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.

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