Free Speech

Denials of Professional Licenses Based on Past Social Media Posts

Joshua Gray was denied a Maine private investigator license on the ground that his past posts erred in criticizing a Maine State Police lieutenant; we’ve filed an amicus brief supporting the petition asking the Supreme Court to review the matter.


My UCLA First Amendment Amicus Brief Clinic students Max Hyams, Eimile Nolan, and Simon Ruhland and I have just filed an amicus brief on behalf of the Foundation for Individual Rights in Education in support of the cert. petition in Gray v. Maine Department of Public Safety. Here's the summary of the case from the opinion below:

Joshua A. Gray appeals from a judgment of the Superior Court affirming the Department of Public Safety's denial of Gray's application for a professional investigator license based on posts and comments that Gray made on social media, using an account bearing the name of his out-of-state private investigation business, concerning a Maine State Police lieutenant.

Gray argues that the court erred in concluding that the Department had not, in denying his application, violated his free speech rights …. Although Gray challenges the determination that he acted with "actual malice" in posting and commenting on social media, we conclude that actual malice need not be shown and that we must apply intermediate scrutiny to review the licensing standards as applied to Gray here. Applying that standard, we affirm the judgment.

And here's our brief:

Summary of Argument

Nearly a quarter of American workers are in occupations subject to licensure requirements. Paul J. Larkin, Jr., Public Choice Theory and Occupational Licensing, 39 Harv. J.L. & Pub. Pol'y 209, 210 (2016). Still more Americans are students at universities or in other programs who are seeking to become licensed professionals.

If they could lose their licenses, or be denied licenses, or be expelled from licensing programs because of their public speech on controversial issues, they would be powerfully chilled from engaging in such speech. Many professionals and would-be professionals would thus feel pressured to "'steer … wider of the unlawful zone'" and remain silent on issues of public concern, such as police misconduct. New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). As a result, the government could indirectly silence criticism and prescribe ideological orthodoxy.

Participants in "public debate," in particular, routinely make honest mistakes, and thus utter "erroneous statement[s]." Id. at 279, 271. That is also true in public speech about public officials such as police lieutenants. See id. (holding that a police commissioner is a public official); Coughlin v. Westinghouse Broad. & Cable Inc., 780 F.2d 340, 342 (3d Cir. 1986) (holding that even a rookie patrol officer is a public official). Were licensing boards free to deny licenses to applicants for mere errors—without having to prove "actual malice"—there would be a vast pool of errors to select from. To the chilling effect described above would then be added a broad opportunity for viewpoint-discriminatory judgment about just which errors warrant the denial of a license.

This road to censorship, paved by the decision below, is inconsistent with this Court's precedents. Those precedents have declined to recognize a general exception for "professional speech." They have reject­ed a balancing-of-social-values approach to recognizing new First Amendment exceptions. And they have instructed that content-based speech restrictions falling outside of the recognized exceptions are subject to strict scrutiny.

This case provides a good vehicle for diminishing the risk of such censorship, by resolving the split among state and federal courts on the standard of review applicable to professional speech restrictions and speech-based licensing decisions. The petition for certiorari should thus be granted.


[I.] Lower courts are split and uncertain on the proper standard for evaluating restric­tions on professional speech.

Lower courts are divided on how to evaluate profess­ional speech restrictions, wheth­er those restric­tions threaten denial of a license, withdrawal of a license, or other disciplinary action. (Just as decisions not to hire employees based on political affiliation are subject to the same First Amendment standards as decisions to fire employees based on political affiliation, Rutan v. Republican Party of Illinois, 497 U.S. 62, 65 (1990), decisions not to license professionals based on their speech should be subject to the same First Amendment standard as decisions to withdraw a license based on speech.)

