other way in cases where the photos have no connection to the photographer’s choice and do not send a particularized message: for example, a professional real estate photographer who refused to take interior home listing photographs for a class of people she didn’t care for.

Ultimately, as the court notes, professionals, too, are protected by the First Amendment protections for speaker autonomy. Forcing citizens to express ideas “contrary to their deepest convictions” (as Chelsey Nelson would be forced to do, were she required to take photos of same-sex marriages) is “always demeaning,” and such speech compulsion may in fact be even more problematic than bans on speech. It’s good that yet another court has recognized that even professionals have such rights — even if this case shouldn’t be read for the proposition that photographers can discriminate in all instances.