(Page 2 of 2)
But this Rosemond case is the purest example of a blow to the First Amendment you can get—one of the most hallowed forms, the advice column, of our most hallowed arena of expression, the daily paper, shut down in the name of occupational licensing.
American government at all levels is occupational licensing crazy, enforcing licensing requirements on occupations such as tax preparers, tour guides, interior design, florists, stage dancers, hair braiding, and moving companies (where your competitor gets to decide if you can compete). One in three American workers likely have their jobs impacted by these regulations.
How did government officials—beyond pure idiotic officiousness—get the idea that they can ignore the First Amendment so blithely in the name of such a petty regulatory function as occupational licensing?
Paul Sherman, a litigator for IJ working on the Rosemond case, said the extent to which occupational licensing can be a legitimate excuse to squash speech “is definitely something lower courts are confused about. We’ve seen bad decisions [for speech] out of the 4th Circuit [Accountant’s Society v. Bowman, 1988], 11th Circuit [Locke v. Shore, 2011, involving interior designers], and 9th Circuit [National Association for the Advancement of Psychoanalysis v. California Board of Psychology].”
Many of the bad decisions for speech rely on a concurrence in a Supreme Court case from 1985, Lowe v. SEC, in which Justice Byron White (joined by two other justices) suggested, as put in an IJ backgrounder on the Rosemond case:
that the First Amendment applies to people who publish general opinions directed to the public at large (“Buy more oil stocks”), but that the First Amendment may not apply to certain experts who offer individualized advice to a specific person (“Mr. Smith, you should buy more oil stocks”).
Justice White’s concurring opinion did not command a majority of the Supreme Court, and thus has no binding effect on other courts. Moreover, in the nearly 30 years since that case was decided, the Supreme Court has never cited the three-Justice Lowe opinion, and has grown significantly more protective of a wide variety of speech. In fact, in 2010, the Supreme Court held that the First Amendment applies even to expert legal advice to designated terrorist groups in Humanitarian Law Project…
Some lower courts, however, have interpreted the Lowe concurrence to mean that occupational-licensing laws do not implicate the First Amendment, even when they are applied to silence pure speech like John [Rosemond]’s.
IJ has won some lower court victories in similar cases of occupational licensing or regulation used to squash speech, including in 2000 for online publishers of financial analysis that the Commodity Futures Trading Commission wanted to license, and 2004 for online real estate listers in California.
But there has been no authoritative doctrine laid down by the Supreme Court in recent times defining the parameters of when and where licensing laws can trump free speech. “This is one of the most important unanswered questions in First Amendment law, and the Supreme Court is going to have to resolve it sooner or later,” says IJ's Sherman. (A 1944 Supreme Court case, Thomas v. Collins, in which the court overthrew on First Amendment grounds a conviction under a Texas law requiring union recruiters to be registered with the state, is encouraging.)
The Supreme Court should authoritatively reconsider how and when states can restrict speech and publication in the name of occupational licensing. But in this case the violation of the First Amendment is so blatant that the state of Kentucky should just give up after what ought to be a swift and sure victory for Rosemond’s side.