"Speech is not unprotected merely because it is uttered by professionals." Nat'l Inst. of Fam. & Life Advocs. (NIFLA) v. Becerra, 138 S. Ct. 2361, 2371-72 (2018). Though government power "to regulate the professions is not lost whenever the practice of a profession entails speech," "the principle that the government may restrict entry into professions and vocations through licensing schemes has never been extended to encompass the licensing of speech per se or of the press." Lowe v. SEC, 472 U.S. 181, 228, 229-30 (1985) (White, J., concurring in judgment). Yet lower courts are unclear on just which test applies to content-based restrictions on professional speech:

[1.] Some courts have applied strict scrutiny. See Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020) (as to restriction on sexual orientation conversion therapy); Taking Offense v. State, 281 Cal. Rptr. 3d 298, 316 (Cal. App. 2021) (as to law prohibiting long-term care staff from addressing facility residents by non-preferred pronouns).

[2.] Some courts have applied intermediate scrutiny. See King v. Governor, 767 F.3d 216, 234 (3d Cir. 2014) (as to restriction on sexual orientation conversion therapy); AMA v. Stenehjem, 412 F. Supp. 3d 1134, 1148-49 (D.N.D. 2019) (as to requirement that physicians inform patients that the effects of abortion-inducing drugs are reversible).

[3.] One has applied rational basis scrutiny, at least as to speech to a client. See Pickup v. Brown, 740 F.3d 1208, 1231 (9th Cir. 2014) (as to restriction on sexual orientation conversion therapy).

[4.] Others have declined to conclusively adopt a single standard. See Moore-King v. County of Chesterfield, 708 F.3d 560, 568 (4th Cir. 2013) (concluding that neither strict nor intermediate scrutiny is a "perfect fit" for professional licensing requirements, in that case as to fortune tellers); Vizaline, L.L.C. v. Tracy, 949 F.3d 927, 934 (5th Cir. 2020) (declining to "express [a] view on what level of scrutiny might be appropriate" for evaluating licensing requirements for land surveyors).

[5.] One court even went through each rung of the scrutiny ladder before an en banc panel finally disposed of the case without deciding conclusively on whether intermediate scrutiny or strict scrutiny should apply. See Wollschlaeger v. Governor, 760 F.3d 1195, 1218-19 (11th Cir. 2014) (applying rational basis review to a regulation prohibiting physicians from inquiring into patients' firearm ownership); Wollschlaeger v. Governor, 797 F.3d 859, 892-94 (11th Cir. 2015) (applying intermediate scrutiny); Wollschlaeger v. Governor, 814 F.3d 1159, 1190-91 (11th Cir. 2015) (applying strict scrutiny); Wollschlaeger v. Governor, 848 F.3d 1293, 1308-11 (11th Cir. 2017) (en banc) (declining to decide on a standard of review but holding that the regulations failed even under intermediate scrutiny).

Lower courts need guidance from this Court on this important question.

[II.] The court below erred in failing to apply strict scrutiny.

The Department's denial of Gray's license should be subject to strict scrutiny. There is no "professional speech" exception to the First Amendment. Gray's speech was not merely incidentally burdened as a part of a broader regulation of professional conduct. And the Department denied Gray's license based on the communicative impact of Gray's speech.

[A.] The denial of the license was not a regula­tion of professional conduct that only incidentally affected speech.

The court below acknowledged that there is no categorical First Amendment exception for "professional speech." Pet. 11a (citing NIFLA, 585 U.S. at 2371-72). But it nevertheless concluded that the Department's denial of Gray's license was a regulation of professional conduct that only incidentally impacted speech, and was thus not subject to strict scrutiny. Pet. 17a.

Yet there was no other professional conduct here to which the speech would be "incidental." Gray's speech was not "tied to [any physical] procedure." NIFLA, 585 U.S. at 2373; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (rejecting an "asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State"). It was not said pursuant to any obligation of professional conduct involving a client.

It was said to the public, and was part of public debate. It was thus fully protected by the First Amendment. See NIFLA, 585 U.S. at 2371 (holding that a law compelling crisis-pregnancy centers to post notices at their facilities did not fall within a First Amendment exception, though the speech was seen by clients); Lowe, 472 U.S. at 204 (construing a statute narrowly to avoid having it restrict dissemination of opinions about investments to the public).

[B.] The proper standard for evaluating this speech restriction is strict scrutiny, not intermediate scrutiny.

