Death Knell for UPL?

It’s FINALLY happening – a credible lawsuit taking on the lawyers’ monopoly on providing legal advice.

I’ve long railed on the fundamental disconnect between the First Amendment’s expansive free speech guarantees and the fact that every state in the union will throw you in prison if you so much as tell someone how to fill out a legal form.

It’s an indefensible state of affairs that has persisted for far too long. Yes, there are plenty of uses for lawyers, and even some scenarios in which giving lawyers a monopoly to provide services is best for all concerned.

But a monopoly on providing “legal advice?” That doesn’t cut it.

I’ll do a longer post about why the defenses of this status quo are wholly inadequate, but for now I’m just going to recognize the excellence of the folks at UpSolve — a nonprofit that helps people defend against debt collection lawsuits — in bringing this First Amendment lawsuit against the state of New York.

In their complaint UpSolve sensibly brings attention to the fact that their volunteers are well-trained, advise only in narrow areas, and do so for free. Those factors all weigh against any argument that New York’s legal monopoly is necessary in this particular case. But “professional speech” caselaw — maybe the most neglected area of First Amendment law — has been blooming ever since the Supreme Court’s 2018 decision in NIFLA v. Becerra. Some courts are now even outright applying strict scrutiny to regulation of professional speech (see here, and here, and here). So please forgive me for hoping that UpSolve’s lawsuit may in fact be the start of something very big.

Professional Speech Regulation, or a Story about a Man and a Horse

Back in 2015, I wrote about Ronald Hines, a Texas veterinarian who was sanctioned for providing veterinary advice without a license. Hines’ punishment was upheld largely because the Fifth Circuit determined that the a key factor in the state’s definition of “veterinary medicine” was the physical inspection of the animal in question — and Hines was not doing such inspections. This physical inspection requirement was, according to the court, regulation of conduct, and thus did not impinge upon Hines’ First Amendment rights.

This was . . . not a great decision. If the regulation of conduct prevents Hines from engaging in speech, how is it NOT a speech regulation?

Well, the wheels of justice can grind excruciatingly slowly, but they do grind. With the U.S. Supreme Court’s 2018 decision in NIFLA v. Becerra offering fresh light on the acceptable bounds of occupational speech regulation, Hines pressed his First Amendment claims anew. And in 2020, the Fifth Circuit reversed itself, holding that “Hines’ First Amendment claims may be entitled to greater judicial scrutiny than [the earlier decision] allowed,” and remanded the case to the trial court to determine whether the “inspection of the animal” requirement for veterinary advice is regulation of speech or conduct.

Earlier this month, Judge Fernando Rodriguez of the Southern District of Texas ruled, finding in line with the reasoning above: if a statute conditions a right to speak on engaging (or not engaging) in a particular form of conduct, that’s speech regulation. And it’s subject to strict scrutiny.

Those who would maintain a broad lawyers’ monopoly on legal advice should note this about Judge Rodriguez’ decision:

“[Hines] alleges that the Physical Examination Requirement, as applied to him, has wholly restricted him from interacting with pet owners, even when his communications do not consist of diagnosing, treating, or prescribing medication to animals. He cannot call or e-mail an animal owner, even if only to console pet owners or disseminate general information, unless he first physically examines the animal. In short, the overwhelming majority of what Hines sought to do, but which the Defendants prohibited him from doing unless he satisfied the Physical Examination Requirement, constituted speech and in no manner could be characterized as conduct.”

As with medical diagnoses and prescriptions, it’s possible that some tasks lawyers engage in — like representing clients before tribunals, or signing certain documents — might be determined to be conduct, and thus subject to greater regulation. But general “legal advice?” It’s hard to see how or why that should be treated differently than the services Ronald Hines was trying to sell to pet owners — services that can now only be regulated by the state of Texas upon a showing that such regulation satisfies strict scrutiny.

Streamlining “Admission on Motion”

So I was just admitted to the Arizona Bar.

Before you break out the celebratory mezcal and tacos, let me note the decidedly low-key meaning of this milestone: I’m already licensed in California and Washington, and I don’t need an Arizona Bar license for my in-house job.

But having moved to Tucson earlier this year, I figured I should get involved in the local legal community, and have the option of being able to do local pro bono and other in-state legal work. So I applied for a law license via “admission on motion.” That’s a form of admission available to attorneys who are licensed in another state and have been in active practice for at least 3 of the last 5 years.

