Free Speech

"Vocational Training Is Speech Protected by the First Amendment"

Ninth Circuit allows plaintiffs to challenge California statute that bars students from attending some for-pay trade schools unless the students have a high school diploma, have a GED, or can pass a government-prescribed test.

|The Volokh Conspiracy |

From yesterday's decision in Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, written by Judge Jay Bybee and joined by Judges N. Randy Smith and Michael Melloy (8th Cir.). (I had filed an amicus brief in support of the School on behalf of Profs. Jane Bambauer, David Bernstein, Clay Calvert, and Mark Lemley, Dean Rodney Smolla, and myself; many thanks to UCLA School of Law students Tyler Hastings, Nicole Karatzas, and Brigid Mahoney, who worked on the brief):

Plaintiff Bob Smith is an experienced farrier and offers classes for those who would like to learn the art and craft of horseshoeing. Plaintiff Esteban Narez is experienced with horses and would like to enroll in Smith's classes to become a professional farrier…. But because Narez does not have a high school diploma or GED, California's Private Postsecondary Education Act of 2009 … prohibits him from enrolling in Smith's courses unless Narez first passes an examination prescribed by the U.S. Department of Education. {[Narez alleges that, b]ecause he works seven days a week, [he] does not want to forgo income to study for a test that has no relevance to horseshoeing.}

[I]f Smith were running a flight school or teaching golf, dancing, or contract bridge, Narez could enroll without restriction…. We conclude that plaintiffs have stated a claim that the PPEA burdens their rights under the First Amendment…. We therefore reverse and remand to the district court for further proceedings.

The court concluded that the Act was a speech restriction:

In our view, California "is wrong that the only thing actually at issue in this litigation is conduct." Holder v. Humanitarian Law Project (2010). Although the PPEA is a form of education licensing by the state, the First Amendment deprives the states of "unfettered power to reduce a group's First Amendment rights by simply imposing a licensing requirement." Nat'l Inst. of Family & Life Advocates v. Becerra (2019).

California points out that the Act regulates enrollment agreements. We agree, but when the Act is viewed in its entirety, it becomes clear that it controls more than contractual relations. It also regulates what kind of educational programs different institutions can offer to different students. Such a regulation squarely implicates the First Amendment. See Humanitarian Law Project (noting that a law which "may be described as directed at conduct" nevertheless implicates speech where "the conduct triggering coverage under the statute consists of communicating a message").

There can be little question that vocational training is speech protected by the First Amendment. Smith's "speech to [students] imparts a 'specific skill' or communicates advice derived from 'specialized knowledge.'" Humanitarian Law Project. "Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs." Sorrell v. IMS Health Inc. (2011). And, important to this case, "[a]n individual's right to speak is implicated when information he or she possesses is subjected to 'restraints on the way in which the information might be used' or disseminated." Id.

Furthermore, "the Constitution protects [Narez's] right to receive information and ideas." We have explained that when there is "a speaker who is willing to convey … information," state "restriction[s] of the right to receive information" produce "actual injury" under the First Amendment. This right to receive information naturally extends to educational settings. Thus, the PPEA implicates the First Amendment by restricting the rights of both speakers (Smith) and would-be listeners (Narez).

The court recognized that the government is free to regulate businesses, including ones that provide education, in various ways (e.g., by imposing generally applicable tax laws or zoning laws). But heightened First Amendment scrutiny is required when, as in this case, such a regulation "differentiates between speech or speakers":

California's PPEA is riddled with exceptions to the ability-to-benefit rule, and the exceptions turn on one of two things: (1) the content of what is being taught, or (2) the identity of the speaker. Together these exceptions demonstrate that the Act does more than merely impose an incidental burden on speech: it "target[s] speech based on its communicative content." …

An ability-to-benefit student (one not holding a high school diploma or a GED) may not enroll in a for-profit postsecondary educational institution without meeting the ability-to-benefit requirement. But the Act contains a number of exemptions that turn on the nature of what is being taught. If, for example, the course is "solely avocational or recreational," then the course is not covered by the ability-to-benefit requirement. If, however, the course's content is not "solely avocational or recreational," the restriction is triggered and covered institutions cannot enroll certain students.