A restriction on conduct is treated as a speech restriction when "as applied to [the challenger] the conduct triggering coverage under the statute consists of communicating a message." Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). And such a restriction is treat­ed as a "content-based regulation of speech" when the government's action "depends on what [the challenger] say[s]." Id. at 27.

Thus, for instance, Cohen v. California, 403 U.S. 15 (1971), "involved a generally applicable regulation of conduct, barring breaches of the peace." Holder, 561 U.S. at 28. But this Court "recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message." Id. at 29. And thus "when Cohen was convicted for wearing a jacket bearing an epithet," the Court applied "more rigorous scrutiny" than United States v. O'Brien intermediate scrutiny. Id. at 28. Today, that standard would be strict scrutiny. See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (citing Cohen as an example of a content-based speech restriction, and concluding that strict scrutiny should apply to such restrictions). The same approach should apply here.

It was the communicative content of Gray's speech that triggered coverage under the statutes, because the board concluded that his speech showed a lack of moral character and competency. Pet. 6a; cf. Cohen, 403 U.S. at 18 ("The conviction quite clearly rest[ed] upon the asserted offensiveness of the words Cohen used to convey his message to the public"). A law is "content based if it require[s] enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred." McCullen v. Coakley, 573 U.S. 464 (2014). That surely occurred here.

The court below believed that applying intermediate scrutiny was a "'sensible result … [that] fits neatly with the broad leeway that states have to regulate professions,'" while still providing speakers some measure of protection. Pet. 15a (quoting Capital Associated Indus. v. Stein, 922 F.3d 198, 209 (4th Cir. 2019)). But new First Amendment exceptions cannot be established by "ad hoc balancing of relative social costs and benefits." United States v. Stevens, 559 U.S. 460, 470 (2010). There must instead be "persuasive evidence … of a long (if heretofore unrecognized) tradition" of imposing content-based laws under the circumstances before a new exception is recognized. Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 792 (2011).

The Department here has offered no such evidence of a tradition of denying professional licenses based on an applicant's political speech supposedly bespeaking a lack of moral character or competence. And amicus is unaware of any such evidence. Rather, it has long been clear that "[g]overnment censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determining 'moral character,' than if it should be attempted directly." See Konigsberg v. State Bar of Cal., 353 U.S. 252, 269 (1957) (holding that an "inference of bad moral character" could not be "drawn from" a bar applicant's editorials which "severely criticized" public officials over the Korean War").

Indeed, even when the government is controlling the speech of its own employees—people whom it pays money to do a job—such speech is still generally protected "absent proof [that the employees made the] false statements knowingly or recklessly." Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, 391 U.S. 563, 574 (1968). At least the same protection should be offered when the government licenses private businesspeople, and where the government's special interest in selecting its own paid agents is not implicated. See Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign").

Thus, because the licensing rules applied here could not be justified under any First Amendment exception, and because they "impose … content-based restrictions on speech," the application of the rules "can stand only if [it] survive[s] strict scrutiny." Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015) (internal citations and quotations omitted). The court below erred in failing to apply strict scrutiny.

[III.] Any standard less protective than "actual malice" would unduly chill speech.

The decision below, if upheld, would sharply restrict public debate by the tens of millions of Americans who are subject to professional licensing rules. That is partly so because such speakers will realize that public commentary inevitably involves the risk of some error. And it is partly so because even accurate statements might be erroneously treated as falsehoods by licensing board members, or targeted for punishment because of the viewpoint they express.

This is especially likely because of the common human tendency—shared by licensing board members as well as others—to judge more harshly people whose ideological views they disagree with. A liberal board might give the benefit of the doubt to possibly inaccurate statements critical of police officers, but come down hard on possibly inaccurate claims that a police-shooting victim was a repeat violent criminal; a conservative board might do the opposite. Indeed, the board that denied Gray's license, for instance, includes two members of the state police force. 32 M.R.S. § 8103-A(3)(A). It is only human nature for them to be particularly incensed by criticisms of a police lieutenant.

