Will SCOTUS Address Professional Speech?

Watching with interest: whether the Supreme Court grants cert in Capital Associated Industries v. Stein, a 4th Circuit decision out of North Carolina addressing the interplay between legal licensing and the First Amendment.

While the Stein decision ultimately decides that regulation of the unlicensed practice of law is subject to intermediate scrutiny – and that the North Carolina UPL regulation meets that standard – the opinion suggests that restricting the provision of legal advice is merely conduct regulation, not speech regulation.

That doesn’t seem remotely right. Legal advice . . . is conduct?

Yes, yes – speech can be conduct under certain limited circumstances. But normally when we’re talking about speech-as-conduct we’re talking about consumer disclosure requirements or the things physicians have to say in order to obtain informed consent from their patients. The speech is such cases is treated as conduct because it’s incidental to the good or service at issue.

But legal advice? That’s speech, and, really, nothing BUT speech.

This is not to say that providing legal advice can’t be regulated — or even that intermediate scrutiny isn’t the right standard by which to judge such regulation (though Widener Law Dean Rodney Smolla makes a compelling case for strict scrutiny).

But it’s sloppy and unhelpful for courts to futz around and conflate concepts like “incidental effects on speech,” “speech-as-conduct,” and “bona fide licensing requirements” when talking about government restrictions on the content of speech. That’s going to continue to happen without a coherent approach to professional speech regulation. It would be great if the Supreme Court took this opportunity to finally sort things out on this, one of least-unexplored frontiers of First Amendment law.

Updated: Nope; cert denied. A shame.

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