The fact that the Act distinguishes between, say, golf lessons because they are "solely avocational or recreational," and horseshoeing lessons because they are not, is significant—even if we assume that the state has no particular interest in encouraging speech related to golf lessons or suppressing speech related to horseshoeing. See Reed v. Town of Gilbert (2015) ("[A] speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter."). Communication of factual information about horseshoeing surely qualifies as protected free speech the same as communication about golf. See Sorrell (explaining that conveying factual information constitutes "the creation and dissemination of information are speech within the meaning of the First Amendment"). The Act excepts other courses as well. See, e.g., Cal. Educ. Code § 94874(d)(1) (exempting test preparation courses for standard examinations), (d)(2) (exempting test preparation courses for continuing education or license examinations), (j) (exempting flight instruction courses).

Second, the PPEA distinguishes between speakers…. For example, the Act exempts "educational programs sponsored by a bona fide trade, business, professional, or fraternal organization, solely for that organization's membership." There is a similar exemption for "a bona fide organization, association, or council that offers preapprenticeship training programs" approved by the California Workforce Development Board. Id. § 94874(b)(2)(A). There are exemptions for "[a] state-recognized professional licensing body … that licenses persons in a particular profession, occupation, trade, or career field" or "[a] bona fide trade, business, or professional organization"; for nonprofit religious organizations {[an] exemption [that] comes with its own content-based restriction[,] "The instruction is limited to the principles of that religious organization …."}; for "[a]n institution that does not award degrees and that solely provides educational programs for total charges of [$2500 or less]"; for a "nonprofit public benefit corporation"; and for certain nonprofit "community-based organization[s]." id. § 94874(k)(1).

The PPEA thus favors particular kinds of speech and particular speakers through an extensive set of exemptions. See Sorrell ("[The state's] law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers."); U.S. v. Playboy Entm't Grp., Inc. (2000) ("Not only does [the statute] single out particular programming content for regulation, it also singles out particular programmers."). That means the PPEA necessarily disfavors all other speech and speakers. See Sorrell.

Sorrell is instructive in understanding these principles. There, the Supreme Court struck down a Vermont law that prohibited pharmacies from selling doctors' prescribing records to pharmaceutical companies, which the companies could then use to market prescription drugs to specific doctors. The statute, however, exempted entities that did not use the information for marketing purposes. And if the information somehow ended up in the hands of a pharmaceutical company, the statute proscribed that company's use of the information to market drugs to doctors absent certain circumstances. Pharmaceutical and data-mining companies challenged the law, claiming a violation of their First Amendment right to disseminate information….

Sorrell controls this case. The PPEA's operative impact is similar to that of the Vermont statute held unconstitutional in Sorrell. In both schemes, the speaker is the one being forbidden to act: private, for-profit postsecondary institutions here and pharmaceutical companies in Sorrell. And in each case, a violation occurs because of who the listener is and the message the speaker seeks to convey. In Sorrell, the listener was the doctor and the forbidden topic was the marketing of prescription drugs. Here, the listener is a student without a high-school education and the topic is vocational education. Thus, the PPEA's overall statutory scheme precludes certain would-be students from taking a course when the institution would otherwise admit such students "because of the topic discussed." …

In sum, we agree with the plaintiffs that the PPEA "requires authorities to examine the contents of the message to see if a violation has occurred." Tschida v. Motl (9th Cir. 2019). We thus agree that the statutory scheme here not only implicates speech, but also engages in content discrimination. Moreover, because content discrimination is apparent, the district court should have applied some form of heightened scrutiny.

The court then remanded so the district court can resolve whether the law should be viewed as a restriction of "commercial speech" (which is subject to broad protection but not full protection) or as a restriction of fully protected speech:

The parties did not brief the question of whether the PPEA regulates commercial speech and, if so, what level of heightened scrutiny should apply here…. We will leave it to the district court on remand to determine whether this case involves commercial or non-commercial speech, whether California must satisfy strict or intermediate scrutiny, and whether it can carry its burden under either standard. Cf. NILFA (declining to decide what heightened standard of review applies because the law "cannot survive even intermediate scrutiny"); Sorrell ("[T]he outcome [in this case] is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied."). We simply hold that, because California's PPEA regulates the content of speech, plaintiffs have stated a First Amendment claim.

