This Private Eye Was Denied a License Because He Criticized Police

Free speech and occupational licensing collide.

Occupational licensing has already been called out for hobbling opportunity, impeding mobility, protecting established practitioners from competition, and for raising prices of goods and services. Now there's a new reason to object to turning working in a chosen field from a right into a privilege: the withholding of licenses as a means to punish those who criticize government officials. Specifically, Maine's Department of Public Safety is denying a private investigator's license to Joshua Gray because he publicly condemned a shooting by state troopers.

"Gray's problems with the Department began after he criticized the conduct of Maine police in the fatal shooting of 25-year-old Kadhar Bailey and 18-year-old Amber Fagre in February of 2017," the Institute for Justice (IJ) notes in an announcement that it has filed a petition for certiorari with the U.S. Supreme Court on his behalf. "Believing that the shooting could have been avoided had it not been for police recklessness, Gray expressed his criticisms on his Facebook page. But when Gray later applied for a license as a professional investigator in Maine, the Department denied Gray's application on the ground that his online criticism contained factual errors, and therefore he lacked the 'good moral character' required for licensure."

Gray has a contentious history with the authorities in Maine. A long-established private investigator in Massachusetts, he was arrested in 2011 for working without a license in the Pine Tree State. Charges were dismissed by a judge who pointed out that Gray was being prosecuted under a law that didn't exist at the time of the alleged offense. Which is to say, abusive occupational licensing enforcement played a role in his life even before the recent conflict.

So, it's fair to assume that Gray was already on the radar of Maine authorities when he criticized state troopers' conduct in the controversial 2017 incident. His application for a private investigator's license might well have stuck in the craws of officials who screwed up their earlier court case against him and had the opportunity to slap a critic through regulatory means. There's really no question that the denial was punishment for Gray's comments on Facebook.

"In this case, the Department's Notice of Denial shows that Gray's application was denied because of the statements that Gray made on social media," Maine Superior Court Judge Michaela Murphy wrote in 2019 on the way to remanding the case to the Department of Public Safety for reconsideration. "Further, the notice shows that the Department's denial was based upon its disagreement with the viewpoints expressed in these statements. The Department reasons that Gray should not receive a private investigator's license as the statements show that he is incompetent and lacks the necessary fitness of character. This finding is in turn based solely on what the Department characterizes as 'materially false' statements that Gray has made publicly. In other words, it is based on the Department's disagreement with Gray's publicly stated opinion that the State Trooper is a dirty cop with a history of internal affairs problems who committed murder."

Unfortunately, upon reconsideration, officials annoyed by Gray's comments just repeated their earlier denial of his license application. The Maine Supreme Court rubber-stamped that decision in the spring of this year, saying it was OK to deny the license because of "false, uninvestigated information that Gray presented as fact." That is, the court agrees that it's OK to withhold permission to work because of disagreement with what somebody says.

IJ notes that the Maine Supreme Court's decision conflicts with the U.S. Supreme Court's 2018 ruling in National Institute of Family & Life Advocates v. Becerra that licensing isn't an end-run around free-speech protections. 

"This Court has not recognized 'professional speech' as a separate category of speech," Justice Clarence Thomas wrote for the majority in that case. "Speech is not unprotected merely because it is uttered by 'professionals.'"

But, rather than get into the legal weeds, let's just note again that nobody disputes the point that Joshua Gray was denied a license to work as a private investigator just because his opinions offended officials. The disagreement is over whether or not it's acceptable to punish him for his speech by denying him an occupational license. Honestly, that's good enough reason to look askance at the whole business of requiring licenses to work. The conversion of practicing in a chosen field from a right into a privilege that can be withheld to penalize people for exercising the fundamental right to speak freely and criticize official conduct makes licensing too dangerous a barrier to permit to exist.

It's not as if there aren't already plenty of reasons to object to occupational licensing.

"Today, almost 30% of jobs in the United States require a license, up from less than 5% in the 1950s," the Biden administration pointed out in July in a repetition of warnings by the Trump and Obama administrations of the damage done by requiring people to seek permission to enter trades and professions. "Fewer than 5% of occupations that require licensing in at least one state are treated consistently across all 50 states. That locks some people out of jobs, and it makes it harder for people to move between states."

"Occupational licensing regulations sometimes have a blanket prohibition on individuals with any criminal convictions, or 'good moral character' clauses that allow a licensing board to deny a license for an arrest without conviction," the Council of State Governments objected early this year. "This contributes to a large segment of the population being unable to work, even if their arrest or conviction occurred years prior to their application."

"The higher the rate of licensure of low-income occupations, the lower the rate of low-income entrepreneurship," found a 2015 report from the Goldwater Institute. "The states that license more than 50 percent of the low-income occupations had an average entrepreneurship rate that was 11 percent lower than the average for all states, and the states the licensed less than a third had an average entrepreneurship rate that was about 11 percent higher."  

Occupational licensing reduces economic and physical mobility, blocks opportunity, and limits competition for those already admitted to a field, thereby reducing choice and raising prices. And now, licenses are being used as a means to punish people who exercise their right to criticize official conduct. We knew that licensing was a threat to prosperity and now we know that it endangers liberty. It needs to go.