Nevada Ends Weird Requirement Demanding Licenses Just to 'Furnish Information'
Attempt to regulate private detectives ends up in an odd place.
The liberty lawyers at Pacific Legal Foundation (PLF) have chalked up a win (a modest one) against licensing requirements. The state of Nevada licenses private investigators using a definition of "information" that is remarkably broad, and furthermore required investigators to have their business in Nevada. Pacific Legal sued. Here's the basics from PLF attorney Timothy Sandefur:
We recently sued Nevada over a law that requires all "private investigators" to get a government license—but defines the term "private investigator" so broadly that it applies to anyone who "furnishes information." That is to say, you'd have to get a government license to write a biography of Thomas Jefferson, or research your family history, or write a poem. That violates the First Amendment. The law also required any private investigator to locate his business in Nevada—which also violates the Constitution, since states are barred from discriminating against business owners from other states.
We challenged the law on behalf of California-based investigator Troy Castillo, who does not have a business office in Nevada, and should not be forced to get one. The state responded that there was nothing objectionable about forbidding people from "furnishing information" until they had been "thoroughly vetted" by the government. It also claimed there was nothing wrong with Nevada discriminating against people from other states. Never mind more than two centuries of Supreme Court precedent to the contrary.
Even more amusingly, the government's lawyer argued that the state could not be blamed for defining "private investigation" so broadly that grandmothers looking up family trees in the county libraries would need to get licenses from the government, because it is "difficult to define" the term "private investigator." Citing Justice Stewart's famous definition of obscenity, government attorneys argued that "[you] know it when [you] see it.'" Of course, even if it were "difficult to define" the practice of private investigation, that cannot justify imposing a prior restraint on the exercise of First Amendment speech. As the Ninth Circuit once observed, it may be "easier to make 'I know it when I see it' decisions . . . than to come up with a general rule, but we must nonetheless try."
Nevada has subsequently passed new legislation, AB 173, to fix this issue, and the governor has signed it. The law eliminates the in-state office requirement and clarifies that the licensing requirement does not apply to people who are accessing "public information." That still seems awfully vague, but as Sandefur notes, "it seems to mean that reporters, genealogists, and poets are not at risk of prosecution for 'furnishing information' without government permission."