Is the Ice Breaking for Professional Speech?

It’s been all COVID-19 for the last couple of months, so I’m taking a break to take a look at a new professional speech case that I missed when it dropped in late February.

The case is Vizaline v. Tracy, out of the Fifth Circuit. And the thing I love about this case is that it takes on, directly, the fundamental issue I have with so many of the earlier professional speech cases: the idea that the gating function of professional licensing itself is somehow magically immune from First Amendment issues.  

Here’s what I mean. There’s little question that when it comes to the speech of professionals, the First Amendment applies. For example, there’s a well-established body of law relating to professional marketing speech, and an (admittedly underdeveloped) body of law when it comes to the speech professionals engage in with their clients. But at least the parameters are understood — the First Amendment applies, and we’re just negotiating about which standard of review the state has to live up to.

But something quirky happens when it comes to entry to the professions. In these cases, courts routinely handwave away the First Amendment issue, despite the fact that entry restrictions are sweeping: they keep the vast majority of the public from engaging in certain types of speech.

Weird, right?

Background

So, Vizaline. This company converts existing metes-and-bounds descriptions of real property — the raw data you’d find if you looked up property records at the county Recorder’s office — into simple maps. It sells these maps to community banks who would otherwise have to obtain surveys (from licensed surveyors, of course) on less-expensive properties used as collateral for mortgages.

It isn’t like Vizaline is passing itself off as something it isn’t. Vizaline does simple maps, and discloses that what they offer is “not a Legal Survey or intended to replace a Legal Survey.”

So naturally the Mississippi Board of Licensure for Professional Engineers and Surveyors got the state attorney general to sue Vizaline on its behalf. 

What for? “Surveying without a license,” that’s what for. Which honestly . . . doesn’t sound that awful, but which turns out to be both a civil and criminal offense in the Magnolia State. 

The Case

Represented by The Institute for Justice (who, along with the R Street Institute, are one of the only groups focused on the excesses of professional licensure), Vizaline contended that its maps are speech, and as such are entitled to First Amendment protection.

The District Court wasn’t having it. That court found no First Amendment issue, on the remarkable theory that the requirement of a license only “incidentally infringes” on Vizaline’s speech because the licensing requirement merely determines who can speak. [ed. note: LOL]

On appeal, the Fifth Circuit went straight to the Supreme Court’s 2018 NIFLA v. Becerra decision, noting that case had eviscerated the concept that the gatekeeping function of licensing acts like some sort of First Amendment get-out-of-jail-free card:

The district court’s holding that occupational-licensing provisions “do not trigger First Amendment scrutiny” is contrary to the Supreme Court’s decision in NIFLA. NIFLA makes clear that occupational-licensing provisions are entitled to no special exception from otherwise-applicable First Amendment protections.

Bam. For as the Supreme Court had noted in NIFLA: 

“All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.”

The Fifth Circuit panel described NIFLA as essentially eliminating the “professional speech doctrine” — described in this case as a doctrine excepting professional speech from ANY First Amendment scrutiny — and remanded to the District Court to determine whether Mississippi’s licensing requirements implicate speech or non-expressive professional conduct.

While the remand is understandable, it leaves one a little wanting, as the licensing requirements at issue seem to plainly implicate expressive conduct. But overall, Vizaline points in a hopeful direction, one where the “professional speech doctrine” takes on a new understanding as protecting both the First Amendment rights of professionals and those who approach the murky bounds of licensed professional activity. 

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