The court below reasoned that, because Gray "presented as fact" certain false, uninvestigated information, the Department's "rationale for its [denial went] to the heart of professional responsibility concerns" of a profession "focused on the investigation and accurate communication of facts." Pet. 20a. Yet under this reasoning, whenever a professional opines on a breaking public controversy involving a topic within his general expertise—a controversy where facts are necessarily uncertain and limited—and his statements turn out to be false, that error can form the basis of a denial or revocation of a license.

Doctors would thus be chilled from publicly discussing how to react to a new disease, given the inevitable risk of error. See, e.g., Brit McCandless Farmer, March 2020: Dr. Anthony Fauci Talks with Dr. Jon LaPook about COVID-19, CBS News (Mar. 8, 2021) (reporting on an interview of Dr. Anthony Fauci where he stated that there is "no reason to be walking around with a mask"). Lawyers would be chilled from publicly debating a new legal proposal, or opining on a newly filed criminal or civil case. Opening the doors to liability for these factual missteps would inhibit the lively exchange of ideas within professions and prevent the emergence of a "clearer perception … of truth, produced by its collision with error." New York Times, 376 U.S. at 279 n.19 (internal citation omitted).

And this would naturally extend to law students, medical students, and students in other institutions that prepare people for a professional career. Indeed, universities are already beginning to suppress controversial student speech on the grounds that it supposedly indicates a poor professional disposition. In Hunt v. Bd. of Regents of Univ. of New Mexico, for instance, a medical student was disciplined by the university because it viewed his harsh criticisms of abortion to be "unprofessional." 792 F. App'x 595, 598 (10th Cir. 2019). The Tenth Circuit held that defendants were protected by qualified immunity, precisely on the view that the law here was too "unsettled" to provide adequate guidance to government officials. Id. at 604.

In Ward v. Polite, a student was expelled from a counseling degree program because she asked her supervisor to refer a gay client to another student counselor—something that program administrators viewed as contrary to professional ethics, even though "the school [did] not have a no-referral policy for practicum students and adhere[d] to an ethics code that permits values-based [referral]." 667 F.3d 727, 730 (6th Cir. 2012). The Sixth Circuit held that the student's case could go to the jury, because "a reasonable jury could find" that referrals were permitted, "and that the university deployed [its supposed concerns] as a pretext for punishing Ward's religious views and speech." Id. at 735.

Likewise, amicus is currently representing Kimberly Diei, a pharmacy school student who was nearly expelled for her social media posts about sex, which the school apparently viewed as "crude" and unduly "sexual" and thus inconsistent with "professionalism." Complaint, Diei v. Boyd, No. 2:21-cv-02071, ¶¶ 74, 82 (W.D. Tenn. Feb. 3, 2021). The expulsion was only reversed after a letter from amicus, id. ¶¶ 90, 91; Diei is now suing the university for violating her free speech rights. Id.

The decision below gives the green light to these sorts of restrictions, and more—restrictions that would sharply deter university professional students, lawyers, doctors, private investigators, and nearly a quarter of all working Americans from participating in important public debates.


The holding of the court below endorses broad government power to punish professionals and would-be professionals for their speech—power inconsistent with this Court's decisions, and with decisions of other lower courts. Granting the petition for certiorari would let this Court clarify the standard applicable to regulations of professional speech, and forestall a regime in which professional licensing boards become the arbiters of public discourse.

NEXT: Taking a Fresh Look at Presidential Power

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  1. Are Postsh the same as Posts? The title needs edit.

    1. Whoops, fixed, thanks (and thanks also to Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf for pointing out the block-quote glitch; fixed that, too).

  2. (Looks like a couple opinion paragraphs should be quoted)

    This sure seems like a no-brainer, both for a clear violation of freedom of speech, and clear retaliation in denying the license. The kind of opinion which makes a certain lawyer-hater seem correct.

  3. Courts should consider any denial of any license or permit a violation of due process rights unless the permitting or licensing body can affirmatively prove they decided using a procedure that respects rights. Apply intermediate scrutiny at least.

  4. Am I correct that the optimal outcome for Mr. Gray is a remand to see if he in fact acted with actual malice? If so, and if this is his best defense, I don’t think he’ll be opening shop in Bangor any time soon:

    I assumed Lt Ireland was off duty at the time of the shooting and noticed the police and news were not telling people that. So I posted to social media that Lt Ireland was off duty and possibly drinking. Many cops start drinking after a long shift. Lt Ireland is most likely of Irish heritage and that seems to be a reasonable question to ask.