I think the school's educational programs are fully protected speech, not "commercial speech," even though they are sold like money (as are books, newspapers, and the like). See, e.g., Joseph Burstyn, Inc. v. Wilson (1952) ("It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment."). I expect the district court to so conclude on remand, or perhaps conclude that the law is unconstitutional regardless of whether the speech is treated as commercial.

NEXT: Both Left and Right Should Stop Blithely Wishing for a New Civil War

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  1. Part of me is amazed (but not surprised) that California decided to put such a law into place. “You need a GED or high school diploma in order to attend a horseshoeing course”

    Unbelievable.

    1. My doctoral research involved reading the educational laws of all 51 jurisdictions. Some only had a few chapters, most had one book — California had a whole shelf. California and Texas were both outliers, California by far the most extreme — so I am not surprised.

      The big question is if State/Federal Financial Aid Money is involved, that might make this legitimate. Wasn’t there a scandal involving Concordia University? (Although I think the bigger scandal involves the regular colleges.)

  2. But yet again, an upper court ruling just kicks an obvious violation of rights back down to the lower courts, potentially mooting the victory if the “winning” party cannot keep funding the lawyers and courts.

    American jurisprudence has become a perpetual shakedown racket for members of the bar, whether they are an advocate or on the bench.

    1. Agreed; I’d like to see fewer appeals courts returning cases for reevaluation consistent with the appeals court’s ruling, and more of them just deciding the damned case, right there on the spot.

      The Supreme court is particularly bad about this. They need to recognize that the process IS the punishment, and stop dragging things out this way.

  3. Again commercial speech gets a slight. I understand “profit” disgusts some people, especially those who would rather tell others how to earn a living than have to touch filthy lucre during their work day, but how the First Amendment can be found to distinguish commercial from other speech is beyond me. IANAL I guess.

    What really puzzles me is that there seems to be an increasing use of Freedom of Speech for economic rights, as if the earlier rush to condemn economic liberty (during FDR’s time? Lochner era? I do not know the history well) is now seen as perhaps overreach, but instead of recognizing economic liberty, they backdoor the worst cases through Freedom of Speech. Sort of like refusing to recognize that the Slaughterhouse cases were a disgusting repudiation of the 14th Amendment privileges and immunities, and instead incorporating each of the Bill of Rights amendments piecemeal by the due process clause.

    Sometimes the legal profession amazes me with its clarity and elegance. Other times it amazes me with its blind rigidity and loyalty to mistakes and subterfuge. I guess what it really shows is how little I understand it.

    1. The reason the Lochner era is so hated isn’t simply because it recognized a doctrine of economic liberty, but because it applied it to situations where the “liberty” asserted was the freedom to enter into exploitative labor contracts.

      That, I think, is what libertarians don’t get about Lochner. It isn’t horrible to think that if two people with relatively equal bargaining power want to enter into a contract, that represents some basic human freedom. It’s horrible to use such a doctrine to strike down laws meant to improve the working conditions of common laborers. And that’s what the Lochner era was all about.

      1. I understand that busybody aspect entirely. Restricting freedom of individuals in the name of looking out for the common man has always been a sorry excuse. If they really cared about individuals, and not their own control of State power, they’d have found ways to educate the public on their rights.

        If there were one baker’s monopoly which controlled all hiring for all bakers in an area, there might have been some justification for the notion of exploitation. But if they cared about employer monopolies, they’d have knocked down employee monopoly unions too.

        It is all about State power in the “right” hands, nothing to do with actually caring about people. Always has been, always will be.

        1. Wage markets aren’t as simple as you say. There’s cartels, market signaling, restrictions on collective bargaining, and a loose labor market.

          People have to live. Wage regulations are reasonable.

          1. People will live better without the government stepping in to protect them from evil capitalists.

      2. This is more political than legal — would the Lochner era be viewed differently had the modern welfare state existed then?

      3. “It’s horrible to use such a doctrine to strike down laws meant to improve the working conditions of common laborers. And that’s what the Lochner era was all about.”

        And what if the laborers in question don’t think the law in question improves their working conditions?

        1. Then they are slackers, wreckers, kulaks, and they are especially in need of re-education.

      4. “but because it applied it to situations where the “liberty” asserted was the freedom to enter into exploitative labor contracts.”