It’s supposed to be a fast-track to a license for experienced attorneys, so you’d think that “admission on motion” would be simple, right? I’d just fill out a basic application form with the particulars of my admissions in other states, the Arizona Bar would then look up my California and Washington records online, they’d confirm that I’d been licensed long enough and hadn’t been disciplined, and grant me admission. It would take a day or so.

LOL – right.

In actuality, just completing the application form took me over 25 hours. It’s an unwieldy monster, requiring all sorts of ancillary documentation. For example: Arizona requires several official forms showing that I’d been admitted in another state, and that I am currently in good standing in that state. Different states have different names for these things, so I had to spend time corresponding with the California & Washington bars to ensure I was getting the right documents. Then I had to pay them to send “official” versions to me. All of this rigamarole, notwithstanding the fact that the AZ Bar could go to www.calbar.org and www.wsba.org and confirm these matters in seconds. Seems like that would be easier than reviewing the documents I sent them, right? I can’t imagine it’s because they don’t trust the other bars; I think it’s just the lawyerly proclivity for paperwork.

As it was, it took 4 months from when I submitted the application to when I was officially admitted to the Bar. I’d been warned it would take 9 months, so . . . good?

But why was all this runaround necessary? 

Again, it’s merely an annoyance for me; I’m practicing exclusively in-house, for an out-of-state company.

But what if I were were, say, a worker’s right attorney who was the trailing spouse of a pilot reassigned to the Davis–Monthan Air Force Base in Tucson? Or a family lawyer following my partner who just got a sweet job at the University of Arizona?

Cue up the 4+ month herky-jerk of the Arizona admission on motion process. And all that time, how do I focus on serving Arizonans and making a living at my chosen profession?  

So here’s a modest suggestion: flip the application presumption.

The current system starts with a presumption that the applicant is unworthy. A massive amount of time and paperwork is required to overcome this presumption. But anyone applying for AOM has already met the bar in at least one other state, and they are actively practicing. Why all of that paperwork to prove out what’s already known? It offers no benefit to the public; it’s just a box-checking exercise.

So change the presumption to one of worthiness. The AZ Bar can easily confirm license status and disciplinary history for any applicant. If an attorney meets the basic criteria (licensed, in good standing, active practice in 3 of the last 5 years) and has a clean disciplinary record, just give them an Arizona license. Save everything else – the notarized documents, the questionnaires, the exhaustive reference checks, the character and fitness evaluation, etc. — for applicants with spotty records.

As the vast majority of attorneys don’t have disciplinary records (less than one-quarter of one percent of attorneys are disciplined in any given year), almost all applicants would end up being admitted through this streamlined process. This would save everyone a lot of time and effort and help contribute to Arizonans getting legal help. And the Bar could still charge its licensing fee.

(Though I do feel a little bad for singling out Arizona. Every state that offers admission on motion has a process roughly as bad as this one, and the people at the Arizona Bar were nothing but pleasant and helpful throughout the process. So consider this as general advice for ALL states looking to improve license portability — and the ability of the public to get legal help.)

11th Circuit: Strict Scrutiny for Professional Speech Ban

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.

Attorney Speech Restriction Violates First Amendment

The tide is coming in on professional speech regulation. While we still don’t have an official “professional speech doctrine,” since the 2018 decision in NIFLA v. Becerra, the pace of cases considering – and rejecting – overreaching restrictions on the speech of professionals seems to be quickening. 

The latest example is out of Pennsylvania, where a federal district court just tossed that state’s Rule of Professional Conduct 8.4(g). That rule – which tracks the ABA’s Model Rule – is an expansive anti-harassment and discrimination regulation. It states:

It is professional misconduct for a lawyer to:

***

(g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

The rule also contains a Comment noting that the definition of “the practice of law” includes continuing legal education and conference activities. 

Pennsylvania tried to argue that the rule prohibits “conduct carried out by words,” and not speech itself. The court wasn’t having it. Rule 8.4(g) isn’t a regulation that merely goes to conduct; it explicitly refers to the use of “words” to “manifest bias or prejudice.”

The court went on to note that in the professional context, the only categories of speech that get less First Amendment protection are commercial speech and straightforward disclaimer mandates, and thus that “the speech that Rule 8.4(g) regulates is entitled to the full protection of the First Amendment.”

It remains to be seen whether the Supreme Court will ever adopt an actual professional speech doctrine. But until and unless that day comes, cases like this one will continue to draw in the edges of those areas where regulators have previously felt empowered to impose broad restrictions on occupational speech.