    1. lol. That seems detrimental to his credibility as a private investigator.

      1. Though it would seem to make him eminently qualified (see what I did there?) to be a cop.

    2. Looking at your link, it turned out that Ireland WAS off duty, FWTW. As to whether he was “possibly” drinking, suggesting that was likely connected to the previous conflict between these individuals (Grey says that he’d filed a complaint against him before) but if he actually only said “possibly” I’m not convinced it was actionable.

      When choosing between cop and crook I’m by no means anti-cop (e.g., I’m convinced that Chauvin is innocent). But Blue Line stuff is a problem. Consider this one: Now, the first nine shots into the crazy guy with a knife (the story doesn’t admit this, but I believe he stabbed the other cop) were probably — it’s off screen – fully earned. But the last nine shots after he had collapsed, and the stomping, was execution. Again, I have limited sympathy for dangerous crazies, but I want my cops to have better self-control. Instead they said he did nothing wrong, gave him a medal, and promoted him. This is a problem.

      Now, not every complaint Grey raises is worth paying serious attention to. But I am interested in the trajectory of the bullets that killed the passenger. Are you really confident the investigation can be relied on?

      At your link Grey writes: “The Maine State Police accused me of being an incompetent, immoral liar for posting about this shooting on social media and said that my social media posts were equivalent to an investigative report that had the backing of the State of Massachusetts, because I hold a PI license there.” Maybe that’s just his spin on it, but it doesn’t strike me a necessarily any better than “possibly drinking”.

  5. Since this was a licensing for a position of (certain) trust (Private Investigator), at what point does a person’s honesty and integrity play a factor?

    I don’t really care if a hair dresser is also a liar; I do care if they might be involved in investigating criminal or civil matters.

    I ran a case of a candidate for federal officer and just about everyone I interviewed said the person wasn’t trustworthy and often would embellish stories – not qualities you want in someone investigation and reporting on federal criminal matters.

    Just saying if the position calls for someone who is reliable and trustworthy, then I don’t see a problem using the person’s own words against them – if those words tend towards unreliability or untrustworthiness.

    Not sure of the details of this case (don’t feel like looking), so am not sure of what the outcome should be.

    FYI, my candidate’s application was rejected due to a whole-person concept (not just the embellishment stuff).

    1. Perhaps customer should be the ultimate judge of honesty, not burrocrats whose government paychecks do not endow them with superior wisdom or knowledge.

        1. Yes, your comments often are. The Grey person seems no less reliable than you, so if you ARE an “IP lawyer” maybe it’s your license that ought to be yanked, what with equity and all..

    2. Why does a private investigator need to be trustworthy? He’s not granted any authority to act on behalf of the state, or to compel anyone to speak to him.

      1. I believe they are given some privileges, depending on jurisdiction. Why that should be is indeed questionable. Don’t know specifically about Maine.

        FWIW, here’s the Kennebec County Superior Court decision: I haven’t read it.

    3. at what point does a person’s honesty and integrity play a factor?

      The hypocrisy of you pretending to care about honesty and integrity aside…where in is post did he lie?

  6. Supporters of freedom expression couldn’t find an American lawyer who does not diminish the advocacy by engaging in viewpoint-driven censorship?

    A right-wing organization as amicus also might not help.

    “Maine can’t censor. Only I can censor!”
    — Eugene Volokh, “The Ballad of Artie Ray Lee Wayne Jim-Bob Kirkland”

    1. ^^^^^^^^^^^^^^^^^^^^^^^^
      Waste of brain cells warning
      For any one reading the above, Kookland is performing his weird trick of “footnoting” his dribblings with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.

      On the bright side, his tiresomely triumphal crystal ball doesn’t make an appearance, unless you count his confidence that the ME courts are as prejudiced against non-Prog amicus as he is.

      And then there’s the quote marks around a fake quote not obviously referring to anything. Very cryptic. Very stupid.