        Well, duh: No right is real if you can only invoke it where other people agree with your choice. The whole point of the concept of rights is that YOU get to make the call, not somebody else!

        And in our society, efforts to deprive people of their choices are basically always going to be described by their advocates as “protecting” people from “exploitation”.

        And economic interactions are always a matter of mutual exploitation, where each of the participants has come ahead according to their own accounting. So, as a practical matter, if you’re not willing to defend the freedom to be “exploited”, you’re not going to be defending economic freedom at all.

        1. That position could justify the right to sell oneself into slavery.

          If you wonder why basically every political system in the world rejects your philosophy, this should tell you.

          1. Basically every political system in the world rejects libertarianism, for the same reason basically every thief in the world rejects property rights: The whole POINT of political systems is to violate rights! Government really is nothing more than organizing violation of rights, instead of doing it ad hoc.

            1. Brett, the whole point of political systems, actually, is to protect your property rights. In a state of nature, nobody has property rights; might makes right.

              So the government is organized and a police force and a military and a legal system are all created that allow a person to protect their property without having to be the strongest person in the tribe. But they don’t protect your property rights absolutely, because part of the deal is that you have to contribute to the commonweal and not abuse your fellow citizens.

              The reason why your version of libertarianism hasn’t taken hold any is because property owners are better off under a system of government than they are under anarchy.

              1. You’re mixing up pretext and purpose; Like any protection racket, government claims to be protecting you, and may even do so occasionally to keep competing protection rackets from moving in, but in the end the protection you’re buying is from the government itself. If you doubt this, try not paying.

          2. Slavery is incompatible with individual liberty for the basic reason that it is unenforceable. What if I tell the sheriff you are my slave? How can you refute that? I show an ownership contract. How do you refute that?

            A slave can’t refute squat, because he is a slave, I own him, and nothing he says is valid, because he is a slave.

            You wanna stretch absurdity, I can do that too.

      5. And that’s what the Lochner era was all about.

        Or, it was about rent seeking by special interests.

  4. “Michael Melloy (8th Cir.)”

    Why is he in the 9th?

    1. This happens all the time. District Court judges, and judges from other circuits, sit on three-judge panels when the circuit is short judges. I’m not sure the Ninth is short many judges now, so we may see less of it, but it’s very common.

  5. This seems like one of many examples where an obviously dumb law gets struck down under one constitutional provision while, in any sane world, there would be an entirely different way to do this.

    Realistically, this shouldn’t be sorted out under free speech law but under substantive due process or the dormant commerce clause. Some kind of constitutional requirement that laws should be at least minimally non-stupid.

    But ever since Richard Posner, of all people, upheld a ban on slaughtering horses for human consumption that didn’t cover slaughtering horses to make dog food nor banned eating horse meat, I’ve pretty much given up on substantive due process outside of the privacy context.

  6. Why do you need a high school diploma to show horses?

    1. The theory is that you need a high school diploma(/GED) for vocational training in general. The idea was basically to go after diploma mills that exploit stupid people (a group having a strong correlation with high school dropouts) with promises of worthless vocational training.

      1. The problem being that, in general, vocational training is actually quite valuable, and not all vocations require a lot of general education.

        The legal problem being that education consists essentially entirely of 1st amendment protected speech.

      2. Griggs v Duke Power should have disposed of that argument a back in the 70’s. That case introduced “disparate impact” saying requiring a high school education to be a janitor had a disparate impact on minorities unless Duke could show a concrete relationship between having a diploma and being a successful janitor.

        California’s law does have a disparate impact on minorities too, and they should have to justify why a course of study needs a HS diploma or GED to benefit, rather than just decreeing it’s required. Farriers, welders, hairdressers, barbers, etc, shouldn’t need a diploma to be successful at those careers.

        And shame on California and other states for victimizing poor people by their overweening paternalism.

        1. Kazinski — On what basis do you conclude career considerations are the only metric a state may consider when it mandates a requirement for public education.

    2. It also applies to nails and beauty and barbering and massage schools in California.

      The idea that poor uneducated people can make a living is too dangerous to survive. It’s ridiculous enough someone needs 400+ hours to learn to do nails, but they have to have a HS diploma or pass a GED before they can even attend nails school is Kafkaesque.

  7. Why didn’t the district court reach this result on their first attempt? This seems obvious.

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