Photography, Discrimination, and the Limits of Speech Regulation

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. 1

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.

Notes:

  1. 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.

Gorsuch Weighs in on Legal Deregulation

There was a terrific access-to-justice piece in US Today last week, authored by former Colorado Supreme Court Justice Rebecca Love Kourlis and her fellow Coloradan, U.S. Supreme Court Justice Neil Gorsuch.

Kourlis and Gorsuch hone right in on the source of the problem:

First, lawyers have historically enjoyed the unusual privilege of regulating themselves, under the authority of state supreme courts. In most states, the profession has used this privilege to erect rules allowing only lawyers to provide “legal services”— no matter how basic the job may be.

They also note the barriers the legal profession has long erected to outside investment, and the perversities this creates in eliminating other sources of consumer-friendly competition:

At your local superstore you may be able to find tax-preparation services or an eye doctor, but you will find no help there for even the simplest legal chore.

And in praising the deregulatory efforts recently taken by Utah and Arizona – and the approach to licensing used in the UK – Kourlis and Gorsuch come so close to advocating that legal advice be pried away from the industry’s monopolistic grip:

Someone seeking legal advice about taxes would often prefer a tax-law expert with no law degree over a trial lawyer with no tax experience.

Of course that’s right. The law is vast, and getting vaster all the time. Yet we still limit legal advice to a class of initiates, chosen via a process that tests for little other than diligence and competence in the law’s broadest strokes, and presume that these people — and only these people — can provide advice on all things having to do with “the law.” It’s bonkers.

Arizona Cuts Attorney Regulation

Following on the heels of Utah, Arizona has approved sweeping changes to its rules regulating the practice of law. Once again, I’m pleasantly surprised that a state bar has gone for what I’ve long advocated: eliminating Rules 5.4 (the prohibition on attorney fee-sharing) and 7.2 (all sorts of unconstitutional limits on attorney advertising that predate Bates v. Arizona and which the ABA has inexplicably left in its Model Rules all these years).

Arizona has also opened up its legal monopoly a bit, creating a new license for “legal paraprofessionals.” I’m less sanguine about this change. Professional licensing remains a hurdle, and given our experience with a similar structure here in Washington state, I don’t see a vast market opening up. 

It would have been far better had Arizona simply adopted another simple-but-far-reaching legal regulatory fix: narrowing the definition of “the practice of law” so that anyone could provide legal advice without needing a law license.

I know that’s an idea that sounds crazy to the ears of American lawyers, but it’s long been how things work in the UK, and it doesn’t seem to have harmed consumers or turned London’s solicitors penniless into the streets. It also makes a world of sense from a First Amendment perspective. 

But hey, maybe next year? In any event, kudos to Arizona for taking a step I didn’t see coming until after I’d long hung up my law license.

Recent Cases Bode Well for Professional Speech Rights

Catching up – this summer has seen some important developments on the professional speech front:

Billups Decision Affirmed on Appeal

In Billups v. City of Charleston, a unanimous 4th Circuit panel affirmed the District court’s decision striking down Charleston’s licensing requirement for tour guides. The court dispatches two of the key factors that licensing regulators sometimes cling to: 

  • A regulation barring unlicensed tours implicates the First Amendment even though it does not directly regulate speech, because it prevents people from speaking.
  • It doesn’t matter whether the regulation only applies to paid tours, because — as is commonly understood by those who work in media and publishing; less so by others — profit motive alone does not make speech “commercial” (and thus entitled to less constitutional protection).

As the district court did, the Fourth Circuit passes on determining whether intermediate or strict scrutiny applies to this sort of regulation. However, the opinion notes that in either case, the government has the burden of proving that it actually tried other, narrower, methods to address the problem: 

To prove that a content-neutral restriction on protected speech is narrowly tailored to serve a significant governmental interest, the government must, inter alia, present evidence showing that — before enacting the speech-restricting law — it “seriously undertook to address the problem with less intrusive tools readily available to it.” See McCullen, 573 U.S. at 494. In other words, the government is obliged to demonstrate that it actually tried or considered less speech-restrictive alternatives and that such alternatives were inadequate to serve the government’s interest.”

This is good. Too often, new regulation is just flung against whatever parade of horribles is currently occupying the community’s imagination. The Billups decision is a reminder that those making the laws must do much more when their laws impact speech.