  7. In this case, Gray accused a police lieutenant of murdering a woman while drunk. He does not claim his accusatation is true, or was based on a competent or even a non-negligent investigation. His defenses are only that the statements were opinion and/or not so grossly negligent as to make his diregard for their truth reckless, i.e. actual malice. I will assume for purposes of this comment that Gray’s investigation was grossly negligent but fell slightly short of being reckless and hence meeting the actual malice standard.

    This person is applying for an professional investigator license. An obvious factor in such a license is professional competence in making investigations.

    While a person who makes wild accusations based on a grossly incompetent investigation which is slightly short of reckless might be immune from liability as a journalist, I don’t see how the First Amendment bars a state from considering that fact in considering whether the person conducts sufficiently competent investigations to merit a professional investigator license. A professional license is a atate imprimatur of conpetence in ones field. And competence in investigations is an obvious substantive criteria for competence as a professional investigator.

    Would a professional law license applicant be able to claim that the First Amendment bars the state from considering competence in law? If such a person had a record of wildly incompetent legal filings, the First Amendment would be no bar to considering that record in determining qualification for the license.

    Accordingly, while the First Amendment may insulate an incompetent investigator from direct legal sanctions for making accusations based on merely grossly negligent but not actually malicious investigations, it does not require that such a person be given a professional investigator license.

    1. It’s almost like the licensing board is applying a prior restraint.

      1. Huh? When the state doesn’t give people law licenses, it also restrains their future speech. Does the First Amendment bar it from considering their competence? Examinatikn papers are, after all, speech. By your argument, when the state doesn’t give people a law license based solely on the fact it doesn’t like the content of the speech they made in their examination papers, isn’t that exactly a prior restraint based on the content of their speech?

        The state can’t sanction people for not passing an exam. Why, then, should it be able to deny them a license over it? The First Amendment argument strikes me as pretty much the same.

        1. Licensure involves a mix of subjective standards and weak induction to predict future fitness in a specific profession. Speech on exams or work product, regardless of inherently being an opinion, goes into the inductive calculus by the licensing boards to restrain speech in the future that might potentially contradict the subjective standards set by the profession itself. Whether or not the professional standards are unconstitutional as-applied to the content of the speech is therefore context dependent.

          The limiting principle of actual malice seems to work for speech that has been presented as opinion and not as fact.

      2. Actually the state doesn’t restrain their speech. It only restrains their speaking as lawyers, with the state’s imprimatur of professional competence.

        Exactly the same applies here. Mr. Gray is not restrained from saying whatever he wants. He is only restrained from saying it as a professsional investigator.

        1. Good point. Mr. Grey was using the social media account of his private investigator business. If the licensing board had considered his personal social media accounts when making its decision, Volokh’s concerns would be justified.

      3. The best argument in Gray’s favor is that a license shouldn’t be required.

        That seems an unlikely outcome.

    2. I suspect the Supreme Court will treat the would-be professional investigator who claims a First Amendment right not to have to make a competent investigation the same way they treated the claims of the would-be university professor who claimed a First Amendment right not to have to publish.

    3. A professional license is a atate imprimatur of conpetence in ones field.

      I can’t believe you typed that with a straight face.

      1. conpetence….LMAO. That was classic serendipity. Nice catch.

        1. Also “atate”. And a missing apostrophe in “ones”, if one’s being pedantic.

        2. I mean, sure — but I was actually talking about the substance of the comment rather than the proofreading of it.

    4. In this case, Gray accused a police lieutenant of murdering a woman while drunk.

      Nothing Grey said was as inaccurate as this fart by you.

      Do you have some license to work in your field that ought to be yanked?

  8. I will bring out a commwnr made in an inner thread. Under Professor Volokh’s absolutist First Amendment argument, the standards for speech considered in giving professional licenses should be the same as for civil or criminal sanctions.

    Under such a view, the First Amendment would bar licensing examinations of any kind. Answers to examinations are speech. The state cannot subject you to civil or criminal sanctions because it doesn’t agree with your speech. If speech-based licensing requirements were really constitutionally the same as legal sanctions for speech, speech of any kind, including examinations, could not be considered in making licensing decisions.

    Moreover, where the profession largely involves speech activity — medical or legal advice, claims based on professional investigations – the First Amendment would appear to be an absolute bar to any state consideration of competence of any kind, except perhaps for recklesssness. What does competence mean, how can the state ever assess competence, except by evaluating the content of speech?

    1. Under such a view, the First Amendment would bar licensing examinations of any kind. Answers to examinations are speech. The state cannot subject you to civil or criminal sanctions because it doesn’t agree with your speech. If speech-based licensing requirements were really constitutionally the same as legal sanctions for speech, speech of any kind, including examinations, could not be considered in making licensing decisions.

      That’s a pretty silly caricature of Prof. Volokh’s argument, as well as a ridiculous attempt to pretend that basing licensing on the ability to correctly answer questions of fact on a test is anything even remotely akin to basing licensing on the public expression of opinions.

      1. If the question of whether someone murdered a specific individual is a question of opinion, how can there be laws against the practice? How can convictions based solely opinion satisfy Due Process? They are factual matters based on the results of investigations.

        Professor Volokh never argues that what Mr. Gray posted was opinion. His argument stretches exactly as far as I said – as long as Mr. Gray’s investigation was not so recklessly incompetent as to represent “actual malice,” , the First Amendment protects his account of its findings from being considered in evaluating his licensing exam.

        If you can’t consider the competence or even the gross negligence of an incestigation in a prefessional investigator license, and Professor Volokh argues you can’t, how can yoi consider exam results?

        After all, legal opinions often ARE opinion, far more often then murder investigation results. If you can’t consider the quality of investigations in investigator licenses, how can you consider things like the quality of legal reasoning in law licenses?

        1. How can convictions based solely opinion satisfy Due Process?

          They can’t, nor did I or Prof. Volokh in any way suggest that they can. That’s why legal proceedings generally involve stuff like evidence, rules, etc. If you’re trying to equate an “opinion” issued by a court with an informal “opinion” issued by an individual as a part of ordinary public speech simply because they involve the same word then you’re just playing childish word games.

          as long as Mr. Gray’s investigation was not so recklessly incompetent as to represent “actual malice,”

          Malice is not a product of incompetence, reckless or otherwise. It is a product of the conscious intent to do harm. The difference between the two things is pretty important.

          If you can’t consider the competence or even the gross negligence of an incestigation in a prefessional investigator license, and Professor Volokh argues you can’t, how can yoi consider exam results?

          Can we consider proficiency in English composition?

        2. As far as I can see, at no point in the brief is it conceded that Grey’s postings were the “results” of his “investigation” in any professional capacity. He instead characterizes it as such things as “public speech on controversial issues”. That they were “professional speech” may have been a question of fact decided below (if so, dubiously) that he can’t question on this appeal.

      2. Professor Volokh knows accusing someone of murder isn’t a matter of opinion. He never claimed it was. It is you who are caricaturing what he said by claiming opinion has anything to do with this case.

        1. It is you who are caricaturing what he said by claiming opinion has anything to do with this case.

          Of course it does. The individual in question expressed in the virtual public square his informal opinion (or his “belief” if you prefer) of the likelihood of something having happened, as well as some reasoning behind that opinion/belief. One would think that the difference between that and answering exam questions designed to test one’s knowledge of objective facts pertinent to professional licensing would be obvious.

          1. Rudy Giulliani among others tried something similar. They said they were merely expressed their sincere belief that Biden stole the election, Dominion rigged the voting machines, etc. Not so. Election fraud claims are matters of fact, not belief.

            So are murder claims.

            Murder is a question of fact, not belief.

            Again, Professor Volokh is arguing for a standard of actual malice, which requires more than gross negligence. In Professor Volokh’s view, a grossly negligent investigation could not be a bais for withholding professional investigation license.

            You seem to be ignoring the fact that the incompetence here is in his field. If a doctor tells a patient he sincerely believes injecting Chlorox will cure Covid, the sincerity of the belief doesn’t protect him from getting into licensure trouble. It’s not just a question of fact. It’s question of fact directly related to professional conpetence.