And don’t sleep on the nod to empiricism. Besides taking speech impacts seriously and minimizing harms, the court emphasizes that regulators who want their rules to survive First Amendment scrutiny need to ground those rules in actual data.

Vocational Training is First Amendment-Protected Speech 

In Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, the 9th Circuit found that a California law prohibiting people from enrolling in vocational training unless they possess certain educational credentials implicates speech rights.

This case nicely illustrates the limitations of state arguments that licensing simply goes to conduct, rather than speech. As the court notes, laws that regulate conduct nonetheless impact speech when the conduct in question consists of communicating a message. And just like the conduct at question in Billups — leading tours — consists of communicating a message, so does the conduct of training people to become farriers. 

A Win for Midwives in Georgia

The Pacific Legal Foundation (which, along with the Institute for Justice, is one of the leading lights in pushing back against overreaching licensing regulation) sued the Georgia Board of Nursing for threatening to fine midwives for . . . referring to themselves as “midwives.” 

Note that these fines weren’t threatened for unlicensed midwives selling their services. Rather, the Board threatened fines against non-practicing midwives who, in the context of providing advice and perspective to the public, merely referred to themselves — accurately — as midwives. 

The case did not result in a final appellate decision. Surely taking heed of the instructive lesson learned by the Engineering Board in Oregon when it tried a similar move, the Georgia Board of Nursing quickly folded up its tent. But in so doing, the Board signed a consent decree that prevents it from pursuing future cases or fines against non-practicing midwives. That should act as a semi-permanent barrier against future unconstitutional behavior by the Board.

Summer of CDA 230

Since my last series of posts on this topic, there has been an epic surge of hot nonsense government proposals on CDA 230.

First up: Donald F. Trump’s executive order purporting to take social media companies to task for, well . . . see for yourself:

Don’s Executive Order in response to this injustice is performative nonsense (read Eric Goldman’s comprehensive overview for more detail), but it is passing strange how “conservatives” have suddenly embraced government control of private speech. I’m old enough to remember when Republicans actually understood how the First Amendment works. Citizens United, anyone? 

Attorney General Bill Barr dutifully followed this up with a set of “Recommendations for Section 230 Reform.” These include broadening takedown requirements, adding disclosures, narrowing CDA 230 immunity for takedown decisions, and specifying that CDA 230 immunity doesn’t apply to antitrust enforcement (I don’t know that anyone thought that it did, but whatever). If you are looking for conservative, small-government principles . . . you’re aren’t going to find them here.

Next up was the Bad Josh, the would-be “Product Manager for the Internet,” Missouri Senator Josh Hawley. Hawley and his crowd of boob-baiting fellow Republican Senators (all of whom are smart enough to know better) introduced an absolute turd of a bill designed to undercut CDA 230. While it has the virtue of only applying to the largest social media sites (thanks for that, I guess), it also doesn’t appear to do anything other than create a cottage industry of nuisance lawsuits. On the bright side, that creates a nice contingency plan for me, should I decide on a late-career switch back to being a litigator.

Closely following Hawley’s offering was the bipartisan PACT Act, sponsored by Hawaii Senator Brian Schatz and South Dakota Senator John Thune. While this bill includes some generally-unobjectionable disclosure standards, it carves back CDA 230 immunity, creates a notice-and-takedown regime, and imposes some truly laughable requirements (like a live telephone call center to respond to inquiries about moderation decisions). 

Oh, and at the same time there’s ALSO the bipartisan, oh-so-self-righteously-named “EARN IT” Act which would, that’s right, make platforms earn their CDA 230 immunity by satisfying a federal commission that they are doing all they can to prevent online sexual exploitation of children. The devil is always in the details when it comes to “think of the children” legislation like this, but it’s a safe bet that putting the thick, sweaty thumb of government on site operations in such a manner doesn’t bode well for innovation or privacy.

All in all, it’s already been a VERY busy summer for CDA 230, and it isn’t even July yet. These proposals are driven by everything from legitimate concern over edge-case issues to frustration at the reach of the First Amendment to bad-faith posturing to find any sort of brickbat to take to “Big Tech.” 

But we must keep in mind that the simplicity of CDA 230 — a too-rare example of government regulation getting out of the way and providing breathing room for new technology — has been a massive factor in enabling the growth of the internet as we know it over the last 24 years. Just because a multiplicity of voices are calling for change doesn’t mean that change is necessary or wise.