            Yes, licensed professional investigators can be required to conduct a better than actually malicious investigation before accusing people of murder, and such a requirement for a professional license is consistent with the First Amendment. The quality of investigations is directly related to professional competence.

            1. In Professor Volokh’s view, a grossly negligent investigation could not be a bais for withholding professional investigation license.

              You should probably not discuss Professor Volokh’s views without any reference to anything Professor Volokh said.

              You seem to miss that this wasn’t an “investigation.” He didn’t do a bad (or “grossly negligent”) job for a client. He just said some stuff online.

              1. Bingo.

                Totally agree no investigation is not a competent investigation.

                While ordinary people can just say stuff on line without there being any investigation at all behind it, the state can reasonably determine that, when what they say on lime is the proper subject matter of professional investigations, professional investigators can’t. If you want to say anything you want about the subject matter of the professional investigations field without conducting any investigation, you can. But you can’t do so and call yourself a professional investigator.

                Ordinary people are insulated from consequences when they recommend drugs with no attempt to investigate their condition. But Doctor’s aren’t. The subject matter of diagnosing and recommending drugs, while speech, is regulated when a doctor does it. It’s not a defense for a doctor to say “I never conducted any investigation.” It’s evidence of the problem.

                Exactly the same applies for professional investigators. I understand many on this blog oppose licensing generally and don’t think there should be such a think as licenses for professional investigators. But if you accept that licensing is constitutional, then the speech of professional investigators when accusing specific people of crimes can be regulated in the same manner as the speech of doctors is when making diagnoses and recommending drugs.

                I understand that many readers will see the two as very different in terms of what one thinks is good policy. But for constitutional purposes, if the state can regulate the one, it can regulate the other. It may be bad policy to license professional investigators. But it’s constitutional, and so is saying thst if you’re a licensed professional investigator, you can’t make statements about things that are the proper subject matter of the professional investigator without having conducted an investigation.

                Again, the fact that he made serious accusations without conducting any investigation at all may be a defense to liability, but it’s a valid reason to withold a professional investigator license.

                1. Totally agree no investigation is not a competent investigation.

                  So you’re saying that it’s valid to withhold an Investigator’s license on the basis of something he said that was not the result of an investigation, and as such not an example of his investigative skills/methods/knowledge/etc. And that somehow makes sense to you.

  9. #AbolishOccupationalLicensing

    Problem solved.

    1. Amateur kidney surgery is among disaffected right-wing misfits’ signature ideas.

      1. Arthur, with such a stupid response, it is no wonder you believe that a non-qualified individual would be hired anywhere in the US to perform any medical procedure.

        1. Kookland easily qualifies for any license requiring massive stupidity.

  10. Ah, Maine! Situs of the state-action bum rap against Vladek Filler, banana republic adorned from county to county with star chambers, state of institutional misandry; and hunting ground of the infamous shyster, Mary Kellett.

  11. The Department’s denial of Gray’s license should be subject to strict scrutiny. There is no “professional speech” exception to the First Amendment. Gray’s speech was not merely incidentally burdened as a part of a broader regulation of professional conduct. And the Department denied Gray’s license based on the communicative impact of Gray’s speech.

    This is pithy and powerful. Find an excuse to repeat this as close to the top as possible in any further written submissions.

    Good job, too, in succinctly stating and documenting your cert-worthiness argument.

    Best of luck in this representation!

  12. I’m just thinking out loud here: What strikes me as odd about this case is that a certain amount of deception makes one a more effective private investigators. Private investigators get information all the time by pretending to be something they’re not; nobody is going to spill their guts to someone who candidly tells them, “I’m gathering information for your ex-wife so she can ask the court for more alimony.” The type of person with a compulsive need to tell everyone in sight the truth, the whole truth, and nothing but the truth will not be a private investigator for very long.

    So at some level, maybe we just need to recognize that there are some professions in which honesty is not always an asset, and private investigator is one of them. Sun Tzu in The Art of War points out all conflict involves deception.

  13. Hell, the National Conference of Bar Examiners is just as dirty and rotten as that grimy nest of good ol’ boys in Maine. Does anybody ever call attention to that motley herd of goose-steppers?

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